Kurtz v. Saylor

• Decision Date: 17 May 1852
• Citation: 20 Pa. 205
• Parties: Kurtz v. Saylor.
• Court: Pennsylvania Supreme Court

20 Pa. 205

Kurtz v. Saylor.

Supreme Court of Pennsylvania.

May 17, 1852

1852

1. A will by a married woman, made on the 4th April, 1833, was, by the 16th section of the Act of 8th April, 1833, relating to wills, revoked by her subsequent marriage in 1834.

2. A codicil in 1841 was a republication of the will, and revived its legal effect, if it had any by her possessing authority to make it.

3. But a will made in 1833, if invalid for such want of authority was not validated by the Act of 1848 passed during her lifetime. Her right to make a will was to be determined by the law as it existed when the will was made, and not as it was at the time of her death.

4. By the Act of 8th April, 1833, a married woman, with the assent or license of her husband, may dispose of her personal estate by will. But a general license to make a will is not sufficient; it must be a special authority to make the will in question.

ERROR to the Common Pleas of Montgomery county.

There were two issues formed in the Court below, upon the precept of the Register of Montgomery county, to try the validity of the will and codicil of Catharine Saylor, deceased, formerly Catharine Smith. In the issues Samuel Kurtz and others were plaintiffs, and Godfrey Saylor was defendant.

The testatrix was twice married. After the death of her first husband, she was possessed of considerable real and personal estate in her own right; and, on the 4th April, 1833, while she was still a widow, she executed the will in dispute.

On the 9th February, 1834, the testatrix was married to Godfrey Saylor, the defendant. On the 5th May, 1841, the testatrix executed the codicil in dispute. To both the will and codicil she put her mark instead of her name. In the will she directed her real and personal estate to be sold and the proceeds distributed. In the codicil the distribution was altered. It was provided in the codicil that it be annexed to and made a part of the will aforesaid. The testatrix died in the month of September, 1849, leaving her husband, Godfrey Saylor, still living.

The plaintiffs, to sustain the will and codicil, offered evidence in the Court below of the contents of a written contract executed between the testatrix and the defendant prior to their marriage, which, it was contended, authorized her to dispose of her real estate by will, the instrument itself having been destroyed, after marriage, by the defendant.

The plaintiffs further gave evidence to show that the defendant had, subsequently to his said marriage, a second time given his consent to the testatrix's authority to make a will, for which he received, as a consideration, the half of the proceeds of the sale of certain real estate belonging to the said testatrix, and that during marriage he always treated his wife's property as her separate estate.

By the second section of the Act of 8th April, 1833, it was enacted that a married woman may, under a power legally created for the purpose, dispose of her real and personal estate by will, or appointment in nature of a will; and that any married woman may, with the assent or license of her husband dispose of her personal estate by will.

Sect 16. A will executed by a single woman shall be deemed revoked by her subsequent marriage, and shall not be revived by the death of her husband.

In the seventh section of the Act of 1848 it is enacted that " any married woman may dispose, by her last will and testament, of her separate property, real, personal, or mixed, whether the same accrue to her before or during coverture: provided, that the said last will and testament be executed in the presence of two or more witnesses, neither of whom shall be her husband."

KRAUSE J., charged, inter alia: --

" If the marriage was after the date of the will, the instrument was revoked by the 16th section of the Act of 1833, or by the law as it stood before. She, however, made a codicil, dated 5th May, 1841, as it would seem, after her marriage; and if she had legal capacity then to do so, that would be a republication of her former will, and make both one valid instrument. But by the Act of 1833 she had no such capacity, if she was then a married woman, unless a power for such purpose was legally created for her so to dispose of her estate. The provision in her favor is, ‘ that a married woman may, under a power legally created for the purpose, dispose of her real or personal estate by will, or appointment in nature of a will; and that any married woman may, with the assent or license of her husband, dispose of her personal estate by will.’ Consequently, the jury will look to the testimony for the facts on this point, to see whether a power legally created for her, for such purpose, is shown; or whether she made her codicil by the assent or license of her husband, as respects her personal estate. The power, however, which is sufficient to dispose of her real and personal estate by will, or appointment in the nature of a will, must be an express one, and cannot be implied from a general right at the time, by a marriage contract, or otherwise, to control or alien her property. It must be an express power to dispose of it by will or appointment. And as it regards her personal estate, the assent or license of her husband must not be general to make a will, but the will in question. So the Court instructs the jury on the Act of 1833.

But the plaintiffs insist, that by force of the Act of 1848, in relation to the rights of married women, which it is said is retroactive in its operation, these instruments must be sustained as testamentary dispositions of her property. That act, however, has no such retrospect. It is specially restricted to property owned by or belonging to single women --such shall continue to be theirs as fully after their marriage as before; and next, to such as shall accrue to a married woman during coverture. Both provisions are plainly prospective from the date of the statute; and, therefore, if the jury find the property involved to have belonged to the testatrix before the date of said Act, or not to have accrued to her during her coverture, after the date of said Act, none of its provisions will sustain these papers as valid, either as will or codicil.

But the plaintiffs affirm, again, that there was a marriage contract, and rely on that for power in the testatrix to dispose of the property in question by will. There is evidence of such contract in the testimony of more than one witness. If such contract was made before or after the marriage, giving to the testatrix an express power to make a will, or an appointment in the nature of a will, or such assent to dispose of her personal property, as before stated, these instruments are good; otherwise they cannot be held valid on this ground."

November 25, 1850, verdict was rendered in favor of defendant.

It was assigned for error, 1. The Court erred in charging the jury that the Act of 11th of April, 1848, does not apply to the case; and in their construction of that Act.

2. The Court erred in charging the jury that, as respects this personal estate of the wife, the assent or license of the husband must not be general to make a...