Osgood v. Bliss

• Decision Date: 01 April 1886
• Parties: OSGOOD v. BLISS and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

141 Mass. 474

6 N.E. 527

OSGOOD v. BLISS and others.

Supreme Judicial Court of Massachusetts, Worcester.

April 1, 1886

Hearing in the supreme court upon the following facts:

Elizabeth A. Heywood, being unmarried and a resident of Indianapolis Indiana, on the twenty-fifth of January, 1882, at Indianapolis, duly executed the will offered for probate. For the purposes of this hearing no question of fraud, undue influence, unsoundness of mind, or as to the formal execution of the will was raised. On the same day the said Elizabeth A Heywood and Edward M. Bliss, a resident of Worcester Massachusetts, at said Indianapolis, entered into an agreement, which was as follows:

"This agreement, made and entered into this twenty-fifth day of January, 1882, between Elizabeth A. Heywood, of the city of Indianapolis and state of Indiana, and Edward M. Bliss, of Worcester, in the state of Massachusetts, witnesseth, that in consideration of the promise and agreement of said Elizabeth A. Heywood to marry the said Edward M. Bliss, and of the said Edward M. Bliss to marry the said Elizabeth A. Heywood, it is hereby mutually agreed and stipulated that the said Elizabeth A. Heywood shall own, possess, hold, and control absolutely all property which may belong to her at the time of such contemplated marriage, or which she may afterwards acquire in any manner, the same as if she were an unmarried person free from all authority, right, or control of the said Edward M. Bliss; and shall have full and unrestrained right to dispose of the same; and, at her death, such property shall descend according to the terms and provisions of the will and testament of Elizabeth A. Heywood, free from all legal right of Edward M. Bliss as her husband. And it is further agreed that such marriage shall not work a revocation of the will and testament of Elizabeth A. Heywood, executed prior to said marriage, nor affect her right to alter or change the same during such marriage."

The agreement was signed by the said Elizabeth A. Heywood and Edward M. Bliss.

The parties to said agreement were married on the day succeeding the one above named, at Indianapolis, and immediately removed to Worcester, where they resided until the decease of said Elizabeth, on March 15, 1884, no issue having been born of said marriage. Said Elizabeth had in the mean time made no will, and no codicil to the one offered in this case. Said Edward M. Bliss had no knowledge of the execution of said will, nor of its contents or existence, until after the decease of said Elizabeth, beyond the reference to a will contained in said agreement. Said will and agreement were left by the deceased, without the knowledge of said Edward M. Bliss, in the hands of said Mason J. Osgood at said Indianapolis, at the time of their execution, and were never thereafter in her possession. The appellant Edward M. Bliss is interested in the estate of said Elizabeth as her husband, and the appellant Carrie F. Ormsby as one of the next of kin. Said Elizabeth died possessed of about $12,000 in personal, and $500 in real estate, all of which belonged to her at the time of executing said will and agreement, excepting what was added by accumulations of income not expended, and by increase in value. The said will of the said Elizabeth A. Heywood contained bequests to relatives, and to one or two public institutions, but nothing was bequeathed to the husband of the testator. The will was dated January 25, 1882, and the testator's brother-in-law, Mason J. Osgood, and her sister, Mary A. Osgood, were appointed executors.

It was agreed that, at the time of the marriage of said Elizabeth, the statute of Indiana was as follows: "After the making of a will by an unmarried woman, if she shall marry, such will shall be deemed revoked by such marriage."

The presiding judge, upon these facts, reserved the case for the consideration of the full court.

COUNSEL

H.F. Harris and F.P. Goulding, for Osgood.

F.H. Dewey, Jr., for Edward M. Bliss.

Norcross & Hartwell, for Carrie F. Ormsby.

OPINION

W. ALLEN, J.

No question is made that the agreement contained a power to Mrs. Bliss to appoint by will, and that her will, executed after the marriage, could have been a good execution of the power, and could have operated as such, and not as a will; and that, to make it effective, it would be necessary that it should be allowed in the probate court. See Osgood v. Breed, 12 Mass. 525; Ela v. Edwards, 16 Gray, 91; Heath v. Withington, 6 Cush. 497; Holman v. Perry, 4 Metc. 492; Parker v. Parker, 11 Cush. 519. Whether a power of appointment in an antenuptial contract can be executed before, as well as after, the marriage, depends upon the terms and construction of the agreement. In this case the power to appoint by will before the marriage is clearly given. The provision that the marriage shall not work the revocation of the will executed prior to it shows that it was intended that the power might be executed before the marriage. The agreement and the will bear the same date, and were both executed on the day before the marriage, and the agreement provided, in effect, that the will should be a good execution of the power. Even if the will had been made before the agreement, and had not referred to it, and the power had been general to appoint by will, the pre-existing will might have been a good execution of the power. Boyes v. Cook, 14 Ch.Div. 53; Logan v. Bell, 1 C.B. 872.

The question is...