Swan v. Hammond

• Decision Date: 23 October 1884
• Citation: 138 Mass. 45
• Parties: Ellen M. Swan, executrix, v. Thomas M. Hammond
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

138 Mass. 45

Ellen M. Swan, executrix, v. Thomas M. Hammond

Supreme Judicial Court of Massachusetts

October 23, 1884

Argued March 20, 1884.

Middlesex.

Decree of Probate Court reversed.

E. F Dewing & G. L. Sleeper, for the appellant.

W. B Gale & W. N. Mason, for the executrix.

OPINION

Colburn J.

It appears by the record and agreed facts in this case, that Susan E. Haven, an unmarried woman, made her will, May 20 1853; that she was then possessed of real and personal estate, all of which by her will she devised and bequeathed to her sister, who was named as executrix; that on October 3, 1861, she married Thomas F. Hammond, and lived with him until her death on January 18, 1883. Her husband had no knowledge of the existence of the will until after her decease. No child was born of the marriage. The will was presented for probate in Middlesex, by the executrix therein named, and was approved and allowed on April 3, 1883, and the husband appealed. The only question presented is whether the will was revoked by the marriage.

It has been well settled at common law, at least since Forse & Hembling's case, decided in 1589, 4 Rep. 60 b, that the marriage of a feme sole revokes her will. In case of a man it is equally well settled that marriage alone does not revoke his will, but that marriage and the birth of a child do. 1 Jarm. Wills 122. Warner v. Beach, 4 Gray 162.

The reason why the will of a feme sole is revoked by her marriage is commonly stated to be, that marriage takes away her testamentary capacity, and destroys the ambulatory nature of her will; and it is urged in argument, that, since the statutes allowing a married woman to make a will, with certain limitations as to the rights of the husband, were passed, the reason upon which the rule was founded, that the will of a feme sole is revoked by marriage no longer exists, and that her will, like that of a man, should be held to be revoked, not by marriage alone, but by marriage and the birth of a child. This argument is not without force, but its force would be much greater if we could see any good reason why in the case of a man both marriage and the birth of a child should be held necessary for the revocation of his will. The rule was adopted from the civil law, and is now firmly established as part of the common law; but the reason upon which it is founded is not obvious.

Marriage alone in the case of a man or woman would seem to be a sufficient change in condition and circumstances to cause an implied revocation of a will previously made. A will made before marriage, and taking effect after marriage, must take effect in a very different manner from that in the mind of the testator when the will was made. The rights of the husband or wife must greatly modify its provisions; and it can hardly be supposed that an unmarried person would make the same will he or she would make after marriage. If we were under no restraint, we might well...