Kurtz v. Saylor

The opinion of the Court was delivered, by Black, C. J. This case depends on the right of Catharine Saylor to make a will; not on the question what property the will would pass. She might make a valid will, and the executor could take nothing under it for want of title in the testatrix; or she might be entitled to large possessions in her own right, and die intestate, because she had no power to make a will. The points of law involved in the cause may be stated briefly in the following propositions :— 1. The original will, which was made in 1833, is to be taken as revoked by her subsequent marriage (which took place in 1834), agreeably to sec. 16 of the general act relating to wills. 2. The codicil of 1841 was a republication of the will, and revived its legal force, if she had authority to dispose of her property by last will and testament at that time. 3. She had no such authority by the act of 1848, because it was not then passed, and her right to make a will is to be determined by the law as it stood then, and not by the statutes in force at the time of her death. This is decided in Mullen v. McKelvy, 5 W. 399; see also Dwarris on Stat. 685. 4. We must therefore fall back on the act of 1833, the only one which was in force at the date of the will; and this act, in sec. 3, provides that a married woman may, by the assent or license of her husband, dispose of her personal estate by will. 5. The evidence proved the consent of the husband that the wife might do as she pleased with the rest of her property if he got $1000. This is no more than a mere general license to make a will, even if it amounts to that. 6. But a general license to make a will is not sufficient. It must be a special authority to make the particular will in question. This we consider the natural meaning of the act, and is in accordance with the construction given to similar statutes elsewhere Lovelass on Wills 266; 2 East 552; 15 Vesey 139. 7. It follows that this will is void for want of power to make it; that there is no error in the record; and that the judgment is to. be affirmed. Judgment affirmed.