In re Last Will & Testament of Ward

• Decision Date: 13 December 1887
• Citation: 70 Wis. 251,35 N.W. 731
• Parties: IN RE LAST WILL AND TESTAMENT OF WARD.
• Court: Wisconsin Supreme Court

70 Wis. 251

35 N.W. 731

IN RE LAST WILL AND TESTAMENT OF WARD.

Supreme Court of Wisconsin.

December 13, 1887.

Appeal from circuit court, Sauk county; ALVA STEWART, Judge.

This action was tried before the county court, and, upon a judgment setting aside the will, the executor, Hiram Lee, appealed to the circuit court. It is, in effect, found by the circuit court that several years prior to 1870 the deceased, Ann Ward, married one Thomas Lee, and by him had seven children, all of whom are now living and of full age; that in 1870 said Thomas Lee died, leaving said Ann him surviving; that the estate of which the said Ann was possessed at the time of her death came to her through the last will and testament of the said Thomas Lee; that thereupon the said Ann married one John Spaulding; that June 23, 1877, and during such coverture, the said Ann, in the name of “Ann Lee Spaulding,” duly executed the paper writing here propounded as her last will and testament, in the presence of three attesting witnesses, each of whom, at her request, and in her presence, and in the presence of each other, subscribed the same as such witnesses; that two of her sons were nominated and appointed as executors therein, and her property was therein given to all of her children, except one; that said John Spaulding died in 1880, leaving said Ann him surviving; that in 1882 said Ann married one Charles Ward; that in 1885 the said Ann died in Racine county, where she was domiciled at the time, leaving her surviving the said Charles Ward; that said Ann never had any children or child by either the said Spaulding or Ward; that said Drinkwater, mentioned in the order and judgment of the county court, was never related to the said Ann. As conclusions of law, it was found by said circuit court that said will was not revoked by said subsequent marriage to said Charles Ward, (as ordered and adjudged by the county court,) and that said Ann Ward died testate, and that Hiram Lee, executor of said last will and testament, is entitled to judgment; that said order and judgment of the county court be reversed, with costs. From the judgment entered upon, and in accordance with, such findings and conclusions, this appeal is brought.John Barker, for appellants.

Hand & Flett, for respondent.

CASSODAY, J., ( after stating the facts.)

The testatrix made her will while she was the wife of Spaulding. By it she gave her property to six of her children by a former marriage. After his death she married Ward. She never had any children by either of them. Did such marriage to Ward revoke her will thus made? This is the only question presented which it is necessary to consider. The county court held that it did. The circuit court held that it did not, and reversed the judgment. After prohibiting the revocation of any will otherwise than by burning, tearing, canceling, or obliterating the same, or by some other writing, executed as prescribed, substantially as required by section 6, c. 3, 29 Car. II., (3 Eng. St. at Large, 385,) our statute adds: “Excepting only that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator.” Section 2290, Rev. St. This section, with the above exception, first appeared in section 10, c. 66, Rev. St. 1849, which went into effect January 1, 1850. According to the revisors, this exception was “added to declare a right that would doubtless be inferred;” but that it was “safer to express it, especially as relates to minor married women.” Revisors' Notes, p. 165. “The revocation implied by law,” thus excepted out from the operation of the prohibitory clause of the section by reason of such precaution, manifestly means such as had previously been implied at common law. At common law the marriage of a woman was a revocation of her will previously made. Forse's Case, 2 Coke, 439: Hodsden v. Lloyd, 2 Brown, Ch. 534; Doe v. Staple, 2 Term R. 695. This was put upon the grounds of the husband's marital rights, the ambulatory character of a will, and the disability of the wife. Thus Lord Chancellor THURLOW, after considering the rights of the husband over the property of his wife, said: “It is extremely clear that no such will made by a feme covert can bind after the marriage, because it is contrary to the nature of the instrument, which must be ambulatory during the life of the testatrix; and as by marriage she disables herself from making any other will the instrument ceases to be of that sort, and must be void.” Hodsden v. Lloyd, supra.

But the common-law rule that marriage of a woman revoked her will previously made was not without exceptions. Thus, where her power of disposing of her separate property after marriage was preserved by an antenuptial agreement, her will previously made was not revoked by such marriage. 1 Sugd. Powers, 182-190; Wright v. Englefield, 2 Amb. 468; Rippon v. Dawding, 2 Amb. 565; Rich v. Beaumont, 6 Browne, C. P. 152; Churchill v. Dibben, 2 Keny. pt. 2, p. 82; Logan v. Bell, 50 E. C. L. (1 Man., G. & S.) 872; Doe v. Bird, 2 Nev. & M. 679; Downes v. Timperson, 4 Russ. 334; Dillon v. Grace, 2 Schoales & L. 456; Bradish v. Gibbs, 3 Johns. Ch. 523;Barnes v. Irwin, 2 Dall. 199, 1 Yeates, 221. The power which at common law might thus be preserved to a...