Chapman v. Dismer

Mr. Chief Justice Alvey delivered the opinion of the Court: The only question presented on this appeal is, whether the marriage of the testatrix after the making of her will did or did not revoke the will? This depends entirely upon the effect and operation of the statute law in force in this District, in respect to the power and capacity of a jeme covert to make a valid last will and testament of her property, without the consent of her husband. Section 728 of the Revised Statutes relating to this District is as follows: “ Any married woman may convey, devise and bequeath her property, or any interest therein, in the same manner, and with like effect, as if she were unmarried.” This section is part of the Act of Congress of the 10th of April, 1869, and is still in force, unrepealed or affected by the Act of Congress of June 1, 1896, entitled “An act to amend the laws of the District of Columbia, as to married women,” etc. This provision of the statute invests the married woman with the same full and unqualified testamentary capacity as that possessed by an unmarried woman or a man; and there is no more reason for holding that a subsequent marriage alone will operate a revocation of the will’ of a woman than there is for holding that subsequent marriage alone will operate a revocation of the will of a man. There is in fact and legal effect no distinction between the two cases. They both stand upon the same principle and are controlled by the same reason. Before the passage of the statute just quoted, and while the common law principle prevailed, the marriage of a woman in this District absolutely revoked her will, and that, too, though her testamentary capacity was subsequently restored by the event of her surviving her husband. Force and Hembling’s Case, 4 Rep. 61; Cotter v. Layer, 2 P. Wms. 624; Doe v. Staple, 2 T. R. 695. So that, after [452] her marriage, a woman could neither make a will nor revoke a will previously made; and hence, by operation of law, a will previously made by her was revoked. Having made a will before marriage, if the marriage did not operate a revocation, the will would lose its ambulatory character, and become a permanent and determinate dispotion of the property. This would at once destroy the very essence and distinguishing nature of a will. It is true, as contended by the appellant, that the principle of the common law, whereby the marriage of a woman revoked absolutely her previously made will, has for centuries been a settled rule of property; and therefore could only be changed by some decisive legislative provision. But that ancient principle of the common law has been radically changed by modern legislation; and the legislation of Congress for this District, upon this subject, has been as radical as that of any of the States of the Union. And while it is true that the statute is not explicit in declaring that the marriage of a woman shall not operate a revocation of a previously made will, yet a rational construction of the statute leads necessarily to that result. By the terms of the statute, a married woman may make and revoke her will at pleasure; and if the will be made before marriage, why should the law, by its mere operation, because of the subsequent marriage, revoke the will, and thus make it necessary for re-execution or republication the next hour, it may be, after the marriage? The reason, according to the common law principle, for making the marriage operate a revocation is, as stated by the Court of King’s Bench, in Doe v. Staple, 2 T. Rep. 695, 697, that the marriage must have the effect of revocation “because a will supposes a disposing power at the time in the person making it, and that it shall be always afterwards subject to his control; but that is not the case with a woman after coverture; for when she enters into that engagement she gives up the right to her property.” It is, as was said by Lord Chief Justice Kenyon, [453] “that the will of a woman made before coverture ceases to be her will afterwards; because it is of the essence of a will that it should be valid during the remainder of the devisor’s life. Therefore, the will of a feme sole ceases to have any operation after she becomes covert.” The reason, therefore, at the common law, for the revocation of the will of a feme sole by subsequent marriage, is, that, by such engagement, she lost the control and disposing power of her property; and consequently the will could not have a continuous operation and vitality during her life. But it is the prime object and purpose of the statute to change the law in this respect, and to invest the married woman with complete control and disposing power over her property; and the disposing power that she may possess at the time of her marriage she continues to possess as if she were unmarried, until she may think proper to exercise her disposing power. It would be quite inconsistent with this statutory power of disposition that the previous will should be revoked, upon the principle of the common law, that, by the marriage, she ceased to have disposing power and control of her property. There would certainly be no reason or sense in attempting to preserve and apply the mere result of an old common law principle, when that common law principle, with the reason upon which it was founded, has been abrogated and annulled, and an entirely new principle and policy substituted. We are clearly of opinion that the subsequent marriage of the testatrix did not revoke her previous will. This question has been the subject of judicial determination in several of the appellate State courts of the country, upon statutes not broader or more comprehensive than the section of the Revised Statutes to which we 'have referred; and those courts have held, as we hold in this case, that the subsequent marriage of the woman did not revoke her previous will. And without stating the facts of those cases, or quoting from the decisions, we deem it sufficient to refer to [454] the cases as reported. Fellows v. Allen, 60 N. H. 439; Noyes v. Southworth, 55 Mich. 173; Roane v. Hollingshead, 76 Md. 369; Emory v. Appellant, 81 Me. 575; In re Wills of Lyon, 96 Wis. 339, 340, 341; Will of Esther R. Fuller, 79 Ill. 99-102. It follows from what we have said, that the order appealed from must be affirmed; and it is so ordered. Order affirmed.