In re Kaufman's Will — 16 N.Y.S. 113

Majority

p. 113

In re Kaufman’s Will.

(Supreme Court, General Term, First Department.

October 16, 1891.)

Headnote

Wills—Revocation by Marriage—Unmarried Woman.

A widow is an unmarried woman, within 2 Rev. St. p. 64, § 44, (8th Ed. p. 2548,) which provides that “a will executed by an unmarried woman shall be deemed revoked by her subsequent marriage. ”

Appeal from surrogate’s court, New York county.

p. 114

Proceedings for the probate of the last will and testament of Virginia S. Kaufman, deceased. From a decree of the surrogate refusing probate of the will the executor, Adolph L. Sanger, appeals.

Argued before Van Brunt, P. J., and Daniels and Ingraham, JJ.

M. S. & I. S. Isaacs, (Louis Marshall and Adolph L. Sanger, of counsel,) for appellant. Wise & Lichtenstein, (Morris S. Wise, of counsel,) for respondent.

On the 5th of March, 1886, the testatrix was the widow of one David Dillon, and on that- day duly executed her last will and tes toment. On the 25th of January, 1888, the said testatrix married one Jack son S. Kaufman, and in December, 1890, died, leaving her surviving her husband, the said Jackson S. Kaufman, and one Mildred Dillon, a daughter by her former marriage. The will above mentioned having been offered for probate, such probate was refused by the surrogate, upon the ground that the marriage of the testatrix subsequent to the execution of the will revokes the same, and from the decree thereupon entered this appeal is taken. Section 44, p. 64, 2 Rev. St., is as follows: “A will executed by an unmarried woman shall be deemed revoked by her subsequent marriage.” It is claimed by the appellant that the testatrix, being a widow at the time she executed this will, was not an unmarried woman upon the theory that the statute meant a woman who had never been married. Although the counsel both for appellant and respondent have devoted much time to the discussion of this proposition, we do not see that there is any room for argument, as a widow is certainly not a married woman, and, if she is not, the statute applies. None of the authorities cited have the slightest application to such a condition of affairs, and the court cannot either amend or.repeal the statute because of legislation in respect to the status of married women which has come into existence since the passage of the Revised Statutes. The decree should be affirmed, with costs.. All concur.