Opinion
December Term, 1824.
A feme sole makes a will, marries, and survives her husband; the will is good.
Otherwise now by Revisal, 3116 — ANNOTATOR.
THIS was an issue, will or no will, and on the appeal of the defendants stood before the court on a rule to show cause wherefore a new trial should not be granted. The facts are that Mary Wood, then Mary Spruill, on 26 November, 1818, duly executed the paper-writing offered as a will in the presence of two witnesses, and placed it in the hands of Popleston for safe keeping; that afterwards Mary Spruill intermarried with Wood, and previous to her marriage executed a settlement, conveying all her estate, real and personal, to trustees; Wood died, leaving his wife surviving him, and the trustees after his death reconveyed the estate to the wife. The will continued in the hands of Popelston uncanceled until the death of Mary Wood; and the said Mary, after the death of her husband, and after the reconveyance of the estate to her by the trustees, told Popelston to take care of the paper, for she wished it to stand as her will.
The court below held that the marriage settlement was a revocation of the will, and that it could not be republished by parol so as to pass the real estate, but that her declaration to Popleston amounted to a republication as to the personalty, if it were so intended.
If a will be made before marriage, and the wife survive the husband, is it a republication? It is not to be controverted at the present day that the marriage of a feme sole is in law a revocation of a will made by her. Loe v. Staple, 2 Term, 684; though it is to be remembered that the reason of this rule is not, as has been sometimes supposed, an incapacity of the feme to make a will arising from the state of converture. The rule proceeds on a (299) well-known maxim of the common law, which, deriving no support from the artificial refinements of technical reasoning, carries at once conviction to the understanding by the simple force of reason and truth. The truth is that, as a will is ambulatory, in other words, as it may be altered or revoked to the very last moment of the testator's existence, there must not only be a capacity to devise at the time of making, but also at the time of consummating the will, viz., at the death of the testator. Now, as the wife could not control her property after marriage, no matter what events might render it necessary, there is a propriety in annulling entirely any distribution made of her property; lest if supported or not annulled it might contravene her wishes in its subsequent disposition founded on events arising during coverture; for if there be reason in permitting a feme sole to exercise her understanding in making or altering a will, equal reason is there that when the law declares that by marriage she has technically lost understanding, if I may so speak, to make or alter a will, she shall not be prejudiced by an adherence to that already made; she shall be intestate.
But the question now presented is not as to the effect of marriage on the will of a feme sole, but as to the effect produced by her surviving her husband, having made a will dum sola; and it must be confessed that contradictory opinions have been given on the point. In its investigation, while I readily admit the propriety of the rule stare decisis, I would yet respectfully examine and weigh the reasoning advanced in support of the different opinions.
In support of the idea that the will is effectually and completely revoked by marriage so that survivorship of the wife does not republish it, the reasoning, when condensed, appears to be as follows:
It is essential to the nature of a will that it should be ambulatory and liable to be altered or revoked at any period during the life of testator. A woman by marriage disables herself from making, altering, or revoking a will, and therefore upon marriage the (300) instrument needs one essential characteristic of a will, viz., liability to alteration or revocation, and, of course, must cease to be a will; and having once ceased, continues to be no will, whether the wife survive or not.
This argument, in fact, begs the question; it is founded on a fallacy; it assumes that because at one period, viz., during coverture, it loses the character of a will, it loses it at another period, viz., after coverture has ceased. Now, the very question in controversy is whether the paper is to be construed in the same light during coverture and after coverture. It is an admitted point that during coverture the will is revoked, and the reason has already been assigned; but that reason can apply with no propriety to the paper after the coverture has ceased. The truth is that the argument above can never prove more than that during coverture the will is revoked, and if the wife dies during coverture she dies intestate. But the ground taken in it really supports the idea that the will is established again by the survivorship of the wife; for it is said that the will is ambulatory; this is true, and this character belongs to it until testator's death. If, then, during testator's life its ambulatory character should be suspended, not destroyed, by a technical reason, viz., that the wife has no will because of coverture, it would seem that when this technical reason was removed by husband's death, it should again be ambulatory on the obvious principle that cessante ratione, cessat et ipsa lex.
Again, the case now before the Court serves to illustrate the ground on which, in one class of cases, the survivorship of the wife gives validity to her will made dum sola; I mean that class in which no change in testator's situation has been produced by marriage. Thus we see Mary Spruill, while sole, selecting the objects of her benevolence and distributing her bounty among them. In this act she has furnished conclusive evidence that in the situation in which (301) she stood when unmarried she desired to make such and such a disposition of her estate. We find her years afterwards in precisely the same situation. The law will scrupulously respect her desires in disposing of her property, as it will those of every person, provided the ceremonies required in declaring those desires be complied with, and it is unwilling that she should die intestate. Is it not a very fair, nay, the only rational, presumption that, as under certain circumstances she devised or bequeathed in one way, that under precisely the same circumstances she would wish to make precisely the same disposition of her effects, more especially as a contrary desire might so easily have been expressed by a new will, and as the intention not to die intestate under these circumstances has so plainly been expressed by the will already made?
An attempt has been made thus far to consider the question without reference to authority; but this is not wanting in support of the position that upon the death of the husband the will is republished. A leading and very early case in which the subject is referred to is Brett v. Regden, Plowd., 343a, in which it is thus put: A feme sole makes her will on 1 May, and gives land thereby, and afterwards on 10 May she takes husband, who dies on 20 May, and afterwards the woman dies on 30 May; the devise is good, and yet, if it should be considered according to the time of the date, the will would be countermanded by the espousals; but it is not so, for it does not take effect until her death, at which time she was discovert, as she was at the time of making the will, and the intermarriage shall not countermand that which was of no effect in her lifetime. The reason, viz., that a paper, which must owe its validity to the death of its maker, and during his lifetime is of no effect, cannot be affected by any circumstances arising before it is of effect, is to my mind unanswerable. This respectable authority is sustained by Godolphine, Orph. Leg. fo., 29, sec. 1, and Forse v. Hambling, 4 Coke; 61; to which I would add, that without intending to quote the book as an authority, for it is but a compilation, though a most respectable one, the same doctrine is laid down by Cruise, title Devise, ch. 6, sec. 47. I am therefore of opinion that the will of Mary Wood, made when she was Mary Spruill, is good and effectual to pass both realty and personalty, and that a new trial should be granted.
This is a question on which the elementary writers differ, and I cannot find a single common law adjudication on the point. We must, therefore, resort to first principles to decide the case. A last will being in its nature revocable and ambulatory, and being supposed to contain the last wishes of the maker as to the disposition of his property after his death, requires that the maker should be a free agent, not only at the time of making the will, but also at the time of death; otherwise, the power of revocation, which is incident to the very nature of a will, could not be exercised. But I can see no reason why this free agency should continue uninterrupted from the making to the time of death. I think the reason of the thing is answered if it existed at the time of death, and that a temporary want of free agency, such as is effected by the marriage of the maker, being a feme, operates only as a suspension and not as a revocation. If she dies during the marriage, the will is considered as revoked, for if she had desired to revoke it she had not a free will to do it; the law, therefore, does it for her. But if she survives her coverture, and does not revoke it, there is no necessity for the law doing it, for had she desired it she could have done it herself, marriage in this respect operating like captivity. And it seems agreed by all that if a person makes a will and is after taken captive, it operates only as a suspension of the will, and if the maker dies in captivity the will is revoked, but if he regains his liberty it sets up his will again without any republication. But it is said that (303) marriage is different from captivity, because it is voluntary and captivity involuntary. It is true, there is that difference; but I cannot see that different results, not connected with the question whether the situations were voluntarily or involuntarily assumed, should be drawn from it. If the want of the power of revocation was inflicted as a punishment for crime, then it would be all-important to make this difference in the results; but we know that it is not. The want of that power, to wit, of revocation, arises from want of free agency in both cases; and it is, I think, restored by the restoration of free agency in both cases. This case has also been compared with revocations or rather ademptions, by a feoffment or grant of the lands devised, although the devisor takes back the same estate in the lands. The cases, I think, are very unlike each other. A devise of lands is looked upon as a conveyance, not as a testament is in the civil law, an appointment of an heir; therefore, a person must have that which he devises, as he must have that which he grants, and there can be no estoppel in wills as in deeds, by which the devisee could take as in case of a deed, for estoppels operate only where there are parties, and there are no parties in a will. The will being ambulatory and revocable it is necessary that the devisor should not only have the power to devise, that is, to grant when he makes his will, but that he should have the uninterrupted power up to the time of his death: by power here I mean ownership in the land. If, therefore, he disposes of the land, the will is revoked, because he has not the thing which is attempted to be granted; and being revoked, a repurchase of the land does not set up the will again, for that can be done only by republication, and a repurchase bears no analogy to a republication. The will in such case is revoked, not because the devisor intended to revoke, but because he had not the power to devise, to (304) grant, for he could not grant that which he had not. The revocation, therefore, in such case is not dependent on free agency; for if in the same conveyance devisor takes back the same estate, yet it is a revocation, which shows that the revocation does not depend on intent. I have used the term revocation in deference to authority, but it is rather an ademption, and, therefore, I have not noticed the marriage settlement; for no question growing out of it can arise upon the probate of a will, and can only arise in contracts about the property devised between the heir and devisee. I, therefore think that the testatrix, being unmarried at the time of making her will and at the time of her death, the will is a good one, that is, not revoked. For these reasons I am of opinion that a new trial should be granted.