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§ 36. Will of unmarried woman. A will executed by an un

married woman, shall be deemed revoked by her subsequent marriage.

Formerly 2 R. S. 64, § 44:

§ 44. A will executed by an unmarried woman, shall be deemed revoked by her subsequent marriage.79


Common Law. At the common law, marriage of a woman revoked her prior will, for it was essential to a will, that it should be ambulatory during the life of the testatrix; but as by marriage she disabled herself from making any other will, the instrument ceased to be of that sort, and was therefore void.8 This rule of law was manifestly proper, as otherwise the will, being irrevocable, would have operated in every case as an ante-nuptial settlement of the wife's separate estate, and it would have been in fraud of the husband if he were not benefited by it. It is, however, doubtful whether this was the only reason of the common-law rule on this point. The doctrine of implied revocations was independent of the power to revoke. 81

It was nevertheless, by the common law, well settled, that a subsequent marriage ipso facto revoked a woman's prior will.82 If the woman survived her husband, the will revoked by her marriage did not revive on his death, but continued revoked.83 A case in Plowden, cited by Mr. Powell, in his Treatise on Devises, held just the other way about,84 but the common law was finally settled as stated by Lovelass in his admirable work on wills.85

Plain as the common-law rules seemed, in the instance of the prior will of a married woman, the common law regarding con

. 79 Repealed, § 130, Decedent Es- 83 Hodsden v. Lloyd, 2 B. C. C. tate Law.

534. 80 Lovelass on Wills (ed. of 1839),

Powell Devises, 545, 367, citing 4 Rep. 60b; Cotter V. citing Plowd. 343. Layer, 2 P. Wms. 624; Hodsden 85 Lovelass

Wills (ed. of v. Lloyd, 2 B. C. C. 534; Brown v. 1839), 367, citing Mr. Lewis' case, Clark, 77 N. Y. at p. 373.

4 Burn's Ecc. Law, 51; Doe v. 811 Powell on Devises, 547.

Staple, 2 T. R. 695; Brown v. Clark, 82 Lovelass on Wills, 367.

77 N. Y. at p. 373.

84 1



structive or implied revocations literally bristled with difficulties; such as, whether testator's oral declarations modified the presumption, or whether the situation of the estate, settlements, etc., controlled animus revocandi. All these and like difficulties, the revisers intended to brush away forever. 86 But whether they actually provided for every case may, as we shall see below, be a question.

Revised Statutes. It will be perceived that the revisers of the Revised Statutes proposed to restate only the common law in this . section of the statute, viz.: (1) That marriage of a female revoked her prior will; (2) that death of her husband operated to revive it, or at least removed the suspension on its operation. But the latter part of the proposed section the legislature rejected, leaving standing the provision that her subsequent marriage revoked the prior will of an unmarried female.88

Construction of this Section. The expression of the statute that “ a will * shall be deemed revoked by her subsequent marriage" is now positive in respect of wills of females, and the statutory presumption of a revocation from the fact of her subsequent marriage is irrebuttable, and it can not now be explained away.89 Even a provision in the prior will for the future husband does not rebut the statutory presumption."

At the time the Revised Statutes took effect, the common-law disabilities of married women and the husband's rights over her property, jure uxoris, were in full force. The subsequent "Married Women's Acts" enabling a woman to deal with her separate property after coverture as if a feme sole, and giving her an entirely new and individual legal and statutory status on her marriage, had not yet been passed. The separate courts of law and equity, so familiar to English-speaking peoples of the eighteenth and early nineteenth centuries, were in full force. Only after the very revolutionary Constitution of this State, adopted in 1846, began the modern legislation fixing anew the status of the spouses on mar


86 See Revisers' Notes 8, 14, 15, Appendix II, infra.

87 1 Powell on Devises, 545.

88 See Judge Edmonds' note and Note 15 of the revisers, Appendix II, infra.

89 Lathrop v. Dunlop, 4 Hun, 213, affd., 63 N. Y. 610; Brown v. Clark, 77 id. at p. 373.

90 Matter of Mann, 51 Misc. 315.

riage. The old-school common lawyers generally disapproved of such reforms, and prophesied ill of the reconstruction of the family relations on theories, which were sure to be destructive of its unity, or lead to its utter disruption. One of the first questions which arose after the Married Women's Acts of 1848, 1849 and 1860 was, whether these enabling acts impliedly or constructively repealed this section of the Revised Statutes? It was held that they did

not. 91

Nor had this section any effect on the integrity and efficacy of an ante-nuptial marriage settlement of the wife's estate, although it was clothed with all the consequences of a will in disposing of such property after her decease. 92

Widows and Divorced Women. This section applies to a remarriage of a widow whose will was made during widowhood, and her subsequent marriage operates as a revocation. The section probably applies also to the remarriage of a woman divorced a vinculo, where the will was made after divorce, and even though such remarriage may be to her former divorced husband.94 A divorced woman who marries again, by her remarriage takes on the new status referred to in this section, which ipso facto is a revocation of her prior will if made after her divorce.95 A curious case may yet arise, when a woman during her first marriage makes her will, and is thereafter divorced and subsequently remarried to the same person whom she divorced. Does such former will stand under this section, or is it absolutely revoked by such remarriage ?96 Modern conditions tend to make this hypothetical case one not remote from probability. There is much room for argument on such a case, although the Court of Appeals has decided that this section excludes a revocation by a second marriage, where the prior will was made during a prior and different coverture.97 Such decision would appear in its reasoning to embrace the hypothetical case of a divorced woman, last put. Yet it is not an express adjudication, and where a final decision is not express there is an absolute right to review the implications. There were some points apparently not considered in the opinion in the case of McLarney.

91 Loomis v. Loomis, 51 Barb. 257; Lathrop v. Dunlop, 4 Hun, 213, affd., 63 N. Y. 610; Brown v. Clark, 77 N. Y. 369, affg. 16 Hun, 559, which reversed Procter v. Clarke, 3 Redf. 445.

92 McMahon v. Allen, 4 E. D. Smith, 519,

552. Cf. Lathrop v. Dunlop, 4 Hun, 213, affd., 63 N. Y. 610.

93 Kaufman v. Dillon, 131 N. Y.

620, affg. 61 Hun, 331; Croner v. Cowdrey, 139 N. Y. at p. 476.

94 See Matter of Burton's Will, 4 Misc. 512; Langston v. Astors' Executors, 16 N. Y. at p. 39.

95 Brown v. Clark, 77 id. at p. 373.

96 See note on meaning of the words “unmarried woman and “ without having been married," 15 Law R. Am. 292.

In the case supposed, of a divorced woman who remarries her former husband, her will, though made during the prior marriage, and by a woman who can not be described in law as then “unmarried,” is certainly ambulatory, and as such will is tacitly carried on into the unmarried state after the divorce, it necessarily then becomes the will of an unmarried woman." The date of a will is nothing, or inconsequential, as the will takes its legal effect only on the death of the testatrix.98 Having thus become, as just stated above, the will of an unmarried woman on her divorce, is it then to be regarded as revoked by her subsequent remarriage to the same man? It may be urged that the identity of the spouses on the second marriage is a mere accident, and that the question of revocation remains unaffected by such identity.

The Court of Appeals has held also, that the will of a married woman made during her prior marriage to another man is not revoked by this section, and the court would probably extend the decision to the case last supposed. The court did not, however, appear to notice in the McLarney case the important question, whether the Revised Statutes had not omitted to provide for the case of the remarriage of a divorced woman or whether in consequence the common law, relative to implied revocations of wills by subsequent marriage of females, did not still prevail in such a case under the constitutional reservation of the common law.

97 Matter of McLarney, 153 N. Y. 416.

98 It has been often held, that the omission of a date to a will is ot no legal consequence.

99 Matter of McLarney, 153 N. Y. 416, affg. 90 Hun, 361, which followed Matter of Burton's Will, 4

Misc. 512, where the opinion was based on the mistaken statement that but for the statute, the will of a feme sole would not be revoked by her subsequent marriage, whereas the common law was just the other way. See Lovelass on Wills, 367.

The express abrogation of all implied or constructive revocations by the Revised Statutes turns on a very narrow point, alluded to under section 34, Decedent Estate Law. They may have done so or not. The authorities generally affirm that they did, but after no particular presentation of the very point. The opinions on this point seem to have been delivered in arguendo, rather than as decisions of the legal question.

It is doubtless clear that the revisers of the Revised Statutes intended to abrogate all implied revocations of wills, and the courts have so held.? But the question is, have the revisers done so? If not, then does not the common law in such a case still control? It would seem that an affirmative would not be an improper answer to the latter question, for the common law, adopted by the Constitution, was intended to control in every case not affected by statute. To be sure, it is the more modern fashion to decide that the common law controls only provisionally and when suitable.3 Yet the legal presumption is, that the common law always controls, and the cases of Parker v. Footes and Myers v. Gemmel furnish a notable example of the rejection of the common law as unsuitable. In Myers v. Gemmel, the court finally rejected the common-law doctrine of "ancient lights ” as unsuitable to this country, where light was then so abundant and houses so few. The court did not consider that they were, by their rejection, in effect, abrogating that great legal doctrine, “Sic utere tuo ut alienum non ladas.Had Myers v. Gemmel been decided the other way, the condition, both economic and sanitary, of modern cities in America? would have been much less faulty than it is; so dangerous is it to depart lightly from the accumulated experience of a thousand years of

1 P. 252, supra . Cf. Havens V. Havens, 1 Sandf. Ch. at p. 334; Langdon v. Astor's Executors, 16 N. Y. at pp. 38, 39.

2 See Revisers' Notes 15, 18, Appendix II, infra, and p. 260, supra.

3 This phrase originally meant, “suitable to new political conditions," but has been stretched so as to apply to "existing conditions."

4 Canal Commrs. v. The People, 5 Wend. at p. 446; Paige v. Scheneca tady Railway Co., 178 N. Y. 102, 110; Mott v. Eno, 97 App. Div. at Pp. 584, 586.

5 19 Wend. 309.
6 10 Barb. 537.

7 Myers Gemmel was very broadly followed in America.

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