Adams v. Kellogg ( 1786 )

By the whole Court.

"With regard to the second exception to the will, we do not find proof of any particular acts of coercion, or maltreatment, used to obtain it; but thei case, in this respect, is left to rest on the common presumption arising out of the condition of coverture.

As to the other exception — It is a general rule of the English common law, that a feme covert cannot make a will, because she is under the power of her husband, and obligations and habits of submission to him. The reason of this rule applies with special force, in case of a devise directly to the husband himself; and it holds good in all countries. The disability of a feme covert in this respect, at common law, is not removed by the statute of wills in this state; for it excepts persons “legally disabled,” as feme coverts in particulai*, were considered at common law to be. "With regard to the exceptions to this general rule, as they are laid down in the books, they do not go at all to real estate (which is the most important, as well as most convenient to be preserved for heirs) nor to other dispositions that may benefit the husband, or to obtain which might induce from him coercion or other measures, destructive of family peace and quiet. A feme covert, it is said, may make a will of personal estate, witb tbe consent of ber husband; but this is only the husband giving away his own estate in compliance to his wife; or may be in compliance with a marriage settlement; and he may revoke the will before or after her death, at any time, until it be proved.

It is said also, that a feme covert may make a will of her things in action; but the husband can have no inducement to obtain a will of these; for he can at pleasure reduce them to possession, and make them his own without a will, at any time during the coverture.

It is further said, that a feme covert may make an executor of things in her hands, as executrix; but she cannot devise them. It doth not affect the interest of her husband, nor that of her heirs, whether she make the appointment or not.

There is one case, indeed, in which a feme covert is admitted to have a power with her husband to dispose of real estate, but it is not by will; she may do it in England by fine, and here by deed; but this may be of necessity, for the present support and better accommodation of herself and family. She is to be examined also before a magistrate, ■whether she acts freely; neither of which reasons operate in favor of her having power to dispose of her estate by will.

It is also against the general policy of the law, with regard to marriage, which makes the wife one with her husband, and disables her separately or without him, to make any contract, or do any legal act to bind his interest or her own; that she should have a power of contracting with him, or devising to him, which supposes her possessed of a contracting or disposing power, independent of him.

Wherefore, we are of opinion, that the devise, in this case, from the feme covert to her husband, is void; and that the decree of the Court of Probate, approving the will, should be reversed.