St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1893-01-15
MAKING OF WILLS.
The Question of Whether a Mar
ried Woman Can Make a VIII.

ried Woman Can Make a Will.
To the Editor of the st. Paul Globe.
ST. PAUL, Mimi, Jan. 12.-The last
Legislature overlooked the repeal by the
Probate Code General Laws 1889, chap.
O. of the express statutory provlS ion
4under which married woman in Min
nesota could make a will. indeed, it
seems to have escaped the attention of
the legal profession generally that this
power was in any way affected by the
adoption of the so-called probate code.
In the absence of a statute couferring
such power upon married woman she
cannot make will. The statute of
wills in force when the probate code
was adopted provides that ''any married
woman may devise and dispose of any
real OF personal property held by her,
or to which she is entitled in her own
writing, and may alter and revoke the
same in like manner as if she was I'M
married." (See General Statutes Of 1878,
chap. AZ, sec. ~
This provision is found in substan-
TALLY the same language in Wisconsin
Revised Statutes of 1S49, and in all of
the reViSlOnS of our own statutes (See
Revised Statutes of 1851, C. SO, sec. l.;
Compiled Statutes 1858, C. 40, sec. l :;
General Statutes 1866, C. AZ, sec. y. with
the additional proyiso that the husband
must in writing consent to any such
will or any alteration or revocation of
the same. In 1869 General Laws 1869. C.
81, sec y this proviso as to the assent
OF the husband was repealed, but by the
act Of 1876 General Laws 1876, c. 81,
sec. 81, regulating the descent of real
property, a partial restriction was by
devise. The entire chapter in General
Wills" was expressly repealed by the
Probate Code (see General Laws 1889,
C. 46, sec. 1922, and re-enacted in part in
the code as Secs. 16, etc. lii the code.
sec. 1G. WHO may devise lands" sec.1 of
C. AZ Gen. st. '7S) relating to real prop
erty, and section 4, relating to personal
property, are consolidated; the words
"every person" are changed to ''any
person." and the provision empower
ing married woman to make will
entirely omitted. From the fact that in
reenacting the law of descent with GER
tain changes the provision in the act Of
1876 relating to the assent of husband
or wife to any testamentaryn disposition
Of property by the other was not
changed, (see Probate Code, sec. 63, Ga,
65) it would seem that this omission in
section 16 of the code was uninten-
of 1878 &c. 6Y entitled married
Women" enacted March 5. 1869, con-
fers no power upon a married woman
to make will; but chapter 60 of Gen.
St., 1866, which was repealed by this
act, did expressly empower her to .'de-
wise or convey her separate estate (see
sec. 81. Since the adoption of the Pro-
bate Code April "a, 1889, no statute ex
pressly empowering a married woman
to make will has been in force in this
state, and [ have been unable to find
any statute from the language of which
such a power would necessarily be i'm
piled. In 1887 General Laws, CHI. 200
the legislature passed IAN act TO declare.
and protest the legal personal identity
Of married WOmeD," but this act is eX
ceedlngly general in its terms, and
what was sought to be accomplished. OF
met and vanquiShed, by its passage
seems difficult to conjecture. Our SUI
preme court has held that it does not
confer any power on married woman
to enter into valid contracts with re-
spect to, or to convey, her real property,
independently of her husband, and, by
parity OF reasoning, it cannot alter or
add to the present statute Of wills.
Nor does section 316 of the Probate
Code, which provides that the word
husband, when used therein, Shall be
construed to apply also to wife, cure
the omission. The courts would I'M
doubtedly conStrue the code as literally
as possible in order to sustain will
made by married woman, but it would
certainly be safer for the Legislature to
re-enact similar clause to the one that
so long stood upon the statute book,
ana thus put the matter beyond ques-
ton. ROBERTSON HOWARD.