In re the Estate of Mann , 51 Misc. 315 ( 1906 )

Ostrander, S.

It is urged on behalf of the executors and legatee that this proceeding cannot be maintained under section 2647 of the Code of Civil Procedure because the will does not relate exclusively to personal property.

Said section provides that “ A person interested in the estate of a decedent may, within the time specified in the next section, present to the surrogate’s court, in which a will of personal property was proved, a written petition, duly verified,, containing allegations .against the validity of the will, * * *' and praying that the probate thereof may be revoked,” etc.

The language of this statute does not exclude an application in case the will also relates to real estate; and it has been held by the Court of Appeals, construing a similar provision of the Revised Statutes, that such proceedings are not confined to wills, relating solely to personal property, brut are applicable to those proved as wills of both real and personal property. Matter of Kellum’s Will, 50 N. Y. 298.

It is provided by section 44 of the Law of Wills (R. S., part 2, chap. 6, tit. 1, § 44) that “ A will executed by an unmarried; woman, shall be deemed revoked by her subsequent marriage.”"

This is a plain, statutory provision, unambiguous and binding upon those who make wills and upon the courts. It is conceded to be applicable to thisi ease and to require the relief" sought by petitioners, unless the provision made for Mr. Mann in the third clause of the will, in contemplation of Miss McFarlan’s approaching marriage to him, is sufficient to take this will" out of the operation of the statute.

It is argued by the executors that the reason for this statute is, that marriage produces such new relationships that a will made before marriage will not as a general rule express the wishes of a woman after her marriage, and that the will in the case at bar clearly indicates that it was made, having in view the mrriage about to be performed, and making ample provision for her proposed husband.

It is urged that it has never been held in this State that a will made in contemplation of marriage and which makes provision for the intended husband is revoked by the subsequent marriage of the testatrix, and that the maxim “ cesscmte ratione legis, cessat et ipsa> lex ” should apply in this case.

While it is conceded to be the rule that a will made before marriage will not, as a general rule, express the wishes of the; woman after her marriage, yet it is claimed that this reasoning is not applicable where the marriage was contemplated and the husband provided for, as in this case.

Where the statute is plain and free from ambiguity, it is unnecessary to resort to an inquiry as to- the probable reasons for its enactment in aid of its construction. Were such recourse imperative, a sufficient reason for this enactment might be found in the transformation, mental and physical, wrought in woman 'by marriage and cohabitation and by her changed relationships (Lathrop v. Dunlop, 4 Hun, 213-216; affd. 63 N. Y. 610), changes which in the nature of things she could- not anticipate •and provide against in a will made prior to her marriage. Matter of Kaufman, 131 N. Y. 620, affg. 61 Hun, 331. But where, as in this case, the words of the statute are free from uncertainty, it is sufficient for the courts that the Legislature has so -enacted, without inquiring why. The statute is the declaration of an absolute rule without exceptions or qualifications and under it the marriage of the testatrix operated, eo instante, as a revocation. Brown v. Clark, 77 N. Y. 369; Lathrop v. Dunlop, supra.

The words of the statute fit the very case at bar. The testatrix was unmarried when she executed the will; subsequently •she married and the will is- deemed revoked.

-Concerning this act it was s-aid 'by Judge O’Brien (Matter of McLarney, 153 N. Y. 416-419) : “ The legislature might very properly remove it from the statute books by repeal, but in the meantime it cannot be disregarded by the courts.”

It follows that the prayer of the petition must be granted -and the probate of the will and letters granted thereon revoked.

Let appropriate findings and decree be submitted.

Decreed accordingly.