Edward C. Smith and Edward A. Brice, named executors in and of the paper purporting to be the last will and testament of Martha S. Clemson, late Martha Smith, deceased. Appellants, v. John B. Clemson, caveator, respondent

Delaware Superior Court1880

6 Houst. 17111 Del. 171

Summary · law.co

Holding. The court affirmed the register's order refusing to admit the will to probate. Because the will was executed before marriage and was revoked by Martha Smith's subsequent marriage to Dr. Clemson, the 1875 statute—which was prospective in operation—could not retroactively restore the revoked will's validity.

Martha Smith executed a will in 1874 while unmarried. She later married Dr. John B. Clemson in 1878 and died that same year without revoking the will. Under common law, marriage automatically revoked a woman's previously executed will. The executors sought to probate the will, arguing that two state statutes—one from 1873 and one from 1875—preserved its validity. The 1873 statute allowed married women to make wills with their husband's written consent; the 1875 statute permitted married women to make wills without spousal consent. The executors contended that the 1875 statute retroactively saved the will from revocation.

The court rejected this argument, holding that the 1875 statute was prospective in nature and could not retroactively revive a will that had already been revoked by marriage. Applying settled principles of statutory construction, the court reasoned that statutes should not be given retrospective effect unless the statute's language plainly and unmistakably demonstrates such intent. The 1875 statute contained no language indicating retroactive application. The court further noted that allowing such retroactive effect would constitute a fraud upon the husband's marital rights, as it would permit a woman to dispose of property on the eve of marriage without her intended husband's knowledge.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a statute enacted after a woman's marriage can retroactively preserve a will revoked by that marriage
Whether statutes should be construed to have retrospective effect absent plain and unmistakable language
Whether retroactive application would constitute fraud upon marital rights

Procedural posture

The case was appealed from the register of wills' order denying probate of the will.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Wootten, J.,

delivered the opinion of the court.

This case is before this court on an appeal from the order or decree of the register of wills, refusing to admit to probate the paper writing purporting to be the last will and testament of Martha Smith, dated the ‘21st of March, 1874, who, subsequently to the execution thereof, and on the 27th day of February, 1878, intermarried with and became the wife of the Rev. John B. Clemson and died on the 14th day of August in the same year, without issue, and without revoking the said will made by her while a feme sole. The executors named in the will after the death of Mrs. Clemson, produced it before the Register of Hew Castle County and insisted on its being admitted to probate. Objections were interposed in behalf of Dr. Clemson, the surviving husband, on the ground that the will having been made and executed by Martha Smith, a feme sole, was revoked by her subsequent marriage.

To this objection the propounders of the will say that although it is true, that by the common law the will would have been revoked by the marriage, our statutes save it from the operation of the common law rule. The admission by the proponents of the will, that it would have been revoked by the marriage but for our statutes, narrows the case down to that question. We are, therefore, now to consider whether either the act of 1873 or that of 1875 saves and takes out of the operation of the common law rule this paper writing purporting to be the last will and testament of Martha Smith not Martha Clemson which she was at the time of her death, and when her will could only become a valid one if at all. This paper was executed on the 21st day of March, 1874. That Miss Martha Smith had an undoubted right to make a will when she made the one in question is not and cannot be denied ; nor is it denied that her will was revoked by her subsequent marriage with Dr. Clemson, unless its validity was preserved by the statute of 1873 or that of 1875. The former declares that a married woman may with the written consent of her husband given under his hand and seal, in the presence of two witnesses, dispose of her property by will. The paper writing purporting to be the last will and testament of Mrs. Clemson offered for probate and to be set up as such was not, of course, made under the provisions of the statute of 1873, for it was made and executed by Martha Smith, a feme sole, and that statute could not take it out of the common law rule and make the will a valid one, it would not have been such a will as could have been set up and established if the testatrix had been married at the time of its execution, not having the consent of the husband and the formalities required by the statute.

But the propounder of this will alleges that the statute of 1875, passed after the date and execution of this will, authorizes married women to dispose of their property by will without the consent of their husbands, which is true; that statute does thus enable married women to make dispositions of their property by will, but I do not suppose that the legislature intended to apply the provisions of the act to wills that had been made and executed by unmarried women before the passage of the statute, nor have I been able by the aid of any authority or by the force of any argument or mode of reasoning to bring my mind to the conclusion that this statute has the effect of resuscitating the revoked will of Martha Smith, and restoring its ambulatory character, and finally, on her death to make it a valid will of a married woman as she was at the time of her death, being the wife of Dr. Clemson, the contestant. Such a conclusion could only be arrived at, if at all, by giving the statute a retrospective operation where it was evidently designed to be a prospective one; there is no feature to be found in the act itself from which an inference can be drawn that it was intended to be retrospective, but on the contrary, it is apparent, that the legislature considered it a prospective act, for its language is expressive and I think conclusive as to intention and is not susceptible of any other construction.

To give to an act or statute a retrospective operation or action would be contrary to well-settled principles of law applicable to the construction of statutes, unless it be plainly and unmistakably so provided by the statute. This principle has been recognized by our own court and very clearly so in the case of Jones v. Wootten, 1 Harrington, 77, in which the opinion of the court was delivered by Judge Black and concurred in by Chief Justice Thomas Clayton. It is there said the court ought not to give to a law a retrospective operation or action if it be susceptible of any other.

The power that makes, is not the power to construe a law. The legislature may declare what the law shall be, but not what it is or what it has been. That power belongs to the judicial department alone. This proposition is very clear and not only has the sanction of our own courts, but it has been so held by the Supreme Court of the United States. ^

Would not such a disposition of property by a feme sole on the eve of marriage, without the knowledge of her intended husband be a fraud upon his marital rights ?

It has been held by the courts of this State that in the ease of a ward settling with her guardian, who was her father, on the eve of her marriage, without the knowledge of him to whom she was afterward married, discharging her guardian from a large portion of his indebtedness to her, was a fraud upon the husband’s marital rights, and therefore void, and the settlement treated as nullity. I see no material difference between that case and the one now before this court.

It is the opinion of the court, that the order and decree of the register, refusing to admit the said paper writing, purporting to be the last will and testament of Martha Clemson, was correct, and it is therefore ordered and decreed by this court, that the order and decree of the register be and it is affirmed.