Cutter v. Butler

Bell, J. At common law, a will made by a married woman, disposing of her freehold estates, was entirely void. Shep. Touch. 402; 2 Bla. Com. 497; 2 Kent Com. 170 ; 4 Kent Com. 505; 3 Com. Dig. 15, Devise H. 3; Lov. Wills 96; Pow. Dev. 97; Burns’ Ec. Law 49; Marston v. Norton, 5 N. H. Rep. 205; Osgood v. Breed, 12 Mass. Rep. 225; West v. West, 10 S. & R. 445; Fitch v. Brainerd, 2 Day. 163; Bradish v. Gibbs, 3 Johns. Ca. 523; Picquet v. Swan, 4 Mason 443. Where her lands were placed in the hands of trustees, subject to be disposed of by will, a married woman might devise them by an instrument in the nature of a will, but which would be more properly an appointment, deriving its validity from the settlement or conveyance in trust. 2 Kent Com. 170; 4 do. 505; Pridgeon v. Pridgeon, 1 Cha. Ca. 117; Rex v Betlesworth, 2 Stra. 391; Fettyplace v. Gorges, 3 Bro. C. C. 8; Holman v. Perry, 4 Met. 492; Southby v. Stonehouse, 2 Vez. sen. 612. In this State, by the statute of 1845, (2 Laws p. 235,) a married woman is enabled to dispose of her real estate by. will. Such will must, like others, be proved in the probate — 351 — court. The power thus given extends to all lands, tenements and hereditaments, and all rights thereto and interests therein, whether legal or equitable. Rev. Stat. ch. 1 § 17. There is, however, a proviso, that such will shall in no case affect injuriously the rights acquired by the husband in any estate so devised, by virtue of the marriage contract. No statute has been passed here giving to married women the general power to dispose of personal property by will. By the Revised- Statutes, chap. 149 § 3, it is provided that whenever any married woman shall be entitled to hold property in her own right and to her own separate use, she may dispose of said property by will, as if she were sole and unmarried. The principle declared by this statute has long been an admitted principle in equity. Peacock v. Monk, 2 Vez. sen. 190; Fettyplace v. Gorges, 1 Ves.jr. 46; S. C. 3 Bro. C. C. 8; Rich v. Cockell, 9 Ves. 369; and in the ecclesiastical courts : Tappenden v. Walsh, 1 Phill. 352; Spitty v. Bailey, 16 Jur. 92; S. C. 10 L. & E. 570; and may well be regarded as merely declaratory of the common law : 2 Kent Com. 170; Holman v. Perry, 4 Met. 492; West v. West, 3 Rand. 373; Emery v. Neighbor, 2 Hals. 142; Strong v. Skinner, 4 Barb. S. C. 546; Society v. Wadhams, 10 Barb. S. C. 597. By the statute of 1846, ch. 327, (2 Laws 307,) married women have the same rights as they would have if unmarried, as to all such property as may have been secured to them to their own sole and separate use by a written contract entered into before marriage, or which may have been conveyed or devised to such married woman for such sole and separate use after the marriage. Under this statute no trustee for the wife is usually necessary. But as the husband is not empowered to convey any of his property to his wife in any other manner, or with any other effect, than he could do before the passage of the act, his conveyances must — 352 — be made as at common law, through the medium of a trustee. But the equitable interest so conveyed would be equally at the disposition of the wife by her will, as her legal estates, if the conveyance is in other respects valid. 1 Bla. Com. 442 ; 2 Kent Com. 129; Rev. Stat. ch. 1 § 17. By the Revised Statutes, chap. 149 § 3, when any husband shall have deserted his wife, and remained absent for three months, without making provision for the support of herself and her children ; or when any cause of divorce exists, or any facts which, if continued, may be such cause, and the wife is the injured party, she will be entitled to hold in her own right and to her separate use any property acquired by her by descent, legacy or otherwise, and may dispose of the same without the interference of her said husband or of any person claiming under him. And by § 4, if any woman, being the wife of an alien, or of a citizen of any other State, shall have resided in this State for the term of six months successively, separate from her husband, she may acquire and hold property in her own right, &c. No other provisions of the statutes of New Hampshire are recollected which apply to the wills of married women. Sec. 1 of chapter 156 of the Revised Statutes might seem broad enough to include the case of married women. “ Every person of the age of twenty-one years, and of sane mind, may devise and dispose of his property, real and personal, and of any right or interest he may have in any property, by his last will in writing.” But it has never been held to apply to the case of married women. Marston v. Norton, 5 N. H. Rep. 205; Osgood v. Breed, 12 Mass. Rep. 525; Anon. Dyer 354; Pow. Dev. 140; Morse v. Thompson, 4 Cush. 562. The cases which do not fall within these statutes must of course stand upon the general grounds of the common law. The following cases are recognized in the books which have come under our observation, in which at common law a married woman may make a will: — 353 — I. A married woman, executrix, might make a valid will of the personal property held by her in autre droit as such executrix : Shep. Touch. 402; God. Orph. Leg. 110; Plowd. 526; Fitz H. Executor 109; 2 Bla. Com. 497; 3 Com. D. 15, Dev. H. 3; Lov. Wills 166; and without her husband’s consent: Scammel v. Wilkinson, 2 East 552; Stowe v. Drinkwater, Lofft. 483. But by the Revised Statutes, chap. 158 § 9, marriage extinguishes the trust of an executrix or administratrix, and this case can never arise here. II. A woman, whose husband has been banished for life by an act of Parliament, may make a will: Co. Litt. 133 a.; Shep. Touch. 402; Dutchess of Portland v. Progers, 2 Vern. 104; Compton v. Collinson, 2 Bro. C. C. 385; Ex parte Franks, 1 Moo. & Sc. 1. So if her husband is transported. Newsome v. Bowyer, 3 P. W. 37; Goods of Martin, 15 Jur. 686; S. C. 5 L. & E. 586; or is an alien enemy: Deerly v. Mazarine, 1 Salk. 116; Lov. on Wills 266. Cases may perhaps arise here within the principle of these cases. III. Personal property maybe holden in trust, subject to the disposal of a married woman by her will, which she may not be entitled to hold in her own right nor to her separate use, so as to bring her case within the terms of the Revised Statutes, ch. 149, before cited. In such case her will relating to such' property will be valid and effectual by virtue of the power, as in the case of real estate at common law before stated, not as a will strictly, but as an appointment in nature of a will. 2 Kent Com. 170; 4 do. 505; Lov. Wills 266; Southey v. Stonehouse, 2 Vez. 212; 2 Bla. Com. 497. But still such will, to be effectual, must be proved in the court of probate. Lov. Wills. 266; Stone v. Forsaith, Doug. 707; Cothay v. Sydenham, 2 Bro. C. C. 391; Osgood v. Breed, 12 Mass. Rep. 525. IV. The husband may agree with the wife, or with one of her friends as trustee for her, either before the marriage, or after — 354 — the marriage, upon a sufficient consideration, (1 Roper, Hus. and Wife 169,) to allow her to dispose of certain property, or of a certain amount of personal property, by will; and such an agreement will be held binding upon the husband in equity, and her will will be held valid as an appointment under the power given her by such contract, and that without the assent of her husband. Lov. Wills 266; Newburyport Bank v. Stone, 13 Pick. 420; Tilley v. Pierce, Cro. Car. 376. Such a will, it is said, cannot be proved, as such, without the "assent of the husband; but it may be proved as a testamentary paper, and will derive its effect from the agreement of the husband, who will be held to its specific performance. 2 Roper Hus. and Wife 188; 2 Black. Com. 498; Stone v. Forsaith, Doug. 707, note. If a married woman has any pin money, or separate maintenance, she may dispose of her savings thereout by any writing, in the nature of a will, without her husband’s consent. Lov. Wills 266; • 2 Black. Com. 498; Prec. in Ch. 44. V. By the assent of the husband, the wife may devise her chattels real. 2 Black. Com. 497; Dr. & St. 1 Ch. 7. The phrase “ real estate ” in the statute of 1846, is sufficiently comprehensive to include this class of interests, but they are excluded from the operation of this statute by the proviso before referred to. Such chattel interests, at cqmmon law, survive to the husband, if he outlives his wife; 2 Kent’s Com. 134; Went. Ex. 196; 2 Black. Com. 497; Ognell’s case, 4 Co. 51; Moody v. Matthews, 7 Ves. jr. 183 : and her will, if carried into effect, must, therefore, injuriously affect his interest in relation to them. Her will as to these is valid on common law principles only. VI. She may dispose, by her will, of her choses in action, including debts and contracts due to her, and her right of action for goods carried away [Mens asports] before the marriage, by a like assent on the part of the husband. Johns v. Rowe, Cro. Car. 106; Finch v. Finch, Moor 339; S. C. — 355 — 2 And. 92; Anon. 1 Mod. 211; Scammell v. Williamson, 2 East 552; Stevens v. Bagwell, 15 Ves. 139; Shep. Touch. 402 ; 2 Bro. Abr. Testament. Such interests the husband, besides his right to collect or assign them, at his pleasure, during the life of the wife, has a right to claim for his own benefit after her decease, subject, however, to the burden of administering her estate, and to the payment of her debts. 2 Kent’s Com. 135; 2 Black. Com. 515; Whittaker v. Whittaker, 6 Johns. 112; Went. Ex. 197. VII. She may, by her husband’s assent, bequeath by will the persona] chattels in possession, which belonged to her at her marriage, or which have fallen to her afterwards. These, by the policy of the old law, became instantly upon the marriage, or upon their subsequent acquisition, the absolute property of the husband. Co. Litt. 351-6; 2 Kent’s Com. 143; Went. Ex. 196; Lov. Wills 266. This ancient policy is in itself both unjust and absurd; and at the present time the right of the husband to this kind of property, as well as to the wife’s choses in action, is regarded rather as a marital right, which he may insist upon or waive, as he pleases, and which if he does waive, the goods as between him and her representatives, remain the property, of the wife. Such waiver may be shown by an agreement on the part of the husband, either before or after the marriage, that the property should remain hers, or that he should allow her to dispose of it by will, or by any agreement by which it should appear that the right of the property as between them is to remain in the wife. 1 Roper Hus. and Wife 169; Estate of Wagner, 2 Ash. 448; Parsons v. Parsons, 9 N. H. Rep. 321; Marston v. Carter, 12 N. H. Rep. 164; Wheeler v. Moore, 13 N. H. Rep. 481; Coffin v. Morrill, 2 Foster’s Rep. 352. VIII. The wife, without any previous agreement, or any claim to the property which can be directly shown, may assume to dispose by her will of the personal property of the husband; and if the husband afterwards voluntarily — 356 — assents to such will, it will be effectual to pass the property, and will be a good and valid will, on the ground that such assent is evidence of an agreement between them, that the wife should have a right to make such disposal of the property, and of competent authority given by him to her to make it. Swin. Wills 89; 1 Rob. Wills 23; Shep. Touch. 402; and Í Bro. Ab. 236, Devise 34, where it is said a feme covert, by the assent and will of her husband, made a will, and devised the half of the goods of her husband and made her executor, who proved the will by the assent and will of the husband, and [her will was held] good. Otherwise it seems, if the husband prohibit the proving of the wife’s will after her death; for then the whole is void, for the husband may countermand it. And this happened at St. Al-bans in the 24 Henry VIII. Several of these cases agree in one respect, and stand upon the same reason. In these, the will operates directly to affect the rights of property of the husband, though not in all to the same degree. These are the devise of the chattels real and of the choses in action of the wife, of the chattels in possession of the wife, and of the personal property of the husband, where the will does not take effect by virtue of any power of appointment. In these cases the property is either in part, or absolutely and entirely, the property of the husband, and the title to it under the will of the wife, so far as it affects his interest, passes from him to the legatee, and it is his gift. Anon. Mod. 211; Went. Ex. 196 ; Prest. Touch. 402; Peacock v. Monk, 1 Ves. jr. 190; Pow. Dev. 164 ; Osgood v. Breed, 12 Mass. Rep. 525. Where the interest or rights of the husband are thus affected by the will of the wife, it is settled by decisions of the courts, too often repeated to be disregarded, that the will of the wife is entirely ineffectual without the assent of the husband. Johns v. Rowe, Cro. Car 106; Richardson v. Seize, 12 Mod. 306; Shardelow v. Naylor — 357 — 1 Salk. 313; 1 Rob. Wills 23; Ognell's case, 4 Co. 48; Lov. Wills 266; 2 Black. Com. 497; 2 Kent’s Com. 170. It therefore becomes material to inquire what is a sufficient assent of the husband to render such a will effectual. The following principles may, we think, be fairly deduced from the cases and books which have been found to bear on the subject. .. A general assent that the wife may make a will is hardly sufficient. There must ordinarily be evidence of an assent to the particular will which is made by the wife. 1 Rop. Hus. and Wife 169; King v. Bettesworth, 2 Stra. 891; 2 Black. Com. 497; 1 Bro. Ab. Devise 34. If there is a previous assent or agreement of the husband that the wife should make a will, very slight evidence of assent afterwards to a will in accordance with such agreement, will be sufficient. 1 Rop. 169; Brook v. Turner, 2 Mod. 170. At one period, it was held that the husband must assent at the time of the probate. Swin. Wills, pt. 2, § 9, pi. 10; 1 Burns’ Ec. Law 52; Henley v. Philips, 2 Atk. 49; Anon. 1 Mod. 211; and might revoke his consent at any time during his wife’s life, or after her death, before probate. 1 Rop. 169; Swin. Wills 89; 1 Burns’ Be. Law 52; Anon. 1 Mod. 211. But it is now held that if the husband assent to the will after the death of the wife, he will be forever bound, and any subsequent dissent will be immaterial. 1 Rob. Wills 23; 1 Rop. 169; Maas v. Sheffield, 10 Jur. 417. The husband’s assent may be shown by circumstances as well as by direct proof. 1 Rop. 169 ; Lov. Wills 266. If after the wife’s death, the husband suffer the will to be proved, and deliver the goods accordingly, the testament is good. Shep. Touch. 402. A feme covert devises goods, and the baron delivers the goods to the executor of the wife, the court, upon this pre — 358 — sumption, adjudged that the baron gave precedent assent to the making of the will. 5 Ed. II, cited in Moor 192, pi. 341; 4 Vin. Ab. 164. If the husband consent that his wife shall make a will, and accordingly she doth make a will and dieth; and if after her death he comes to the executor named in the will, and seems to approve her choice, by saying that he is glad she appointed so worthy a person, and seems to be satisfied in the main with the will, and recommends a goldsmith and coffin maker and scutcheon painter to be employed by him, this is a good assent, and makes it a good will, though he afterwards opposed the probate. His disagreement, after his former assent, will not avoid the will, because such assent is good in law, though he knew not the particular bequests in the will. Brook v. Turner, 2 Mod. 170; 2 Keble 624, pl. 3; S. C. 4 Vin. Ab. 164. A married woman made her will with the consent of her husband, expressed at the time, and testified'by his being a subscribing witness to it. After her death, but before probate, he obtained the will, for an alleged particular purpose, from the alleged universal legatee therein named, giving the legatee at the time a written memorandum containing his sanction of the will. Subsequently he took out letters of administration to his wife as dead intestate. It was held he could not withdraw his assent so given, and that an allegation pleading the above facts, and others in connexion, was admissible on the part of the universal legatee seeking to establish the will. Maas v. Sheffield, 10 Jurist 417, cited in 5 Harr. Dig. 1654. In Vermont, it is held that the assent of the husband to the wife’s will, under his hand and seal during the coverture, will be sufficient. Fisher v. Kimball, 17 Ver. (2 Wash.) 323. In the present case, it appeared that the property in question belonged to the wife before her marriage, and the evidence of the defendant tended to prove the assent of the — 359 — husband before and during the marriage, that the wife should make a will and dispose of the articles in question ; that the will was proved in solemn form without objection; that the husband was present when the inventory was made, and pointed out the articles which belonged to the wife, and suffered the executor to take them away without objection. This evidence, if believed, would have been proof of assent entirely sufficient. It is now well settled that the will of a married woman, whether it operates by virtue of a power or otherwise, is so far of the nature of a will strictly, that it must be executed in conformity to law; Casson v. Dade, 1 Bro. Ch. 99; and it must be proved in the court of probate. Anon. 1 Mod. 211; Stone v. Forsaith, Doug. 707; Ross v. Ewer, 3 Atk. 156; Jenkins v. Whitehouse, 1 Burr 431; Cathay v. Sydenham, 2 Bro. C. C. 392; Rich v. Cockell, 9 Ves. jr. 369; 2 Rop. 188; Lov. Wills 266; Osgood v. Breed, 12 Mass. Rep. 525; Bank v. Stone, 13 Pick. 420; 4 Kent’s Com. 505; Society v. Wadhams, 10 Barb. S. C. 606; Picquet v. Swan, 4 Mason 443. The probate, if the will embraces different kinds of property, as in this case, will be limited to the property which the wife had the power to devise. Tappenden v. Walsh, 4 Phill. 352; Moss. v. Brander, ibid. 254. The court of probate has, consequently, jurisdiction to decide upon the proof of the will; and having such jurisdiction, its decisions are binding and conclusive upon parties and privies, as to the testamentary capacity of the wife, so far as relates to the property devised. Osgood v. Breed, 12 Mass. Rep. 525; Bryant v. Allen, 6 N. H. Rep. 116; and as to the assent of the husband to the will, where such assent is necessary to give it effect; and it would seem, as to his assent, that the particular property should pass by the will, so far as it is set forth and described in the will. If the husband designs to controvert either of these things, the time and place appointed for that purpose by the law, would — 360 — seem to be the courts of probate, at the time of the allowance of the will, and not afterwards nor elsewhere. However this may be, the evidence offered in this case was competent to establish a good defence, and the verdict must be set aside.