Lancaster daily intelligencer. [volume] (Lancaster, Pa.) 1864-1928, 1880-10-06
LANTS APPEAL.


the Court Below
The following is the opinion delivered
by Judge Sharswood, reversing the deci-
sion of Judge Patterson, which nullified
the will Of Mrs. Mullen and distributed
her property under the intcstate laws:
Lant's Appeal.
appeal from the decree Of tie Orphans
Court Of Lancaster County:
SHARswOOD, c. j.
There arc some matters involved in this
controversy which must be assumed ii not
conceded rs not in dispute. First, that the
instrument purporting to be the last will
and testament of Elizabeth Nj. Dunn,
dated February 8, 1876, cannot take effect
as will, having been revoked by her mar
riase with the appellee on the fOllOwin.
day. Probate OF it was refused by the
tribunal having exclusive jurisdiction as
far as personal property is concerned, and
its decree unappealed from is conclusive.
Second, This revocation was by the posi-
tive provision Of the statute 8 April, 1853.
;. IA, Pamph. 2, ESQ: A will executed
Oy single woman shall be deemed re-
Voked by her subsequent marriage :" This
law was not known to her and not aGverted
to by her counselor called in by her to give
his advice and prepare the instrument. 1t
was certainly not thought by her that such
\ result would follow. She did not mean
it to he revoked by her marriage On the
contrary both she and her counsel meant
to make disposition which would be
etfectua! after the marriage which was to
be celebrated within twcnty-fOur hours
after that paper was executed. The exc
cution Of the will ut the time and under
the circumstances was plain mistake.
Had it been postponed only 4 few hours
until after the marriage ceremony was per-
formed it would have been valid and
et1ectual disposition OF her property.
Third. There was contract made by John
A.Mullen, the intended husband, at or about
the time the instrument was executed, by
which she was to have the power ''tn
dispose of her fortune by will or otherwise
any way she pleased" That this was the
contract is established by the most concln
sive testimony confirmed by the admission
of the husband afterward, who put his re-
fusal tO give effect to it, n,t:: ::on the ground
that he had not freely and fairly SO agreed,
but that because it was not in writing he
was not bound by it. In this he was mis-
taken, for parOl ante-nuptial Contract suc,
:s this, being in consideration of marriage.
which is valuable one. is unques' ion;,bly
binding on the parties. (Gackenbac!l v.
Brown, W. and s., 546.) That he knew
and considered ut the time the instrument
in question was executed that it WAS in
tended to carry out and give effect to his
ante-nuptial agreement is proved by the
clearest aud most convincing evidence.
If, as it has been earnestly contenleti.
the decree OF the court below must be
affirmed and the entire personal estate ol
the decedent awarded to the appellee,
then it is not to be disputed that there
must be some palpablc detect in equitable
jurisdiction in this commonwealth, to ren-
der necessary So gross an injustice. so
revolving 20 the moral sense OF What is
right and wrong. We think, however.
and well settled principles Of equity.
often recognized and applied by our
courts which prevent such Il result. Cne
of these principles is. that whatever Il cI,an-
cellOr on the facts Of case would have de
creed to be done the courts will consider
as having actually been done. Another
principle is, that wherever Il person has the
legal right to dispose of property and
means to do SO, the form Of the instrument
adopted for the purpose. if ut law iuetfect-
ual, will be tlisresarded, and it will l,o
formed SD As to be made et1ectual.
Suppose, then, that at the time the paper
of February 8, 1876, was executed by
Elizabeth NJ. Dunn, she had filed n bill in
equity setting forth the ante-nuptial con
IT, ct made by John A. Mullen and the
marriage about to be sOlemnized, and pray
ing that it might be carried into execu-
tiOn by some instrument OF writing to be
signed by him, what would have been the
decree OF the court? Surely upon the un-
disputed facts the prayer OF the bill would
have been granted and the decree would
have been either that the husband and
wife should join in 4 conveyance to trus
tees i'll trust for tie separate use .: the
wife with full power in her to dispose of
the same in her life time by sale or gift,
and after her death by will in writing, or
any writing in the nature Of a last will anu
testament. Such is the ordinary form of
such powers in marriage settlements IL
the complainant was willing the court
might decree simply that the husband
himself should execute = declaration Of
trust to the same effect. Nothing is bet
ter settled than that court OF equity in
decrceing the specific performance Of mar
riaSe articles will make such a decree as
will give full effect to the intention of the
parties without regard to the legal con
structiOn Of the words in them. Thus, if
by the words according to their legal CON-
structiOn, q fee tail would be vested in the
parties or either of them, u strict settle
mcnt will be decreed to the husband or
husband and wife for life with remainder
to the children of the marriage, success
lively in tail, according to the most ap-
proved form Of deeds of marriage settle
ments. e Story Eq. Jur. Sect. 9S5 and
there cited.) Now, if We are ~
consider as having actually been done what
a chancellor would have decrccd to be done,
then we have at the time of the execution
Of the paper Of February 8. 1876, either :,
to a trustee or a declaration
executed by the husband to the same cf-
feet. Surely then under such a decara-
ton or deed of settlement this paper.
though Intellectual as Il will under the
statute, was still writing in the nature OF
:, last will and testament, clause intro
duced into such powers for the very pur-
pose of providing against mere technical
objections which would prevent the i'll
strument from being admitted to probate
as will. 1t was disposition Of property
to take effect at death if not revoked by
the party during life. That is a writing
in the nature of a last will and testa-
ment. This paper was so intended be-
yond all question. It was executed
under and in pursuance Of the con.
tract on the eve of the marriage-in-
deed it might almost be said to have been
in the consideration Of equity cotempora-
neous with the ceremOny-executed for
the express purpose with the knowledge
and consent of John A. Mullen of having
just the effect here stated. 1t makes q