For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For reversal -- None. The opinion of the court was delivered by Francis, J.
This appeal was certified on our motion in order to decide the question of whether the marriage of a man impliedly revokes his antenuptial will. The issue has never before been raised in the courts of this State.
At common law, marriage of a woman ipso facto revoked her will. Upon her assumption of the marital status, the wife's identity became so merged with that of
her husband, and his control over her property so pervasive, that she lost the right to make a will. Consequently, it was considered that because the same capacity is required to revoke a will as to execute one, if the law did not impose revocation as an incident of marriage, the effect would be to endow her will with the quality of irrevocability during coverture. Such immutability was not only contrary to the essential ambulatory nature of a will but inconsistent, as well, with the dominion the husband was entitled to exercise over her person and property. 3 Holdsworth, History of English Law 409, 411, 425, 427 (2 d ed. 1909); 1 Jarman on Wills 148 (3 d Amer. ed. 1855); 1 Page on Wills § 516 (3 d ed. 1941); Schouler on Wills § 424 (3 d ed. 1900); 57 Am. Jur., Wills § 526.
However, the same consequences did not fall upon the antenuptial will of a man. The act of marriage alone did not produce invalidity. Shepherd v. Shepherd, 101 E.R. 29 (1770), note. His will survived until the birth of a child, in which event, in the absence of provision for the child, it was impliedly revoked. Christopher v. Christopher, 2 Dick. 445, 21 E.R. 343 (1771); Marston v. Roe, 8 Ad. & E. 14, 112 E.R. 742 (1838); 6 Cruise, Digest of the Laws of England 101 (1806); 1 Jarman, supra, 148, 149; 1 Page, supra, §§ 510, 515; 57 Am. Jur., supra, § 572. The English courts declared that the combination of marriage and parenthood constituted such a total change in the circumstances of the husband that his previously announced testamentary intent would be deemed altered. After some equivocation on the subject of whether there should be a rebuttable or a conclusive presumption to this effect, the doctrine was rested on the ground that the law imposed on the will at the time of its execution the tacit condition that it would be revoked by implication upon the happening of these specified contingencies. Marston v. Roe, supra.
A number of reasons were advanced for this disparity in treatment, whereby marriage in itself revoked the will of a woman but did not affect that of a man: A wife could take care of herself by antenuptial agreement; the law
gave her dower, of which she could not be divested by a testamentary act of her husband; an afterborn child had no such ability to fend for himself and he had no fixed inalienable life interest in his father's land. And further, it was pointed out that in the event of intestacy, the wife did not qualify as an heir to her husband's realty. Shepherd v. Shepherd, supra; Brush v. Wilkins, 4 Johns. Ch. Rep. 506, 518 (Ch. N.Y. 1820); 6 Cruise, supra, 105; 1 Jarman, supra, 148; 1 Page, supra, § 510; 57 Am. Jur., supra, §§ 526, 572; 95 C.J.S. Wills, § 291(1).
The doctrine of implied revocation produced many problems to vex the courts. Its applicability where a child was born posthumously was challenged vigorously. The contention was that such a birth could not be said to have affected the testamentary intention of the husband because he might not have been aware of his wife's pregnancy or could not know if his wife would miscarry, or that the child would be born alive. One aspect of the question was set at rest in Doe v. Lancashire, 5 T.R. 49, 101 E.R. 28 (1792), where the birth of a posthumous child was adjudged to generate the revocation if the husband was aware of the wife's pregnancy. But as late as 1815, judicial support existed for the proposition that in the absence of such knowledge the will would not be disturbed. Doe v. Barford, 4 M. & S. 10, 105 E.R. 739 (1815). And whether the birth of a child alone after the making of a will would cause revocation was likewise a matter of doubt and uncertainty. Brush v. Wilkins, supra, 516-519. And see Van Wickle v. Van Wickle, 59 N.J. Eq. 317 (Ch. 1900), wherein Vice Chancellor Pitney declared that at common law the event did not affect the will. Moreover, there were other qualifications on and puzzlements about the rule in action which interfered with the certainty and stability of the law in a field where such qualities were urgently required. 1 Jarman, supra, 152-156; 4 Kent's Commentaries 522-525 (3 d. ed. 1836).
Another facet of the subject should be mentioned for purposes of perspective. A provision was added to the English
Statute of Frauds, 29 Car. II, c. 3, § 6, that a devise could not be revoked except by some other will or codicil in writing, or other writing declaring the revocation, or by burning, cancelling, tearing or obliteration; otherwise it should remain in force, "any former law or usage to the contrary notwithstanding." 8 Statutes at Large 406 (1763). This language stimulated the view that the doctrine of implied revocation had been removed from the law. However, in Christopher v. Christopher and Doe v. Lancashire, supra, the contrary holding was announced. The declaration was made, although not without dissent, that the statute applied only to express revocations and that the instances of implied revocation under discussion remained a living part of the common law. 1 Jarman, supra 150, 151; 1 Page, supra, § 488. Finally, in 1837 Parliament rendered the entire issue academic by enacting a new statute of wills which provided, among other things, that "[e]very will made by a man or woman shall be revoked by his or her marriage" (with an exception not here material) and that "[n]o will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances." 7 Will. IV & I Vict. Cap. 26, §§ 18, 19; 26 Halsbury's Statutes of England 1339, 1340 (2 d. ed. 1951).
With this historical background, we come into New Jersey to observe the evolution of our law on the subject. Search has revealed no case in the reports prior to 1824 dealing with the effect of the marriage of a man or woman on an antenuptial will.
Although in Colonial times a statute existed which required wills relating to realty to be signed and published in the presence of three subscribing witnesses, L. 1713-14; Patterson, Laws of New Jersey 5; Lacey v. Dobbs, 63 N.J. Eq. 325 (E. & A. 1901), our first comprehensive legislation on the subject of wills and descent and distribution followed the Revolution and statehood.
In 1795 the first general act "concerning wills" was adopted. Patterson, supra 189. A comparison of section 2 thereof, regulating the manner of revocation, with section 6
of the English Statute of Frauds of 1676 which covers the same subject, establishes beyond doubt that our act was patterned after the latter. One circumstance is particularly revelatory. As has been indicated, the English act, after prescribing the specific methods of revocation, ended with the words "any former law or usage to the contrary notwithstanding." It will be recalled that the quoted words had given rise to the controversy as to whether section 6 had been designed to eradicate the implied revocation doctrine, and that in 1771 in Christopher v. Christopher, supra, it was held otherwise, and the application of the section was limited to express revocations. Also, as set forth above, it may be noted here that in November 1792, less than three years prior to our act, Doe v. Lancashire, supra, was decided. It was a landmark case in the field, in which, among other things, the construction of the same section was questioned and again confirmed. An obviously rational inference is that our Legislature was aware of the common-law doctrine of implied revocation and intended to avoid the argument which had troubled the English bench and bar. The motive was accomplished by excinding from our statute the quoted language concerning former law or usage. Thus it is apparent that since the Constitution of 1776, section XXII, adopted the common law of England for New Jersey, the principles of implied revocation of wills of men and women resulting from marriage and the birth of children, as they then existed, became operative here.
Some further aspects of the formative stages of our body of statutory law should not escape attention. Section III of the 1795 act continued the incapacity of a married woman to make a will disposing of "lands, tenements or hereditaments." There was no need to act specifically with respect to her personalty. On marriage and during coverture, it either passed to the husband's ownership or became subject to his control. Although she could make a will bequeathing her personal estate with his consent, the consent was as ambulatory as the will and could be revoked at any time during her life and after her death before probate. 1 Jarman,
supra 30-32; Van Winkle v. Schoonmaker, 15 N.J. Eq. 384 (Prerog. 1862). Section XII took cognizance of this rule of the common law and continued it, prescribing:
"That it shall and may be lawful to and for all and every person and persons, by his, her, or their testament or last will in writing, to give, bequeath or dispose of all his, her, or their goods, chattels, and personal estate, in the same manner as he, she, or they lawfully might do before the passing of this act."
In the same year, 1795, legislation was approved concerning the distribution of intestates' estates. Patterson, supra, 153. Under it the widow was given one-third of the personal estate and the remainder went to the children. If there were no children or representatives of them, the widow was to receive "one moiety" with the residue going to the next of kin. Section XIII. But when a married woman died intestate, her personal estate passed to the husband. Section XV. Then in 1799, Patterson, supra, 343, the widow's right of dower was established. A life interest in one-third of her husband's real estate was conferred irrespective of whether he died testate or intestate. Section I.
Obviously, all of this legislation was a reflection of the influence of the English statutory and common law, and represented the effort of the infant sovereignty to govern itself and its people.
No significant development, either judicial or legislative, in the area of our study occurred until 1824 when the Wills Act of 1795 was supplemented. L. 1824, p. 174. Before discussing the new matter, added attention may be given to a significant decision in New York which was issued in August 1820. In Brush v. Wilkins, supra, (which has been cited in practically every opinion in this country where the present problem has been given consideration), Chancellor Kent accepted the English common-law doctrine that marriage of a man followed by birth ...