Noyes v. Southworth

• Decision Date: 22 October 1884
• Citation: 20 N.W. 891,55 Mich. 173
• Court: Michigan Supreme Court
• Parties: NOYES v. SOUTHWORTH.

20 N.W. 891

55 Mich. 173

NOYES v. SOUTHWORTH.

Supreme Court of Michigan

October 22, 1884

Error to Branch.

CAMPBELL J.

This is a contest over the will of Cynthia Southworth, made while she was a widow, before her marriage with appellant, and never revoked. Appellant contests it on the sole ground that her subsequent marriage to him was a revocation in law. The will was made July 27, 1881, she being childless, and all the estate of which she was possessed at her death was owned before she married contestant. They were married February 21 1882, and she died without children September 28, 1882. Both the probate and circuit courts of Branch county, where she had resided, sustained the will. Laying aside such decisions as are made under statutes, the only foundation which has been suggested for holding a woman's marriage to operate as an implied revocation is the common-law rule to that effect, which was based on the effect of marriage on a woman's property and testamentary capacity. By marriage her personalty devolved on her husband and left nothing for a will to operate on, unless, possibly such rights in action as should not be reduced to possession during coverture. So it was further held that she could make no testamentary provision during coverture relating to her own property without her husband's concurrence, and this would prevent a revocation, as well as any other testamentary act, and a will cannot be recognized which is not subject to revocation by the testator. These were reasons enough to maintain the common-law doctrine. And the exceptions show that these were the only reasons, for they only extended to wills under powers of appointment, and devises which were suspended during coverture and revived by the husband's death. These doctrines are elementary, and a general reference to the authorities cited on the argument will suffice. See especially for the old doctrine, Forse &amp Hembling's Case, 4 Coke, 61, and notes to modern editions, and the reference to Plow. 343; also to Kent. Comm. 523-527.

Our constitution has done away with all the disabilities of coverture on this head, and expressly authorized every married woman to make wills of her estate as if she were sole. This leaves her case to be governed by the same rule which would apply to any one else on change of condition. Apart from some decisions based on statutory or peculiar local usages, the doctrine is quite uniform that...