In the Matter of The Will of Esther R. Tuller

Decision Date30 September 1875
PartiesIn the matter of the Will of ESTHER R. TULLER, DECEASED.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county; the Hon. JOSEPH W. COCHRAN, Judge, presiding.

Messrs. COOPER & BASSETT, for the appellant.

Messrs. MCCULLOCH, STEVENS & WILSON, and Messrs. STARR & CONGER, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This is an appeal by Lydia A. Cole, residuary devisee and legatee under the will of Esther R. Tuller, deceased, from the order and judgment of the circuit court of Peoria county, refusing to admit said will to probate, such order and judgment having been made on appeal in reversal of an order of the county court admitting the will to probate.

The facts are, that Esther R. Tuller, on the 20th day of May, 1869, made and published her will, she being then a widow, and having at the time, living, three children by a former marriage, all of whom are still in full life.

Afterwards, on the 2d of September, 1869, the testatrix was married to one Marcus Hosmer, from whom she was, on the 16th day of December, 1873, divorced by decree of the circuit court of Peoria county, upon bill filed by her for that purpose. The testatrix died on the 6th of March, 1874, having made no other will, and having had no child by said Hosmer.

The question presented for consideration is, whether there was a revocation of the will by the marriage with Hosmer.

It is the old and well settled rule of the common law, that the will of a feme sole is revoked by her subsequent marriage; and it is contended that, under this rule, the will was revoked. The reason of the rule was, that a will is, in its nature, ambulatory during the testator's life, and can be revoked at his pleasure; that the marriage destroys the ambulatory nature of the will, and leaves it no longer subject to the wife's control; and that it is against the nature of a will to be absolute during the testator's life; it is therefore revoked, in judgment of law, by such marriage. 4 Kent's Comm. 527; 2 Greenlf. Ev. sec. 684.

That reason does not exist under our present statute of 1872, which gives to every female of the age of 18 years, the power to devise her property by will or testament.

Did it exist under the Statute of Wills of 1845, in force up to 1872?

The 1st section of the Statute of Wills of 1845 provides as follows: “Every person aged 21 years, if a male, or 18 years, if a female, or upwards, and not married, being of sound mind and memory, shall have power to devise all the estate * * * which he or she hath, or at the time of his or her death shall have, in and to any lands, etc. All persons of the age of 17 years, and of sound mind and memory, married women excepted, shall have power to dispose of their personal estate by will or testament; and married women shall have power to dispose of their separate estate, both real and personal, by will or testament, in the same manner as other persons.”

The statute draws a manifest distinction between the property generally of married women, and their separate property, giving power to dispose of the latter by will, but not of the former. The strict rules of the old common law, as is well known, would not permit the wife to take or enjoy any real or personal estate separate from or independent of her husband. But courts of equity have admitted the doctrine that a married woman is capable of taking real and personal estate to her own separate and exclusive use; and whenever real or personal property is given or devised or settled upon a married woman for her separate and exclusive use, her interest will be protected in equity against the marital rights and claims of her husband and of his creditors. The separate estate of a married woman was a creature of equity at the time of the passage of the statute of 1845.

By the statute of 1861, entitled “An act to protect married women in their separate property,” all the property of a married woman is made her sole and separate property, and is thereby made as fully her separate estate as any separate estate which she could in any way have had at the date of the passage of the act of 1845, and after, except that the statute of 1861 gives no power of disposing of her estate. Such being the case, then, that, under the statute of 1861, all of the property of a married woman is made her separate estate, we know no sufficient reason why, since the act of 1861, the statute of 1845, giving to married women the power to dispose of their separate estate by will, should not have operative effect in respect to all of a married woman's property, and be construed as enabling her to dispose of all her property by will in the same manner as other persons. The reason, then, for holding the will of a feme sole to be revoked by marriage, would no longer exist, as the marriage would not destroy the ambulatory nature of the will, but still leave it subject to the wife's control.

The further reason given, that the marriage of a feme sole is such an entire change in her condition and relations that it is generally held to work a revocation of her will, (1 Redfield on Wills, 292,) equally fails, as, since the act of 1861, her marriage works no essential change in her conditions and relations as respects her property. We are of opinion, then, that, since the act of 1861, the will of a feme sole is not revoked by marriage, the reason of the rule no longer existing. Her will, then, in this respect, must be regarded as standing upon the same footing with the will of a man. As respects his will, marriage is not a revocation of it, but marriage and the birth of a child are an implied revocation of a will previously made. Such was recognized by this court to be the rule in Tyler v. Tyler, 19 Ill. 151, and the authorities there referred to. But it was there held that, under our statute making the wife heir to the husband, and the husband heir to the wife, where there is no child or descendant of a child, marriage is, in the absence of facts showing an intention to die testate arising subsequent to the marriage, a revocation of a will of the husband, made prior to the marriage, disposing of his entire estate without making provision in contemplation of the relations arising out of the marriage.

It is insisted that the present case falls within that decision, and is controlled thereby.

The facts of that case were, that Stephen H. Tyler and the complainant in the suit intermarried in this State in 1842, and here lived as husband and wife until his death, in 1855; that he died, never having had a child, and leaving a considerable estate in this State; and that the defendants claimed his estate under a will executed in the State of Connecticut, where Tyler then lived, in 1834; which will devised his entire estate to his blood relatives. Under such circumstances, in view of our Statute of Descents, providing that, when there shall be a widow, and no child or descendant of a child of the intestate, then the one-half of the real...

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57 cases
  • In re Smith's Estate
    • United States
    • Wyoming Supreme Court
    • 9 Enero 1940
    ...is not, any more than a man's will, revoked by subsequent marriage alone. 68 C. J. 839; Chapman v. Dismer, 14 App. D.C. 446; In re Tuller's Will, 79 Ill. 99, 22 Am. R. Hastings v. Day, 130 N.W. 134, 151 Iowa 39; In re Hunt's Will, 81 Me. 275, 17 A. 68; Roane v. Hollingshead, 76 Md. 369, 25 ......
  • People ex rel. Eitel v. Lindheimer
    • United States
    • Illinois Supreme Court
    • 7 Junio 1939
    ...Co. v. Industrial Comm., 366 Ill. 480, 9 N.E.2d 212;Vulcan Detinning Co. v. Industrial Comm., 295 Ill. 141, 128 N.E. 917;In re Tuller, 79 Ill. 99, 22 Am.Rep. 164;People v. Nelson, 349 Ill. 193, 181 N.E. 635); and cases where the new statute was a revision or amendment changing or continuing......
  • Research Hosp. v. Cont'l Illinois Bank & Trust Co., 21720.
    • United States
    • Illinois Supreme Court
    • 9 Junio 1933
    ...the probate court properly considered and determined the validity of the will and whether it should be admitted to probate. In Re Tuller, 79 Ill. 99, 22 Am. Rep. 164,Ford v. Greenawalt, 292 Ill. 121, 126 N. E. 555,Wood v. Corbin, 296, Ill. 129, 129 N. E. 553,Gillmann v. Dressler, 300 Ill. 1......
  • Hoy v. Hoy
    • United States
    • Mississippi Supreme Court
    • 5 Abril 1909
    ...by reason and authority," contrary to what is said of this case in the Minnesota case relied upon by counsel for appellee. In In re Tuller Estate, 79 Ill. 99, the Illinois again reaffirmed the two previously referred to, but took the proper distinction that inasmuch as the widow had three c......
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