« ՆախորդըՇարունակել »
by a feme covert, because both might then be done by the constraint and coercion of the husband.
It was said by Manwood, in Plowden's Commen- Whether if she taries, that if a feme sole makes her will the 1st covert again and
dies a widow, the day of May, and gives land thereby, and afterwards will is revived ? on the 10th day of May she takes husband, who dies on the 20th day of May, and the woman dies on the 30th, the devise is good ; for it could not take effect until her death, at which time she was discovert, as she was at the time of making her will; and the intermarriage should not countermand that which was of no effect in the life-time of the husband. Which proposition was not denied. And it is observable that in the above mentioned case of Forse v. Hembling, where this position of Serjeant Manwood is cited, no disapprobation of it was intimated by the Court; and the judgment in that case is expressly grounded not only on the marriage of the testatrix, but also on the circumstance of her dying covert baron. . And though in Cotter v. Layer", it was said by Lord Chancellor King, that a woman's marriage alone, without any qualification, was a revocation of her will, yet that opinion being grounded entirely on Forse v. Hembling, does not carry the doctrine further.
It seems to have been held, however, in Mrs. Lewis's case, that a will made by a woman before
· Plowd. 343.
d 2 P. Wms. 524. see also 2 BI, Comm. 499. • 4 Burn. Eccl. Law, C. 47.
marriage is so totally revoked by her marriage that it cannot revive on the subsequent death of her husband. And it is to be observed, that though in Doe v. Staple', none of the Judges' pronounced a decided opinion on the point whether a will by a feme sole revoked by her subsequent marriage, would have its validity restored to it by the wife's surviving her husband, yet the language used by Lord Kenyon, is rather on the negative side ; for his Lordship's words are, that “ the will of a woman. made before coverture ceases to be her will asterwards ; 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." That learned Judge does not say “ during coverture," nor does he add, “ if she dies during her coverture;” but his words express the proposition in as unqualified a sense as those of Lord Chancellor King. And, indeed, in the reason he gives is comprehended something like a negation of any such revival of the will by the death of the husband, for if it be of the essence of the instrument that it should be always valid, (and it is not valid during the coverture, as has been before shewn, because not revocable) then it should seem to follow as a clear consequence, that what destroys the essence must be a total destruction of the thing itself, so as to leave it no potential existence.
f 2 T. R. 684.
The counsel in Mrs. Lewis's case, which was before the delegates, cited many authorities from the civil law to shew, that anong the Romans, if a man made his will, and was afterwards taken captive, such will revived and became again in force, by the testator's repossessing his liberty. But this was answered by adverting to the difference between a voluntary act, and an act of compulsion. And the will was adjudged not to be good. So that the weight of authority, and perhaps of principle, seems to be against holding the will of the feme sole, revoked by her subsequent marriage, to be restored to its operation by the wife's surviving her husband.
A married woman may be capacitated under a power created by way of legal use to make her will notwithstanding her coverture, and her will operates as an appointment of the use; but still in its own nature, it is a will, with the properties and incidents of a will, and is accordingly revocable as such, as has been more fully spoken to in a former part of this essay.
It has been sometimes considered doubtful whether A married
woman may cxco a power given to a feme sole was not suspend- cute a power
given to her ed by her marriage'; but the law seems now to while sole. be understood as settled, that a feme covert may execute a power given to her while sole. However, where an agreement before marriage was en
1 S Bro, P. C. 808, Rich v. Beaumont,
tered into, that a settlement should be made of the wife's estate, reserving to her a power of disposing of it by will; and before the marriage she devised it in favour of the intended husband, who survived her, the will was nevertheless held to be revoked. For the agreement was for an authority to be exercised during the marriage, and therefore could have no operation in preventing the consequence of law, with respect to what was done before the marriage ".
WITH respect to the revocation of a will of personal estate, the statute of frauds • is express, that no will in writing concerning any goods or chattels, or personal estate, shall be repealed, nor shall any clause, devise, or bequest therein, be altered or changed by any words, or will by word of mouth only, except the same be in the life of the testator committed to writing, and after the writing
See Doe v. Staple, 2 T. R. 684, and see the same point ruled in Equity, in Hodgson v. Lloyd, 2 Bro. C. R. 534.
• 29 Car. 2. c. 3. s. 22.
thereof read to the testator, and allowed by him, and proved to be so done by three witnesses at least. But it is not made necessary that such a revocation by parol, when committed to writing, should be signed or attested. And, where a man by will in writing devised the residue of his personal estate to his wife, and upon her dying in his life-time, made another disposition of the residue by a nuncupative codicil, this was resolved to be good, for by the death of the wife the devise of the residue was totally void, and the codicil was no alteration of the former will, but a new will for the residue ..
Implied revocations of wills, and testaments of personal estate, fall in general under the same doctrine, and are subject to the same principles and rules as those which have governed the decisions in respect to property in land.
But there are also some distinct considerations which apply to legacies in particular.
Where a parent makes provision for a child by his of ademption will, and afterwards gives to such child a portion
of legacies. in marriage, if a daughter, or pays a sum for establishing him in the world, if a son, the legacy is held in general to be adeemed“. But not so if the ptovision made in the parent's life-time, be not of the game kind with the legacy', or be subject to a macon
\ 1 Abr. Eq. Ca. 408. and see 4 Burn. Eccl. L. 203.
. 1 P. Wms. 681, Hartop o. Whitmore.