Estate of Craft

Opinion by

Mb. Justice Mitchell,

The will of Mrs. Hopkins was absolutely inoperative as a will, her marriage to Craft having revoked it under the express language of section 16 of the act of 8th April, 1833, P. L. 250, that “a will executed by a single woman shall be deemed revoked by her subsequent marriage.” Nor is this effect defeated as to the appellant, hy the probate. In Hagarty’s Appeal, 75 Pa. 503, it was held that on a question of distribution the validity of testamentary provisions depending on facts dehors the record may be inquired into notwithstanding probate. And in Robeno v. Marlatt, 136 Pa. 35, the will devised testator’s whole estate to his widow absolutely, and was duly probated, yet after-born children were held entitled to recover in ejectment as if their father had died intestate. If an after-born child can thus claim against a will revoked pro tanto only, there should be no difficulty in his recovery against a will revoked altogether.

The learned court below considered that the will and the written consent of the husband must be construed as one instrument and upheld as an ante-nuptial agreement. As against the husband this would be clearly so upon the principles of equity and was expressly decided in Lant’s Appeal, 95 Pa. 279, but the question in that case was between the husband and those claiming under the will. Here the husband is making no claim and the question before us is different. The will is not in form a marriage settlement at all. It is only treated as such, in connection with the husband’s written assent, by equitable construction, and equity will never carry construe tion beyond the exact purpose for which it is needed. As to Mrs. Hopkins it was not an irrevocable settlement, nor is there any reason to suppose that she regarded or intended it as a settlement at all. Its sole purpose was to bar the husband from the marital rights which he would otherwise acquire in her property by the contemplated marriage. She might have made a deed of settlement under which her children by her first marriage would have acquired rights even against herself, but she did not do so. She chose a revocable instrument, effective for her purpose to bar her intended husband, but otherwise leaving her in free control of her property. She might at any time have made a later will, and her children would have had no standing to object. The instrument she did make was revoked as matter of express statutory law by her marriage, and equity is not called upon to enforce it for a purpose for which it was never intended. The act of 1833 does not revoke it merely as to the. husband, but absolutely for all testamentary purposes, as is shown by the provision that it “ shall not be revived by the death of her husband.” As a will therefore the paper executed by Mrs. Craft was void at the time of her death, and it is only as a will that her children it provides for have any concern with it. As to the appellant in right of his ward, Mrs. Craft must be treated as dying intestate, and the distribution reported by the auditor was correct.

Decree reversed, and record remitted for distribution in accordance with this opinion.