#### Wood v. Bullock and others.

~\ I From Tyrrd. J

A feme sole makes a will, marries, and survives her husband; the will is good.

This was an issue, will or no will, and on the appeal of the defendants stood before the Court on a rule to show cause wherefore, a new trial should not he granted. The facts are, that Mary Wood, then Mary Spruill, on the 26th November, 1818, duly executed the paper writing offered as a will, in the presence of two witnesses, and placed it in the hands of Popdston for safe keeping: that afterwards Mary Spruill intermarried with Wood, and previous to her marriage executed a settlement, conveying all her estate real and personal to trustees; Wood died, leaving his wife surviving him, and the trustees after his death reconveyed the estate to the wife. The will continued in the hands of Popdston uncancclled until the death of Mary Wood, and the said Mary, after the death of her husband and after the reconveyance of the estate to her by the trustees, told Popdston to take care of the paper, for she wished it to stand as her will.

The Court below, held that the marriage settlement w-as a revocation of the will, and that it could not be republished by parol so as to pass the real estate, but that her declaration to Popelston amounted to a republication as to the personalty, if it were so intended.

Hall, Judge

If a will he made before marriage, and the wife survive the husband, is it a republication? It is not to be controverted at the present day, that the marriage of a feme sole is in law a revocation of a will made by her, Loe v. Staple, (2 Term R. 684.) though it is tobe remembered that the reason of this rule is not, as has been sometimes supposed, an incapacity of the feme to *299 make a will, arising from tbe state of coverture. The rule proceeds on a well known maxim of the common law, .which deriving no support from the artificial refinements of technical reasoning, carries at once conviction to the understanding by the simple force of reason and truth. The truth is, that as a will is ambulatory, in other words, as it .may be altered or revoked to the very last moment of the testator’s existence, there must not only, be a capacity to devise at the time of making, but also at the time of consummating the will, viz. at the death of the testator. Now as tbe wife could not control her property after marriage, no matter what events might render it necessary, there is a propriety in annulling entirely any. distribution made of her property; lest if supported, or not annulled, it might contravene her wishes in its subsequent disposition, founded on events arising during coverture: for if there be reason in permitting a feme sole to exercise her understanding in making or altering a will, equal reason is there that when the law declares that by marriage she has technically lost understanding, if I may so speak, to make or alter a will, she shall not be prejudiced by an adherence to that already made; she shall be intestate. • •

But the question now presented, is not as to the effect of marriage on the will of a feme sole,1 but as to the effect produced by her surviving her husband, having made a will dam sola: and it must be confessed that contradictory opinions have been given on the point. In its investigation, while I readily admit the propriety of the rule stare decisis, I wmuld yet respectfully examine and weigh the reasoning advanced in support of the different opinions.

In support of the idea that the will is effectually and completely revoked by marriage, so that survivorship of the wife does not republish it, the reasoning, when condensed, appears to be as follows.

It is essential to the nature of a will that it should be ambulatory and liable to be altered or revoked at any *300period during the life of testator. A woman by marriage disables herself from making, altering, or revoking a will, and therefore upon marriage the instrument needs one essential characteristic of a will, viz. liability to alteration, or revocation, and of course must cease to be a will, and having once ceased, continues to be no will whether the wife survive or not.

This argument, in fact, begs the question; it is founded on a fallacy; it assumes that, because at one period, viz. during coverture, it loses the character of a will, it loses it at another period, viz. after coverture has ceased. Now the very question in controversy is, whether the paper is to be considered in the same light during cover-ture, and after coverture. It is an admitted point, that during coverture the will is revoked, and the reason has already been assigned;, but that reason can apply with no propriety to the paper after the coverture has ceased. The truth is, that the argument above can never prove more than that during coverture the will is revoked, and if the wife dies during coverture she dies intestate. But the ground taken in it really supports the idea, that the will is established again by the survivorship of the wife; for it is said that the will is ambulatory; this is true, and this character belongs to it until testator’s death. If then, during testator’s life, its ambulatory character should be suspended, not destroyed, by a technical reason, viz. that the wife has no wall because of coverture, it would seem that when this technical reason was removed by husband’s death, it should again be ambulatory on the obvious principle that cessante ratione cessat et ipsa lex.

Again, the case now before the Court serves to illustrate the ground on which, in one class of cases, the survivorship of the wife gives validity to her will made dum sola; I mean that class in which no change in testator’s situation has been produced by marriage. Thus we see Mary Spruill while sole selecting the objects ef her benevolence, and distributing her bounty *301.among them; in this act she has furnished conclusive evidence, that in the situation in which she stood when unmarried, she desired to make such and such a disposition of her estate; we find her years afterwards in cisely the same situation. The law will scrupulously respect her desires in disposing of her property, as it will those of every person, provided the ceremonies required in declaring those desires he complied with, and it is unwilling that she should die intestate. Is it not a very fair, nay the only rational presumption, that as under certain circumstances she devised or bequeathed in one way, that under precisely the same circumstances she would wish to make precisely the same disposition of her effects, more especially as a contrary desire might so easily have 'been expressed by a new will, and as the intention not to die intestate under these circumstances has so plainly been expressed by the will already made?

An attempt has been made thus far, to consider the question without reference to authority; but this is not wanting in support of the position, that upon the death of the husband the will is republished. A leading and very early case, in which the subject is referred to, is Brett v. Regden, (Plowd. 343 a.) in which it is thus put: a feme sole makes her will the 1st May, and gives land thereby, and afterwards on the 10th of May she takes husband, who dies on the 20th of May, and afterwards the woman dies on the 30th of May; the devise is good, and yet if it should be considered according to the time of the date, the will would be countermanded by the es-pousals; but it is not so, for it does not take effect until her death, at which time she was discovert, as she was at the time of making the will, and the intermarriage shall not countermand that which was of no effect in her life time. The last reason, viz. that a paper, which must owe its validity to the death of its maker, and dui’ing his life time is of no effect, cannot be affected by any circumstance arising before it is of effect, is to my mind *302unanswerable. This respectable authority is sustained by Godolphin, (Orph. Leg. fo. 29. § 1.) and the case of Forse v. Membling, (4 Co. R. 61.) To which I would add, ^rfthout intending to quote the book as an authority, for it is but a compilation though a most respectable one, the same doctrine is laid down by Cruise, title Devise, ch. 6. § 47. I am therefore of opinion that the will of Mary Wood, made when she was Mary Spruill, is good and eifectual to pass both realty and personalty, and that a new trial should be granted.

Henderson, Judge

This is a question on which the elementary writers differ, and I cannot find a single, common law adjudication on the point. We must therefore resort to first principles to decide the case. A last will being in its nature revocable and ambulatory, and being supposed to contain the last wishes of the maker as to the disposition of his property after his death, requires that the maker should be a free agent, not only at the time of making the will, but also at the time of death; otherwise the power of revocation, which is incident to the very nature of a will, could not bo exercised. But I can sec no reason why this free agency should continue uninterrupted from the making to the time of death. I think tlie reason of the thing is answered, if it existed at the time of death, and that a temporary want of free agency, such as is effected by the marriage of the maker, being a feme, operates only as a suspension, and not as a revocation. If she dies during the marriage, the will is considered as revoked, for if she had desired to revoke it, she had not a tree will to do it, the law, therefore, docs it for her. But if she survives her converture, and does not revoke it, there is no necessity lor the law doing it, for had she desired it, she could have done it herself; marriage in this respect operating like captivity. And it seems agreed by all, that if a person makes a will and is after taken captive, it operates only as a suspension of *303the will, and if the maker dies in captivity, the will is revoked, but if he regains his liberty, it sets up his will ° A again without any republication. But it is said that marriage is different from captivity, because it is voluntary and captivity involuntary. It is true there is that dif.ference; hut I cannot see that different results, not connected with the question whether the situations were voluntarily or involuntarily assumed, should be drawn from it. If the want of the power of revocation was inflicted as a punishment for crime, then it would be all important to make this difference in the results; but we know that it is not. The want of that power, to wit, of revocation, arises from w ant of free agency in both cases; and it is, I think, restored by the restoration of free agency in both cases. This case has also been compared with revocations, or rather ademptions, by a feoffment or grant of the lands devised, although the devisor takes back the same estate in the lands. The cases, I think, are very unlike each other. A devise of lands is looked upon as a conveyance, not as a testament is in the civil law, an appointment of an heir; therefore a person must have that which he devises, as he must have that which he. grants, and there can be no estoppel in wills as in deeds, by which the devisee could take as in case of a deed, for estoppels operate only where there are parties, and there are no parties in a will. The will being ambulatory and revocable, it is necessary that the devisor should not only have the power to devise, that is to grant when he makes his will, but that he should have the uninterrupted power up to the time of his death; by power here I mean ownership in the land. If, therefore, he disposes of the land, the will is revoked, because he has not the thing which is attempted to be granted; and being revoked, a repurchase of the land does not set up the will again, for that can be done only by republication, and a repurchase bears no analogy to a republication. The will, such case, is revoked, not because the devisor intended *304tevoke, but because he had not the power to devise, to grant, for he could not grant that which he had not. The revocation, therefore, in such case, is not dependant on pree agency. for jf jn the same conveyance devisor takes back the same estate, yet it is a revocation, which shows that the revocation does not depend on intent. I have used the term revocation in deference to authority, but it is. rather an ademption, and therefore I have not noticed the marriage settlement; for no question growing out of it can arise upon the probate of a will, and can only arise in- contracts about the property devised between the heir and devisee. I therefore think that the testatrix, being unmarried at the time of making her will, and at the time of her death, the will is a good one, that is, not revoked. For these reasons I am of opinion that a new trial should be granted.

Taylor, Chief Justice,

dissentiente. — Whether the will of a woman is revoked by her subsequent marriage, is a question which does not seem to be considered as settled by any series of adjudications, and on which I must be guided by the best light I can obtain. The law is thus far certain, that a woman’s marriage alone will be a countermand of her will, if she dies in her husband’s life time. , Coke’s Rep. 41.) The reasons given in that case by the Court were, that the making a will is but the inception of.it, and it does not take effect till the death of the devisor; but it would be against the nature of the will to be so absolute, that he who makes it, being of good and perfect memory, cannot countermand it; and therefore the taking of a husband shall be a countermand at law. 2dly. That it would be mischievous to women, if their wills after their marriage were to stand irrevocable. And this they must be, unless the marriage was a revocation; for the law will neither allow a will to be made or revoked by a feme covert, because both might then be done by the constraint and coercion of the bus'*305band. In tbe argument of that case, a dictum of Mantvood was cited from Plowd. 343, that if a feme sole make her will on the 1st of May, and give land thereby., and af-terwards, on the 10th of May, she takes husband, who dies on the 20th of May, and the woman dies on the 30th; the devise is good, for it could not take effect till her death, at which time she was discovert, as she was at the time of making her will; and the intermarriage shall not countermand that which is of no effect in the life time of her husband. Which proposition was not denied. But is it not an answer to this, that the very nature of a will requires that it should be ambulatory, and within the power of the testator to revoke at any time during his life: It was said in Coke’s Rep. that it is against the nature of a will to be so absolute that he who makes it cannot revoke it. Now a woman by marrying disables herself from making any other will, or altering or revoking the old one, so that the marriage destroys the essential qualities of a will made before, and must therefore, in consistency of reason, render it void. In 2 P. Wms. 524, the chancellor says, that a woman’s marriage alone was a revocation of her will; and in 2 Blacks. 449, the same proposition is laid down in the same unqualified manner; but, as both these opinions are founded upon the case in Coke, they ought perhaps in fairness to be restricted to the case of the woman’s dying during cover-ture. There is no positive opinion pronounced on the question in Doe v. Staples, (2 Term Rep. 684.) but the language used by the chief justice strongly indicates, that in his opinion, a will revoked by the marriage of a woman, would not be restored by the wife’s surviving the husband. His words are, “the will of a woman made before coverture, ceases to be her will afterwards; because it is of the essence of a will that it should be valid during the remainder of the testator’s life. Therefore, generally speaking, the will of a woman ceases to have any operation after she becomes covert. He does not say, “ during *306the coverture,” nor does he add, “if she dies during co-vcrture.” The reason he gives for the revocation, ex-eludes the implication of revival by the death of.the hus-pan(j. for if jf j)0 essential to a will that it should be always valid, which it evidently is not during coverture, because not revocable, it follows that marriage works a total destruction of the instrument. The dictum of Man-wood is cited by Cruise, Vol. 4. 105, who also refers to 2. Brown’s Hep• 534; but what is said in the latter case extends the doctrine no farther than the case in Coke, viz. that a will is revoked by the subsequent marriage; and I incline to think that the case in Broxon was quoted not in support of Manwood’s didnin, but to open the subject more fully to the reader. In Gilbert’s law of devises and revocations, the case is cited from Coke as containing tlic law on the question; and no notice is taken of Plow den, Which, in a writer of so much judgment, would scarcely have happened, if he believed that a will was revived by the death of the husband before the wife. He reasons with his usual strength, that the will is countermanded by the marriage, lest she should be.influenced by her husband after the coverture to revoke or let it stand, as it best answered his interest; and if he found it his interest to keep it on foot, there it is presumptive evidence he would not suffer her to revoke it, which is contrary to the nature of wills, which are ambulatory till the testator’s death. Another writer on the subject lays down the rule to be, that the subsequent marriage of a single woman shall revoke it; nor shall it be revived by the death of the husband. (Toller 10.) Two other waiters of reputation, who have lately examined the subject,' conclude that the weight of authority, as well as principle, seems to be against considering a will revoked by marriage, as restored to its operation by the death of the husband before her. (1 Roberts on Wills 326. Roper on Rev. 18.) The dictum of Manwood is stated only by counsel in arguing, and though not denied,, is not of equal authority *307with a decision on the very point, and this was made in Mr. Lewis’s case, viz. that a will made by a woman before marriage, is so totally revoked by her marriage that it cannot revive on the subsequent death of her husband. (4 Burn’s Eccl. Law, eh. 47.) This decision is entitled to much respect, on account of its taking place in the Court of Delegates, which is a Supreme Court of Appeals in testamentary questions, and is composed of an equal number of. common law judges, and of persons skilled in the civil and canon laws. Upon the strength of this, case, and the other opinions of learned men which have been noticed, I feel bound to decide, that the will in this case was revoked by the marriage. The next question is as to the republication. By the act of 1784, no provision was made requiring the revocation of a devise to be in writing, and the decisions of the Court were, that a revocation by parol was valid. To avoid the mischief likely to be produced by setting up such revocations, the act of 1819 was passed, which is nearly a transcript of the 6th section of the statute of frauds and perjuries; adapting it (o the law previously in force here, for the execution of wills. Since this act, devises of land can only be revoked by some other will or codicil in writing, or by cancelling, Ac. IS or can a will of land once revoked, be republished by parol evidence; but with respect to personal estates, the common law does not seem to have undergone any alteration in England, and they may still be republished by parol. There is, however, a difference between our act of assembly relative to the revocation of wills of personal estates, and the statute of-frauds and perjuries. By the latter, a will of personalty in writing may be repealed by a nuncupative will, if it be committed to writing in the testator’s life, and afterwards read to Mm, and allowed, and proved so to be, by three witnesses at the least. (Sec. 99.) But by our act, no will in waiting, passing a greater estate than one hundred pounds, shall .be revocable otherwise than by some other will or codi*308cil, which is sufficient in law to pass a personal estate of greater value than one hundred pounds. A question would then arise, whether a will of personals, which cannot be( revoked but by one of equal solemnity, can, after a revocation, be republished by parol. This is worthy of consideration; but as this case does not state the fact, that the will did pass a personal property of greater value than one hundred pounds, the question is not directly presented. Therefore, upon the facts as stated, my opinion is, that the will is republished, as to the personal estate.