Morton v. Onion

The opinion of the court was delivered by Barrett, J. It is the opinion of the court that the rule, that the marriage of a woman revoked a will made by her before marriage, rested for its reason on the fact, that, by virtue of the hus [153] band’s marital rights, the woman becoming covert became thereby disabled to dispose of the property named in the will. The will ceased to be ambulatory. It is. only in view of the supervening rights of the hushand, accruing by the fact of marriage, as to her property, that the rule had any ground or reason. The change of condition effected by marriage, as that expression is sometimes used, derives all its significance, as well as its operative force, as a revocation of a will, from the fact that peculiar rights accrue to the husband in respect to the property owned by the wife at the time of, or coming to her during, her coverture. Under our statutes since 1797, that rule could have operation in this state only for the reason thus assigned, for they contain no disabling provisions. In the present case, considerable of the property disposed of by the will remained in the testatrix, unaffected upon her death, by any marital rights of the husband. We think the will entitled to be probated. As to the assent of the husband as affecting the disposition of personal estate of the wife by will, the true doctrine of the law seems to us to he stated by the lord chancellor in Lloyd v. Hodgson, 2 Bro. Ch. Rep. 534. To what extent the application of that doctrine may differ in this state from its application in England, on account of the difference as to the rights of the husband in reference to the personal effects of the deceased wife in the two jurisdictions, is not important now to be discussed or determined. The judgment is affirmed.