Swan v. Sayles

• Decision Date: 04 January 1896
• Citation: 42 N.E. 570,165 Mass. 177
• Parties: SWAN v. SAYLES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 177

42 N.E. 570

SWAN v. SAYLES et al.

Supreme Judicial Court of Massachusetts, Middlesex.

January 4, 1896

COUNSEL

Francis

W. Qua, for appellant.

Charles H. McIntire, for executor.

Larkin T. Trull and Fred N. Wier, for St. John's Hospital and Lowell General Hospital.

OPINION

FIELD C.J.

Albert W. Sayles died October 9, 1894, leaving a will duly executed on April 29, 1891, and a codicil duly executed on February 27, 1892. He was married to Lillian H. Sayles on March 10 1892, and she survives him, as his widow. No issue was born of this marriage. It does not appear from the will or codicil that either was made in contemplation of this marriage. The question is whether these instruments were revoked by this marriage, in consequence of St.1892, c. 118. The rule of law on this subject before this statute took effect is stated in Swan v. Hammond, 138 Mass. 45. The statute took effect on July 1, 1892. It is apparent that the will and codicil were not immediately revoked by the marriage because, by the law as it was at that time, marriage did not revoke the will of a man, and the statute was not then in existence. Did the statute of its own force, when it took effect, revoke the will and codicil? It is said that wills are ambulatory, and are revocable at any time before the death of the testator, and it is true that a person may revoke his will at any time before his death, and that a statute revoking wills at any time before the death of the testator, for any cause, probably, would be within the constitutional power of the general court. The sole inquiry is, what is the intention of the statute? The general rule is that statutes are to be construed as prospective in their operation. Shallow v. Salem, 136 Mass. 136; Com. v. Hayes, 149 Mass. 32, 20 N.E 456; Pierce v. Cabot, 159 Mass. 202, 34 N.E. 362; French v. Hussey, 159 Mass. 206, 34 N.E. 362. In Illinois and Connecticut the courts have construed statutes similar to this of ours as operative only when the marriage took place after the statutes took effect. In re Tuller, 79 Ill. 99; Goodsell's Appeal from Probate 55 Conn. 171, 10 A. 557. Such, we think, should be the construction given to St.1892, c. 118. The fact that the statute was approved March 31, 1892, but was not to take effect until July 1, 1892, does not, in our opinion, affect the construction to be given to it. If the intention had been to make the statute operative in cases...