Kurtz v. Saylor
| Decision Date | 17 May 1852 |
| Citation | 20 Pa. 205 |
| Parties | Kurtz <I>versus</I> Saylor. |
| Court | Pennsylvania Supreme Court |
As to the second specification, it was alleged that, if a general permission by the husband to make a will was not sufficient, then, no matter what consideration he had received from his wife, he might, after her death, repudiate his contract, unless it could be shown that she had obtained his sanction to it. That thus it would be substantially his will, and not the will of his wife. That he could not so repudiate his agreement, the case of Gackenbach v. Brouse, 4 W. & Ser. 546, was referred to. Also 7 Barr 411, Wagner v. Ellis; 8 W. & Ser. 413; Id. 102; 5 Barr 154.
Hobart and Fornance, for defendant in error.—The will of the testatrix was executed four days before the Act of 8th April, 1833, was passed. It is however contended, on the part of the plaintiffs, that the codicil made in 1841 amounted to a republication of the will.
It was contended that the Act of April, 1848, was not retroactive, but altogether prospective; reference was made to the case of Greenough v. Greenough, 1 Jones 489, and to the opinion in Snyder v. Bull, 5 Harris 58. It was contended that, where an act or proceeding is commenced during the pendency of one law, but not consummated until after the law is changed, the first law is to control the proceedings; and the Court should refuse to give a retroactive operation to statutes, where not compelled by direct and positive words. That the rule is to permit retrospective operation to statutes which operate on the remedy, but not on the right: 10 Barr 505; 4 Ser. & R. 401; 3 Harris 479, Martindale v. Warner; 5 W. & Ser. 198.
It was further stated, that the plaintiffs offered evidence of an antenuptial contract, which had been in some way destroyed or lost; but that it appeared from the evidence that it gave no power to make a will, but the object of said agreement was that their separate property should be enjoyed together during life, and, after the death of either, then to be enjoyed by the survivor.
The plaintiffs' counsel then offered to prove that, subsequent to marriage, the defendant gave his consent to the testatrix's authority to make a will. But the witness called by plaintiff stated that he bought a property in 1846 or 1847 from her for $2000; that he told the defendant, and asked him if he was satisfied; defendant said he was, if he would get $1000 of the purchase-money, and his wife said she was willing, provided she should do with the rest of her money as she pleased; that certain bonds and mortgages were mentioned, and witness further said he thought the thing was fairly understood.
Upon this evidence the Court instructed the jury that, under the Act of 1833, "the assent or license of her husband must not be general, to make a will, but to make the will in question." It was contended that this was the law of Pennsylvania.
The will purported to dispose of her real as well as personal estate. The husband was not the heir to the testatrix as to her real estate; and he could not give his wife power to make a will in prejudice of the heir at law; but he could have given her power to dispose of her personal estate: 7 Barr 411, Wagner v. Ellis; 10 Ser. & R. 445. In the Act of 1833 the same distinction is made, as to the power of a married woman to dispose of her real estate, and to dispose of her personal estate alone. But the consent of the husband must be given to the particular will in question; the previous assent of her...
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