Swan v. Sayles

Field, C. J. Albert W. Sayles died on October 9,1894, leaving a will duly executed on April 29, 1891, and a codicil duly executed on February 27,1892. He was married to Lillian H. Sayles on March 10, 1892, and she survives him as his widow. No issue was born of this marriage. It does not appear from the will or codicil that either was made in contemplation of the marriage. The question is whether these instruments were revoked by the marriage, in consequence of St. 1892, c. 118. The rule of law on this subject before this statute took effect is stated in Swan v. Hammond, 138 Mass. 45. The statute took effect on July 1, 1892. It is apparent that the will and codicil were not immediately revoked by the marriage, because by the law as it was at that time marriage did not revoke the will of a man, and the statute was not then in existence. Did the statute of its 178 own force, when it took effect, revoke the will and codicil ? It is said that wills are ambulatory, and are revocable at any time before the death of the testator; and it is true that a person may revoke his will at any time before his death, and that a statute revoking wills at any time before the death of the testator for any cause probably would be within the constitutional power of the General Court. The sole inquiry is, What is the intention of the statute ? The general rule is, that statutes are to he construed as prospective in their operation. Shallow v. Salem, 136 Mass. 136. Commonwealth v. Hayes, 149 Mass. 32. Pierce v. Cabot, 159 Mass. 202. French v. Hussey, 159 Mass. 206. In Illinois and Connecticut the courts have construed statutes similar to this of ours as operative only when the marriage took place after the statutes took effect. In re Tuller, 79 Ill. 99. Goodsell’s appeal, 55 Conn. 171. Such, we think, should be the construction given to St. 1892, c. 118. The fact that the statute was approved on March 31,1892, but was not to take effect until July 1, 1892, does not, in our opinion, affect the construction to be given to it. If the intention had been to make the statute operative in cases where the marriage took place before the statute took effect, if the testator died after that time, there was no difficulty in saying so in plain words. Decree affirmed.