[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 407 Prior to the year 1849 no married woman was authorized to devise or bequeath her real or personal estate.
By the statute enacted in that year, it is provided that "Any married female may * * * devise real and personal property and any estate, or interest therein, and the rents, issues and profits thereof in the same manner and with like effect as if she were unmarried."
The plaintiff brings into court a will duly executed since *Page 408 this act was passed, made by a married female, and inquires, what is its legal effect?
The answer would, on first impression, seem to be obvious, to wit: It has the same legal operation and effect precisely as it would have if the testatrix was unmarried when she made and published the will. If, being unmarried, such a will would operate to give to the devisee and legatee the property therein mentioned, then the fact that she was a married woman shall not impair its efficiency.
An unmarried woman has full power to dispose of her estate, real and personal, to whom she pleases, and her will has effect according to its tenor. If, by statute, the power is conferred upon a married woman to make such disposition with the like effect, her will should operate according to its tenor, also.
The argument of the respondent would be quite plausible if the statute conferring power on a married woman to devise, had declared that she might devise, c., with the same power already possessed by her husband, and with like effect. In such case, whatever statutes were in force operating to work a partial or total revocation of his will, might be said to apply to hers, also.
This is giving a somewhat literal construction to the statute, and it may be proper to consider whether it be too narrow. What if anything would operate to impair the effect of a will made by an unmarried female? Her subsequent marriage operates as a revocation (2 R.S., 64, § 44), but that has no application here, for the testatrix was already married, and being married, her state of coverture shall not operate to affect the will she made. It is not claimed that, by the common law, the mere birth of children operated in any case to revoke or affect the operation of a will.
By statute, however, "Whenever a testator shall have a child born after the making of his will, and shall die leaving such child, so after born, unprovided for by any settlement and neither provided for nor in any way mentioned in his will, every such child shall succeed to the same portion of his *Page 409 father's real and personal estate as would have descended or been distributed to such child if the father had died intestate," c.
This statute was in full force when the act authorizing a married female to devise, c., was passed, and it is claimed that the defendants here may take under its provisions a share of their mother's estate.
But this statute must be deemed to have been before the mind of the legislature when the act of 1849 was passed, and they nevertheless said that the will of a married female shall have the like effect as if she were unmarried, i.e., shall have effect according to its tenor. It would have been easy to add, if so intended: provided always, if children be thereafter born of her not provided for in such will, or otherwise, they shall take the same share of her estate as if she died intestate.
This substantive proviso the court is asked to annex to a statute which declares that the will shall have like effect as if the testatrix were a feme sole.
It is plausibly argued that there is no sufficient reason why the will of a married female should operate to the disherison of her after-born children, and yet that the will of her husband should not operate to the disherison of his children afterwards born.
That may be quite true, and may, perhaps, indicate that when the act authorizing married women to devise and bequeath was passed, the contingency that children might afterwards be born of them was overlooked. And yet it is possible to suggest, that the legislature intended to give a married woman full power over her property and leave the children to such provision as the father may make for them; or that it was presumed safe to leave the disposition of her property under the influence of her natural affection and maternal instincts.
Again, it is said that to leave the will of a married woman to have full effect, notwithstanding the birth of children, is to produce a want of harmony in our several statutes. That they should all be read together, and should be construed so *Page 410 as to harmonize with a general intent that no will should be permitted to operate to cut off children born after it was made.
The fault of this suggestion arises from overlooking the fact that the authority given to a married woman to make a will is itself an innovation upon the system. It has operation by force of the statute, conferring the authority and precisely such operation as the statute gives it.
To annex to this statute a qualification inconsistent with its language, and especially a qualification which is in its own terms inapplicable to the will or estate of a mother, is not construction, but legislation, and that is not within the province of a judicial tribunal.
For these reasons, as well as because I concur in the dissenting opinion in the court below, that no rule of construction furnished by the Revised Statutes or otherwise, will enable us to read the 49th section of the Revised Statutes, by substituting mother for "father," and mother's real and personal estate for "father's real and personal estate," I think the judgment should be reversed and the plaintiff be declared entitled to the whole estate of the decedent, real and personal, according to the tenor of the will.
HUNT, Ch., J., LOTT, MASON and DANIELS, JJ., concurred with WOODRUFF, J., for reversal.
GROVER and JAMES, JJ., for affirmance.
Judgment reversed.