In re Carey's Estate

The opinion of the court was delivered by Wheeler, J.

The probate of this will did not at all settle what property should pass by it. The statute, Gen. Sts. 379, s. 20, provides that “ the probate of a will of real or personal es *245 tate,” “ shall be conclusive as to its due execution and that only is the effect, generally, of the probate of a will. Toller Exrs. 68, 242 ; Holman v. Perry, 4 Met. 492 ; and was what was understood and intended to be the effect of the probate of this one when it was done. Morton v. Onion, 45 Vt. 145 . The questions as to what this will did pass, remain, and are now to be determined on the facts agreed to. The instrument being established as the will of the testatrix, it would pass all the property embraced in its provisions that she had testamentary power over at the time of her death. The provisions of it embrace both lands and personal estate; and, as the power to devise the former and to bequeath the latter had, for a long time before it was made, stood on different footings, it is somewhat necessary to examine into her testamentary power over each. It has been thought by many that before the Conquest, lands were devisable, and by some that they were not; but however that may have been, it is agreed by all that after that they were not, on account of the tenure by which they were held, and not on account of any statute; and it became settled that at common law they were not. Swinb. pt. 3, s. 2; Co. Litt. 3 b.; 2 Bl. Com. 374. The statute 32 H. VIII, c. 1, s. 30, authorized all and every person to devise lands. These words in that statute were not understood to include femmes covert; but to avoid scruples, 34 H. VIII, c. 5, s. 14, expressly excluding them, was passed, and that was thought to have been idle. Sir Geo, Oaverlye’s Case, Dyer, 354 b.; Powell on Devises, 140. Since then, except in a few instances, general words like those in statutes of wills, have been understood to be used, to enable those who otherwise had testamentary power to dispose by will of the particular class of property named in the statutes, and not to give power to others to make wills. Marston v. Norton, 5 N. H. 511; Osgood v. Breed, 12 Mass. 525 ; George v. Bussing, 15 B. Mon. 558 ; Morse v. Thompson, 4 Cush. 562 ; Lee v. Bennett, 31 Miss. 119 ; Cutter v. Butler, 5 Post. 357. In 1847, the Legislature of this state passed an act that enabled married women to devise their lands, or any interest therein descendable to their heirs. Gen. Sts. 471, s. 17. By force of this statute, this testatrix had testamentary control of her lands up to the time of her *246 death, the same as she had when she was sole and made her will, and they would clearly pass by the will to the devisees.

But neither when the will was made, nor when she died, had any act been passed, authorizing femmes covert to make wills of personalty; and, as they would not be included in the general words of the statutes relating to such wills, any more than they would be in like words relating to wills of lands, she had the same and no more power by will over her personal estate than she had at common law. By that law, however, there was no presumption that femmes covert lacked mental capacity to make wills, for they could dispose of property over which their husbands had no control as well as femmes sole ; but they lacked full and independent power over that which their husbands had the right to control. As was said by Barrett, J., in Morton v. Onion , “ The change of condition effected by marriage, as that expression is sometimes used, derives all its significance, as well as its operative force as a revocation of a will, from the fact that peculiar rights accrue to the husband in respect to the property owned by the wife at the time of, or coming to her during, coverture.” These peculiar rights that accrue are, that the marriage places all the personal property held by the wife in her own' right and not limited to her separate use, within the reach of the husband, .so that he can take it to himself if he pleases, and whether he does take it or not, by his right to take it he has power to control its disposition, so that the wife is without the full control and freedom of choice about the disposition of the property that is necessary to the making a valid will. As was said by Richardson, C. J., in Marston v. Norton, 5 N. H. 512, “ She is under a civil disqualification arising from want of free agency and not from want of judgment.” Norse and Kembling, 4 Co. 60; Swinb. pt.2, IX; 2 Burn’s Eccl. Law (ed. 1763), 507; Hodsden v. Lloyd, 2 Bro. Ch. 534; Morse v. Thompson, 4 Cush. 562 ; Mod. Prob. of Wills, 6. And in this case, although the will was made before marriage, and while the testatrix had full power over the disposition of all her property, — as there was no placing the property to her separate use, and it was not so held by her in any way, — all her personal property became, by the marriage, so situated that the *247 husband could control it if he would, and thereafter she was under that power for restraint, and was without full testamentary freedom as to that property. As to such a will, it is laid down in Swinb. pt. 2, ix, that, “ albeit the Testament be made before the Marriage, yet, she being intestable at the time of her death, by reason her husband is then living, the Testament is voide ; for it is necessary to the validity of a Testament that the testator have abilitie to make a Testament, not onely at the time of the making thereof,- when the Testament receiveth his essence or being, but also at the time of "the Testator’s death, when the Testament receiveth his strength and confirmation.” And in Powell on Devises, 140, it is said that the law “ considered .the taking of a husband, being the woman’s own act, to amount to a countermand in law, at least so long as coverture continued,” of her will previously made. This has always been the common law governing wills of femmes covert, so far as the force of the wills, themselves as testamentary dispositions of property, has been concerned. Such wills have sometimes derived effective force from consent given by the husbands, for the reason that consent by the husband to a bequest by the wife of property to which he had a right, would amount to a gift by him of his interest, and thereby pass the property according to the will, but not by force of the will alone, nor because his consent would add anything to her testamentary ability. Bracton, 60 ; Plowden, 343 ; Andrew Ognels Case, 4 Co. 48 ; Swinb. pt. 2, IX; Cotter v. Sager, 2 P. Wms. 624 ; Stone v. Forsyth, Doug. 707; Hodsden v. Lloyd, 2 Bro. Ch. 534; Scammell v. Wilkinson, 2 East. 552; Cutter v. Butler, 5 Fost. 357; Lee v. Bennett, 31 Miss. 119 ; Redf. Wills, 23. And probably there has not ever been, and there is not now, really any question, but that at common law, a wife could make a will of personalty that, with the consent of the husband carried far enough to have his gift take effect by delivery,-or far enough to bind him to the probate, where the property would go to him but for the will, would carry the property to the legatee. Redf. Wills, 22. But the consent must be to the particular will, and not mere consent to making some will, and, generally, be continued to the probate, to be operative. Redf. 24. And as matter of course, the consent *248 must be given at a time when the husband has a right, either inchoate or perfect, to the property bequeathed, to be of any effect. There are some cases where the consent has been given by ante-nuptial agreement or marriage articles made at a time when the husband had no right to the property, and the wills been held to be operative ; but more because the agreement or articles would keep the property so separately hers and beyond his control that no consent of his would be necessary, than because consent to the wills given at that time would have any force. Scammell v. Wilkinson, 2 East, 552 ; Lloyd v. Hodsden, 2 Bro. Ch. 534. In Fisher v. Kimball, 17 Vt. 323 , the property was by ante-nuptial agreement placed to the sole use of the wife. It is suggested that if the husband actually does leave the property to the separate use of the wife during the coverture, without reducing it to his possession at all, when the coverture is ended by her death the property should pass by her will, the same as if it had been limited to her separate use. But there is this difference between the two cases : when the property is so limited, his control is limited, and her testamentary power is complete, and her will operative the same as any person’s ; but when he merely leaves it to her sole use, she is exposed all the while to his power to take it, and while she is subject to that restraint, her will is inoperative. As to a will of lands by a wife, Swinburn, pt. 2, ix, says : “ Albeit it did appeare by due proofe that the husband did not constraine his wife thereunto, but that she of her owne accord or free motion did make any such devise, either to her husband or' to any other person by his consent, yet, is not the devise good, as .well because the words of the Statute are generall (and where the law doth not distinguish there may not we distinguish), as for divers other reasons grounded' in the common Lawes of this Realme.” The agreed facts in this case show no marriage articles or ante-nuptial agreement to keep her property separate from his, nor anything that would cut down his right to her personal property or his right to reduce her dioses in action, so that as the case stands, her freedom of will as to all this personalty was placed by the marriage subject to as much restraint as that of any woman could be, and her will previously made was, according to *249 all the authorities, to that extent rendered inoperative. And as the facts show that this property was not in fact reduced to possession by the husband, as our law then stood, when she died, his right to it wholly ceased, and it became the property of either her legatees or her heirs, without reference to any rights of his. Holmes v. Holmes, 28 Vt. 765 ; Howard v. Savings Bank, 40 Vt. 597 . When the rule of the common law giving force to the wife’s will on account of the consent of the husband to the probate grew up, the husband had the full right to administration of her estate without accountability, so that, in effect, the residue of her estate after satisfying debts and charges, would become absolutely his, unless she had made a will and he should consent to the probate. 2 Bl. Com. 515 ; 2 Redf. Wills, 69. Then his consent would be 'merely a gift or renunciation of his own rights, and the operation of the will be founded on his act, as before mentioned. But here, as husbands, according to the law as it stood when this wife died, would, after death of the wives, no longer have any right to property that was the wives’, they would have nothing to yield by giving consent to the probate, and for that reason no consent they could give would be of any effect. It appears that this husband did give consent to the probate of this will; but as he had no rights to be affected by it, the consent would have no more effect upon the rights of others than that of any other person without right would have. So this will is not made operative by any consent of the husband, and the personal property of the wife did not pass by force of it. There has been some question made as to whether her choses in action not reduced to'possession by the husband, would not pass by the will, although her personal chattels should not. And there are some books and cases where language is used that, taken by itself, would indicate that such choses would so pass. Swinb. pt. 2, ix. But the reasons for her disability extend to everything that the husband would have power to take to himself, which would include things in action held in her own right, and it is apprehended that such expressions refer to rights held by the wife in a representative capacity, and not to those held in her own right. Scammell v. Wilkinson, 2 East, 552. On principle, the disability would seem to extend to every *250 thing that would go to the husband as administrator; and that is according to most of the authorities that have been examined. Johns v. Rowe, Cro. Car. 106 ; Hodsden v. Lloyd, 2 Bro. Ch. 534 ; 2 Burn Eccl. Law (ed. 1763), 509 ; Garrett v. Dabney, 27 Miss. 335 ; Cutter v. Butler, 5 Fost. 357 ; Mod. Prob. of Wills, 7.

Although, according to this result, there is a large part of the property of the testatrix that does not pass by the will, and would ordinarily be subject to administration by itself, still, as the executor has administered upon that part as well as upon the rest, and the whole is ready for distribution to those entitled to it, there is no occasion for any other administrator or further administration ; the distribution can properly be made upon the administration already had. Hays v. Jackson, 6 Mass. 152 . And although the judgment of the County Court, decreeing distribution of the,whole according to the will, must be reversed, as, apparently, all the facts upon which distribution is to be made are upon the record here, according to the later practice in this court, final judgment, making distribution as the County Court ought to have made it, is to be rendered here.

The will, being operative on the real estate, would carry that to the devisee; and being revoked by the marriage as to the personal estate, would leave that to go to the heirs at law. The real estate appears to have been converted into money: but this is presumed to have been regularly done under the authority of the Probate Court, for the benefit of those interested, and the avails are to go where the realty would have gone. Gen. Sts. 395, s. 38. The facts show that Jonathan Blake and Hannah Morton are the only heirs at law, and clearly all the personal property is to be decreed to them. Thus far there is no question about the distribution. But it remains to be determined who is the devisee or who are the devisees of the real estate Or, as the will in respect to personalty was revoked .by the marriage, it is necessary to determine what legacies were revoked. There can be no question but that the specific legacies of personal chattels to William Bean and Hannah Morton were revoked. The real question is concerning the bequest of eight thousand dollars to the American Missionary Association. If that, under the circum *251 stances, is a bequest of personalty, it was revoked and is inopertive ; if it is a bequest to be paid out of the realty, it is valid and operative. In terms this is a general pecuniary legacy of eight thousand dollars, or, if that should be more than half her estate after her decease and the decease of her mother and the settlement of her estate, of “ a sum equal to one half of” her estate. In either event this was to be a bequest of a sum of money. Had her estate consisted so far of realty that there would not be enough personalty to pay the legacy of eight thousand dollars, or the sum equal to one half of her estate, the payment of it, or of the deficiency, as the devise to the Congregational Society was of the remainder, would, probably, have been a charge upon the realty. But that does not alter the nature of the bequest. The provision is still a legacy of so much money, and not a devise of realty. 2 Redf. Wills, 871 ; Bligh v. Earl of Darnley, 2 P. Wms. 619. But the testatrix had ample personal estate to pay this legacy, and, if there had been no revocation of any part of the will, there could have been no occasion to resort to the realty for payment of it. ” It is true that no personalty would pass by the will after the revocation, with which to pay that legacy; but the question is not, whether the property was revoked, but whether the legacy was revoked. The rule is and has always been that general pecuniary legacies are to be paid out of the personal assets, if these assets are sufficient, and they are, in that case, strictly bequests of personal property. 2 Redf. Wills, 869; Humes v. Wood, 8 Pick. 478 ; Hays v. Jackson, 6 Mass. 149 ; Toller Exrs. 417 ; Inchiquin v. O’Brien, 1 Wils. 82.

According to this rule, as the personal assets were ample, this was a bequest of personalty, and was subject to revocation by revoking so much of the will as related to personal property, the same as the other bequests of personal property were. This being the case, the suggestion that there was no personalty that passed by the will to satisfy it, is of no force, for the legacy being revoked, there is no occasion to look for property of any class to satisfy it.

Further as to this question; the words of the will are significant. There is no mention of realty in connection with this *252 legacy, except in limiting the amount of it, while the provision for the Congregational Society is by gift of the remainder of her estate “ both real and personal.” Here is an express devise of her real estate to the Congregational Society, which would be free from all general legacies that there were sufficient personal assets to meet. To ascertain what was revoked, it is necessary to look at the will according to its force and eifect before revocation, and then after, and ascertain what the act of revocation took away. Had the testatrix died sole at the time of marriage, her will would have spoken a bequest of eight thousand dollars to the Missionary 'Association, and a devise of the real estate with a bequest of some personal to the Congregational Society. By the marriage, all was revoked but the devise, which was left in force,' and remained so to her decease, and has so remained ever since.

This is according to the English rule relating to marshalling assets where lands have been devised to charitable uses not authorized by law. There the unauthorized devise was left to fail by itself, without marshalling personal assets that might be lawfully bequeathed to such uses in favor of the devisee. Toller Exrs. 423 ; 2 Redf. Wills, 788; Makeham v. Hooper, 4 Bro. Ch. 153.

Judgment of County Court reversed. And upon the agreed statement of facts, the sum of $11,927, avails of real estate, with, its accumulations, if any, is decreed to the Congregational Society at Milton Ealls, for its own uses and purposes forever; and the residue of the estate to Jonathan Blake and Hannah Morton.

To be certified to Probate Court.