In re the Will of Kaufman — 40 N.Y. St. Rep. 550

Majority

p. 550

In the Matter of the Will of Virginia S. Kaufman (formerly Dillon), Deceased.

(Supreme Court, General Term, First Department,

Filed October 16, 1891.)

Headnote

Will—Widow—Revoked by re-marbiage.

A will made by a widow is revoked by her re-marriage. She is an unmarried woman within the meaning of the provision of 2 Revised Statutes, 64, § 44.

Appeal from decree of the surrogate refusing probate of will.

L. Marshall, for app’lt; M. S. Wise, for resp’t.

On the 5tli of March, 1886, the testatrix was the widow of one David Dillon, and on that day duly executed her last will and testament. On the 25th of January, 1888, the said testatrix married one Jackson 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, 2 Revised Statutes, p. 64, 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,

p. 551

,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.

Daniels and Ingraham, JJ., concur.