#### ELIZABETH WINSLOW et al. vs. JESSE COPELAND, ADM’R.

Where, by marriage articles, the power of appointing the estate by will is given to the feme, and no disposition of the same is made by the parties, in default of such appointment, Held that a will, made by her before the marriage, will be revoked thereby* under the provisions of the Act of 1844-5, ch. 33, sec. 10.

This was an issue of devisavit vel non. The plaintiffs filed their petition in the County Court, praying to have a paper writing, purporting to be the last will and testament of Elizabeth *18Copeland, the defendant’s intestate, admitted to probate. The petition set forth a marriage contract between the defendant and his intestate, then Elizabeth Newby, dated March 27th, 1848, in which, among other things, it was covenanted between the parties, that “ she shall from time to time, and at all times, whether “ she be sole or covert, have the right of making any last will u and testament, or an appointment in writing, disposing of the “property conveyed,” &c. On the 4th of April following, she executed the paper writing in question, and the marriage took place two days afterwards; and she died in 1851, her husband surviving, who administered on her estate. The defendants, in their answer, admit the facts as stated in the petition, but insist that the paper writing cannot be admitted to probate, inasmuch as it was made before the marriage, and was thereby revoked. Upon this state of the pleadings, the case was argued by counsel before his Honor Judge Dick, at Northampton, at Fall Term, 1852, who, being of opinion that the marriage revoked the will, refused to admit it to probate; and from this decision the plaintiffs appealed.

Barnes, with whom was Moore, for the plaintiffs,

argued: 1. The Act of 1844 was intended to prevent fraud upon marital rights. This was not a case of - that character. 2. The stipulation is express, and the husband cannot be heard to deny the will, and violate the agreement; for, if he succeed, he will be but a trustee for the appointees. The will is protected by the power contained in the agreement. (Sugden on Powers 1*94 — 15 Law Li. 104.) The articles were, that “ she might at any and all times make a will, whether sole or covert.” One may waive a right conferred by the law, but when once waived, it cannot be recalled to another’s injury. In Hodsden v. Lloyd, 2 Rr. Oh. R. 535, the will ivas revoked, because not protected by the power. He referred also to Duke Marlboro’ v. La'd Godolphin, 2 Yes. Sen. 60, and Hooks v. Lee, 7 Ire. E. 83.

Bragg, contra.

The will was revoked by the marriage. (Act of Ass. 1844.) See Stat. Yic. ch. 26, (of which ours is a copy)) to be found in Jarman on Wills, 753. Construction of Eng. Statutes as to revocations 1 Jarman 114. 1 Will, on Exr. 112. *19No agreement that a will shall not be revoked will prevent a revocation. Such provision is void, being against an express provision of law. (Doe v. Staple> 2 T. R. 684.)

Battle, J.

The pleadings, which seem to have been carefully and well prepared, according to the mode pointed out in the case of Whitfield v. Hurst, 9 Ire. Rep. 170, present for decision two questions: First, whether the articles executed by and between Jesse Copeland and Elizabeth Newby and their trustee, prior to their intermarriage, conferred upon the feme a power to make an appointment of the property therein mentioned, by a will made and published before the marriage? Secondly, if such power were given, did the marriage revoke the will made previously thereto ?

We deem it unnecessary to express any opinion upon the first question, because we are entirely satisfied that if the will was properly made, by virtue of a power of appointment conferred by the marriage articles, it was revoked by the subsequent marriage, by force of the 10th section of our Act of 1844, ch. 33. That section declaresthat every will, made by a man or woman, shall be revoked by his or her marriage, except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed, would not, in default of such appointment, pass to his or her heir, executor or administrator, or the person entitled as his or her next of kin, under the Statute of distributions.” By referring to the marriage settlement, which confers the power of appointment in this case, it will be seen that the will in question is not saved from the operation of the act; for, in default of appointment, there is no disposition of the property, either real or personal, and it would of course devolve the real upon her heir, and the personal upon her husband as her administrator* if he survived her, or upon her next of kin, if she survived him.

But the counsel for the plaintiff contends, that this case is not affected by the Statute, which, he says, was passed for the purpose of protecting the marital rights of the husband; and was not intended to apply where the husband had knowledge of, and consented to, the making of the will under the power. Such does not seem to be the construction placed upon the English *20Statute, 7 Will. IY, & 1 Tie. eli. 26, sec. 18, of which ours is a verbatim cop}*-. See 1 Jarman on Wills 114. The English Statute was doubtless passed for the purpose of putting an end to the many nice and perplexing questions, which had grown out of a constructive revocation of tire will of a feme sole by her subsequent marriage, and of a man by his subsequent marriage and the birth of a child. Mr. Jarman, after stating and discussing these various questions, says that no such can arise since the Statute has gone into effect, and he concludes by remarking, that “ the new rule, though it may sometimes produce inconvenience, has at least the merit of simplicity, and will relieve this branch of the testamentary law from the many perplexing distinctions which grew out of the pre-existing doctrine.”

We, after mature deliberation, cannot doubt that our Act, copied as it is literally from the English Statute, having the same difficult and perplexing distinctions arising from the implied revocation of wills to deal rvith, intended to accomplish the same purpose by the same means. And we cannot hesitate to believe, that whatever slight inconvenience may be occasioned by the new rule, it will be amply compensated by its greater simplicity and certainty. Now, all wills, with a single exception, whether made by a man or woman, shall be revoked ipso facto, by his or her subsequent marriage; in consequence of which, the property will devolve up>on those to whom the law shall assign it, in case he or she shall die without making a subsequent disposition of it. The exception made by the Act, is Avhere the will is made in exercise of a power of appointment, when the property thereby appointed would not devolve, in default of appointment, upon those to whom the law would give it; and, therefore, the Statute will not interfere between the objects of the bounty of the grantor of the power, in default of appointment, and those upon whom the will, made under the power, may confer it. The judgment of the Court below was correct, and must be affirmed.

Per Curiam. Judgment affirmed.