Roane v. Hollingshead

McSherry, J., delivered the opinion of the Court. On the ninth of December, 1889, Rachael Hollingshead, then being a feme sole, made and executed her last ³⁷⁰ will and testament in due form of law, and on the twelfth of August, 1891, she married Louis E. Roane. On May the thirteenth, 1892, she died. Her will was propounded for probate in the Orphans’ Court of Baltimore City, and a caveat was thereupon filed by her surviving husband, wherein he claimed that the marriage had operated to revoke the will previously made.

The single question involved, then, is, whether the marriage of a woman revokes a will made by her whilst she was single; and this is a question of first impression in Maryland. At the common law, since the decision of Forse and Hembling’s Case in 1589, 4 Co. Rep., 60, marriage revoked a woman’s will previously made. Hodsden vs. Lloyd, 2 Bro. Ch. 534; Doe, dem.

Hodsden vs. Staple, 2 T. R., 684; 2 Green. Ev., sec. 684; 1 Jar. on Wills, ch. 7. And this was so because marriage destroyed the ambulatory character of the will, and without that feature the paper ceased to be a will at all. The marriage destroyed the ambulatory character of the will, because by the marriage the wife was deprived of the power to devise her real estate, and was prevented from bequeathing her personal property, except by the consent of her husband given at the time of the execution, and continued until the probate of the will. 2 Jarm. on Wills, 129.

Her incapacity to make a will after marriage prevented her from altering or revoking one made before marriage, and it was this incapacity, and nothing else, that constituted the reason upon which the common law rule as to revocation by marriage was founded. This incapacity arose out of her husband’s marital rights to control her property. When those rights did not exist or were excluded, as in the execution of a power of appointment, the incapacity ceased, and the wife could, notwithstanding her coverture, make a valid will. Cutter vs. Butler, 25 N. H., 343; Miller vs. Phillips, 9 R. I., 143.

It is obvious, therefore, ³⁷¹ that the rule does not and never did apply to a case where the reason of the rule was absent. By sections 1 and 2 of Art. 45 of the Code, as respectively amended by the Acts of 1892, ch. 267, and 1890, ch. 394, it is provided that the property acquired or owned by a married woman, both before and after marriage, “by purchase, gift, grant, devise, bequest, descent, in a course of distribution, or in any other manner * * * she shall hold for her separate use, with power of devising the same as fully as if she were a féme sole, &c.” This legislation removed every common law disability to which a féme covert was formerly subjected, with respect to making a valid will. She was placed by it so far as her capacity to make a will is concerned, upon exactly the same footing as a féme sole. She can revoke one already made, and she may by will dispose of her property against the wishes of her husband, and even to his entire exclusion.

The statutes clothe her with full and absolute testamentary power over her own property, no matter how that property was acquired, and give to her husband no authority to restrict her exercise of it. If under these circumstances her marriage operates to revoke her will made before marriage, the revocation would be idle and utterly fruitless, because the moment afterwards she could confessedly make a new and valid will in identically the same terms as the revoked one. It was, as we have said, only because she could not after marriage execute a will, or a revocation of one previously made, that the common law annulled her will upon her marriage, and it would be exceedingly strange if, after the removal of her disability in this respect the consequence of that disability should still continue. Upon principle, therefore, it would seem to be clear that when the statutes clothed her with unrestricted power to make a valid will, as fully as though she were a féme sole, they necessarily struck down, at the same time, the ³⁷² results which depended on her former incapacity to make a will at all.

This conclusion is fully supported by many well considered cases. In Illinois the Statute of Wills of 1845 provides that married women shall have power “to dispose of their separate estate, both real and personal, by will or testament in the same manner as other persons.” By the Act of 1861 entitled “An Act to protect married women in their separate property,” all the property of a married woman is made her