Phaup v. Wooldridge

• Decision Date: 11 May 1858
• Citation: 55 Va. 332
• Court: Virginia Supreme Court
• Parties: PHAUP & als. v. WOOLDRIDGE & als.

55 Va. 332

PHAUP & als. v. WOOLDRIDGE & als.

Supreme Court of Appeals of Virginia.

May 11, 1858

Under the statute, Code, ch. 122, § 7, p. 517, marriage is a revocation of a will, " except a will made in pursuance of a power of appointment, when the estate thereby appointed would not, in default of such appointment, pass to his or her (the testator's) heir, personal representative or next of kin." ^[a1]

This was an appeal from the sentence of the Circuit court of Chesterfield county, reversing the sentence of the County court, by which a paper was admitted to probate as the will of Benjamin Phaup deceased. The paper was propounded for probate by Ellis, Joseph and William Phaup, the nominated executors therein, and its probate was opposed by Edward Wooldridge and Mary his wife, and Martha Goode, the two females daughters of Benjamin Phaup deceased. It was duly executed and attested in July 1852. And afterwards, in July 1854, Phaup, then seventy-four years old, married Mrs. Judith Bass, who was forty-nine.

Prior to the marriage the parties entered into a marriage settlement, whereby it was agreed that all of her property should be settled upon her, with a general power of disposition on her part; and that she should have no claim upon his estate, if she survived him. And this agreement was executed prior to the marriage, by their uniting in a deed by which she conveyed her property to a trustee in trust for herself, and relinquished all interest in his estate; and he covenanted that she should have the power of disposition by deed or will; and that if she survived him she should have an annuity of one hundred and fifty dollars out of his estate but not so as to hinder a division thereof.

The parol proofs were, that Phaup died in 1856, leaving his wife surviving him; there having been no issue of the marriage. That he expressed himself from the time of his marriage up to the time of his death, as much gratified that the marriage settlement would render it unnecessary to make his will again; and recognized the one offered for probate as his will and in full force. In his last illness he called for the paper and consulted one of the witnesses as to whether the property left to one of his daughters was effectually secured to her and her children, free from the control of her husband, telling the witness if that was not the case, he wished the witness to fix it.

The Circuit court held that though the paper had been duly executed and attested, and Phaup was competent to make a will, yet under the statute, it was revoked by the marriage and therefore pronounced a sentence against the will; and reversed the sentence of the County court, by which the paper had been admitted to probate. From this sentence, the nominated executors and the devisees of Phaup applied to this court for a supersedeas, which was allowed.

Green, Patton and Foster, for the appellants.

C Robinson, for the appellees.

ALLEN P.

It was settled at an early period in England, that as to wills of personalty, marriage and the birth of a child for whom no provision was thereby made, operated as an implied revocation. Lugg v. Lugg, 2 Salk. R. 592. As to realty, it was determined in Spraage v. Stone, Amb R. 721, and Christopher v. Christopher, Dickens' R. 445, " that revocations by operation of law did not fall within the statute of frauds. The rule established by these decisions was adopted in this court in Wilcox v. Rootes, 1 Wash. 140. The principle on which these implied revocations rested has been controverted. On the one hand the revocation was grounded on the implied intention to revoke under the new circumstances occurring after the will was made. On the other hand, in the case of Doe v. Lancashire, 5 T. R. 49, Lord Kenyon held that such implied revocations were dependent on a condition annexed to the will by law, under which it would fail of effect in case of a subsequent marriage and birth of issue who would be left without provision were the will allowed to be effectual: and such was held to be the true view of such revocations in Marston v. Roe, 35 Eng. C. L. R. 303, where it was held that the revocation under such circumstances is in consequence of a rule of law, independent of any intention. The Court of appeals, in Wilcox v. Rootes, 1 Wash. 140, seemed to rest the principle of such implied revocation upon the implied intention to revoke under the new state of circumstances, and as a consequence that parol evidence was admissible to rebut such intention. It is remarked by the author, in 3 Lomax Dig. 131, that when we consider the provision made by our law for children pretermitted, or born after the will, or posthumous, and besides the provision of dower for the wife, in the real estate, legal or equitable, her rights as...