Fisher v. Kimball

The opinion of the cburt was delivered by

The only question, properly arising in this case, is in regard to the right of a married woman to dispose of her separate personal estate by will. By statute, in this State, the right to dispose of real and personal estate is put upon the same ground, with the exception of nuncupative wills of personal estate to the value of two hundred dollars, which shall be reduced to writing by some witness within six days after they are made, and presented for probate within six months after the death of the testator.

In England married women are expressly excepted from the statute of wills. They cannot, therefore, dispose of their real estate, nor of their personal estate, except it be such as is settled to their separate use, or which they hold in the right of another, as trustees merely. But it seems to be conceded on all hands, that, even there, a married woman may dispose of all her estate by will, with the express consent of her husband, or where, by marriage settlement, the husband expresslyconsents that she shall have this right. 2 Kent 170. Reeve’s Dom. Rel. 137 et seq.

As our statute expressly excepts from the right of making wills persons not of full age and sound mind, it is supposed by many that it must include married women. Judge Reeve seems to take this view of similar statutes; — and, if it were necessary, I think very good reasons might be urged in favor of that view.

No farther objection is raised to the trial below, except to the form of putting the case to the jury; and we do not perceive that that is objectionable.

Judgment affirmed.