Kelly v. Stevenson

• Citation: 85 Minn. 247,88 N.W. 739
• Parties: KELLY v. STEVENSON et al.
• Decision Date: 17 January 1902
• Court: Supreme Court of Minnesota (US)

85 Minn. 247

88 N.W. 739

KELLY

v.STEVENSON et al.

Supreme Court of Minnesota.

Jan. 17, 1902.

Appeal from district court, Hennepin county; David F. Simpson, Judge.

Action by John Kelly against Clara Stevenson and others. From a judgment of the district court affirming decree of the probate court, Kelly appeals. Affirmed.

Syllabus by the Court

The will of a woman is not revoked by her subsequent marriage. The rule of the common law to the contrary has been abrogated by the statute conferring upon married women testamentary capacity. B. W. Smith, for appellant.

Harold Smith and Smith & Smith, for respondents.

START, C. J.

On August 16, 1890, Christine Erickson, an unmarried woman, and a resident of the city of Minneapolis, this state, duly executed her last will. Thereafter, and on January 7, 1899, she intermarried with the appellant herein, and continued to reside in Minneapolis until July 29, 1900, when she died. There was no issue of the marriage. Her will was admitted to probate by the decree of the probate court of the county of Hennepin, and the appellant appealed from the decree to the district court, which affirmed it. The appellant then made a motion for a new trial, and appealed to this court from an order denying his motion. Such, briefly stated, is the record in this case, and the sole question for our consideration is whether the will of a single woman is revoked by her subsequent marriage by virtue of Gen. St. 1894, § 4430, which reads thus: ‘No will nor any part thereof shall be revoked, unless by burning, tearing, cancelling or obliterating the same, with the intention of revoking it, by the testatory, or by some person in his presence, and by his direction; or by some will, codicil or other writing, signed, attested and subscribed in the manner provided for the execution of a will. Provided that nothing contained in this section shall prevent the revocation implied by law from subsequent change in the condition or circumstances of the testator.’ At common law the marriage of a woman revoked, unless the right to dispose of her property during coverture was reserved by her by an antenuptial marriage settlement, her will, previously made, for the reason that a married woman had no testamentary capacity, and her incapacity to make a valid will prevented her from altering by a codicil, or a new will, or in any manner, a will made before marriage. Her marriage destroyed her testamentary capacity and the ambulatory character of her antenuptial will; hence the common law necessarily implied a revocation of her will from her subsequent marriage, otherwise her pre-existing will would be an unalterable disposition of her property. This rule of the common law was in force in this state by virtue of the statute as to the revocation of wills by implication until March 6, 1869, for the reason that prior to that date married women had no absolute testamentary capacity, but only a qualified capacity, depending on the will of the husband, as provided by Rev. St. 1851, c. 53, § 1, and Gen. St. 1866, c. 47, § 1, which, so far as here material, read as follows: ‘Any married woman may devise and dispose of any real or personal property held by her, or to which she is entitled in her own right, by her last will and testament in writing, and may alter and revoke the same in like manner as if she was unmarried: provided that no such will, alteration or revocation shall be of any validity without the consent of the husband of such married woman, in writing, annexed to such will, alteration or revocation, and attested and subscribed and to be proven and recorded in like manner as a last will and testament is required to be witnessed, proven and recorded.’ The legislature, however, by an act approved March 6, 1869, expressly repealed this proviso (see Laws 1869, c. 61, § 1), and thereby placed married women and married men upon a basis of equality as to testamentary capacity by giving to the former the same absolute testamentary capacity as if she were unmarried. The mere fact of the marriage of a man does not now, nor never did at common law, revoke his will previously made. Hulett v. Carey, 66 Minn. 327, 69 N. W. 31,31 L. R. A. 384, 61 Am. St. Rep. 419. Why, then, should marriage revoke the antenuptial will of a woman, and not that of a man, now that she retains unimpaired by her marriage her testamentary capacity precisely as a man does? Why, in view of this equality of testamentary capacity and of legal personality of married men and women, should it be held that if a married man dies without issue, leaving a will made before his marriage, his widow shall have only so much of his estate as the law secures to her in cases where the husband dies testate, but, if the wife dies under similar circumstances, her husband shall take the whole of her estate, notwithstanding her pre-existing will?

The only answer which is or can be made to these questions is that the common-law rule that marriage revoked a woman's will previously made is still a part of the law of this state. But the reason upon which this rule was based no longer exists in this state, hence the rule itself ought to cease, in accordance with the maxim of the common law that, when the reason of any particular rule or law ceases, so does the law itself. Accordingly, it has been held in other states having statutes similar...