Fellows v. Allen. Morton v. Onion, 45 Vt. 145. The incapacity of a married woman to make a will arose at common law from her husband's marital rights in the control of her property. When those rights did not exist, or were excluded, the incapacity ceased, and the wife could make a valid will. Cutler v. Butler, supra; Miller v. Phillips, 9 R. I. 143; Carey's Estate, 49 Vt. 246. By Rev. Stat., ch. 149, § 3, it was provided that a married woman, when entitled to hold property in her own right and to her separate use, might dispose of it by will as if she were sole and unmarried. By the statute of 1845 a married woman was enabled to dispose of her real estate by will, subject to any rights acquired by the husband by the marriage contract; and in 1846 it was enacted by statute that married women should have the same rights as they would if unmarried as to all property secured to their separate use by a written antenuptial contract, and all property conveyed or devised to them for their separate use after marriage. Married women thereby became entitled to dispose of property so held by will. By the laws of 1860, ch. 2342, the testamentary capacity of married women was extended so as to embrace all her estate, subject only to the husband's right of curtesy and distribution. The statutes on the subject have remained substantially without change to the present time. The incapacity of a married woman to make a will having been removed by these statutes, and she having become fully empowered to dispose of her own property in that way, no reason remains why her will made before marriage should, by mere force of the marriage contract, be revoked. If revoked, the testatrix could make another like it after marriage. The law does not operate to destroy and restore the same thing by the same breath. The testamentary incapacity of the married woman destroyed her premarital testament. The law having removed the incapacity which operated as the destroying power, the will made before marriage remains unrevoked by that change in the testator's life, Decree affirmed. NOTE BY THE REPORTER.- See 22 Am. Rep. 164. To the same effect is Webb v. Jones, 36 N. J. Eq. 163. The chancellor said: “But it is insisted that the marriage revoked the will, and that therefore the law casts the title to the property which did not come to the hands of the trustees upon him. I am of opinion that the marriage did not revoke the will. The reason why at the common law the marriage of a woman was a revocation of her will, was that she could not, as a married woman, make a will, and therefore wills being in their nature VOL. XLIX-42 Fellows v. Allen. ambulatory until the testator's death, the law deprived her will made before marriage of all validity. And though a wife might, in the absence of an enabling provision in the marriage settlement, make a valid will of her separate estate, without her husband's consent, and therefore in such case the reason for the rule ceased, yet the rule was held to be applicable under such circumstances also. Where however a woman after the execution of a marriage settlement giving her a power to dispose of her property by will, made a will before marriage in execution of the power, it was held not to have been revoked by the marriage. Logan v. Bell, 1 C. B. 872. But by our law a wife loses no power to make a will by her marriage, except so far as the interest which the law gives her husband in her real property is concerned. That her will cannot affect. But as to her personal property, and her real property too, (subject to her husband's rights therein) she has as full power to make a will as she had when she was unmarried. In other words, her right to make a will continues as before, notwithstanding her marriage. The reason therefore (her disability) for holding marriage to be a revocation no longer exists, and therefore the rule itself should no longer exist. In this case the will has been admitted to probate, and therefore the executor has a right to all the testatrix's personal property, for the letters testamentary are general. In Ryno v. Ryno, 27 N. J. Eq. 522, where a married woman's will had been admitted to probate, and letters of administration were afterward issued to her husband, it was held that the fund must be paid over to the executor to be administered according to law, because of the fact that the will had been admitted to probate. In Douglass v. Cooper, 3 M. & K. 378, where a woman, having a power of testamentary appointment by her marriage settlement, made a will after marriage, and her husband dying, she married again, it was urged that her marriage after executing the will was a revocation of the will, The will had been admitted to probate in the ecclesiastical court. Sir JOHN LEACH, M. R., though of opinion that by the subsequent marriage the will was revoked, yet held it valid (it having been duly executed), because it had been admitted to probate. Having been admitted to probate, the will cannot be declared void here on the ground that the marriage revoked it; and it may be added, it appears to have been executed with the formalities required by the marriage settlement. It must be accepted as the true will of Mrs. Jones, and her property must be administered under it. In Brown v. Clark, 77 N. Y. 369, it was held that the statute declaring the will of an unmarried woman to be revoked by her subsequent marriage is not abrogated by the subsequent statutes enabling married women to make wills, and thus taking away the reason of the common-law rule. The court said: "We concur in the conclusion reached by the surrogate that the will was revoked by the subsequent marriage of the testatrix. It was the rule of the common law that the marriage of a woman operated as an absolute revocation of her prior will. Force and Hembley's case, 4 Co. 61. The reason of the rule is stated by Lord Chancellor THURLOW in Hodsden v. Lloyd, 2 Bro. Ch. 534. He says: 'It is contrary to the nature of the instrument which must be ambulatory during the life of the testatrix; and as by the marriage she disables herself from making any other will, this instrument ceases to be of that sort, State v. Dame. and must be void.' The rule that the marriage of a feme sole revoked her will was made a part of the statute law of this State by the Revised Statutes. 2 R. S. 64, § 44. The language of the statute, that the will of an unmarried woman shall be deemed revoked by her subsequent marriage, is the declaration of an absolute rule. The statute does not make the marriage a presumptive revocation which may be rebutted by proof of a contrary intention, but makes it operate eo instanti as a revocation. 4 Kent Com. 528. It is claimed by the contestants that the testamentary capacity conferred upon married women by the recent statutes in this State takes away the reason of the rule of the common law, and that upon the maxim cessante ratione legis, cessat lex ipsa, the rule should be deemed to be abrogated. Upon the same ground it might have been urged at common law that the marriage of a feme sole should only be deemed a revocation or suspension of her prior will during the marriage, and that when the woman's testamentary capacity was restored by the death of her husband, leaving her surviving, the will should be revived; but the contrary was well settled. Force and Hembley's case; 1 Jarm. 106; 4 Kent Com. 598. But the courts cannot dispense with a statutory rule because it may appear that the policy upon which it was established has ceased. The married women acts confer testamentary capacity upon married women, but they do not undertake to interfere with or abrogate the statute prescribing the effect of marriage as a revocation. It was quite consistent that the legislature should have intended to leave the statute of 1830 in force, although the new statutes took away the reason upon which it was based. The legisla ture may have deemed it proper to continue it for the reason that the new relation created by the marriage would be likely to induce a change of testamentary intention, and that a disposition by a married woman of her property by will should depend upon a new testamentary act after the marriage.” STATE V. DAME. (60 N. H. 479.) Criminal law-disorderly house-requisites of indictment. In an indictment for keeping a disorderly house it is unnecessary to allege the character of the persons frequenting it. NONVICTION of keeping a disorderly house. CONY states the case. Copeland & Edgerly, for defendant. The attorney-general and solicitor, for State. The opinion STANLEY, J. The validity of the defendant's exception depends on whether there was a variance between the allegations in the State v. Dame. indictment and the proof. The indictment was for keeping a disorderly house; and it contained an averment that "in the said house certain evil disposed persons, as well men as women, of evil name, fame and conversation, to come together, did cause and procure, and the said persons in the said house, at unlawful times, as well in the night as in the day, on the days and times aforesaid, there to be and remain, drinking, tippling, cursing, swearing, quarrelling, and otherwise misbehaving themselves unlawfully, did permit and suffer." If this averment was unnecessary, the request was properly refused. It is necessary to prove matter of description only when the averment, of which the descriptive matter forms a part, is material. Bish. Cr. Proc., §§ 484, 487; State v. Copp, 15 N. H. 212; State v. Bailey, 31 id. 521; Rex v. May, 1 Doug. 193; Rex v. Pippett, 1 T. R. 235. Rejecting the averment recited, the indictment charges, with proper allegations of time and place, the keeping of a disorderly house, to the great injury and common nuisance of all the peaceable citizens of the State there residing, inhabiting and passing, contrary to the statute, etc. The offense is keeping a disorderly house. The allegation rejected is of facts which go to show that the general charge is well founded, or in other words, a statement of the evidence upon which the charge is based. Hawkins says that "an indictment charging a man with a nuisance in respect of a fact which is lawful in itself, as the erecting of an inn, etc., and only becomes unlawful from the particular circumstances, is insufficient, unless it set forth some circumstances which make it unlawful in its own nature, as keeping a bawdy house." 2 Hawk. P. C. (ed. 1824) 311. It is no more necessary to allege the facts which go to show it to be a disorderly house, than it is to allege who are disturbed thereby, and this it is said is unnecessary. King v. People, 83 N. Y. 587. In the case of a common scold it is not necessary to prove the expressions used. It is sufficient to prove generally that she is always scolding. J'Anson v. Stuart, 1 T. R. 748, 754; Rex v. Gill, Russ. & R. 431; Clark v. Periam, 2 Atk. 339; 1 Russ. Cr. 436; Rex v. Rogier, 1 B. & C. 272; Rex v. Dixon, 10 Mod. 326; Rex v. Mason, 1 Leach (4th ed.), 487, 491, 493; 2 Hawk. P. C., ch. 25, § 59; Dav. Prec. Ind. 140, 198; State v. Bailey, 21 N. H. 343; State v. Pierce, 43 id. 376; State v. Dowers, 45 id. 543, 545. The indictment is sufficient if it set out so much of fact as to make the criminal nature of what is charged against Snow v. Perkins. the defendant appear. If the thing against which the indictment is aimed is not a nuisance in itself, but becomes so only by reason of particular circumstances, this special matter must be shown (2 Bish. C. L., § 813); but the rule is otherwise if the thing is in itself a nuisance. The averment referred to might have been rejected as surplusage. It was therefore not necessary to prove it. Judgment on the verdict. CLARK, J., did not sit; the others concurred. SNOW V. PERKINS. (60 N. H. 493.) Real property-manure, when not. Manure not made in the course of husbandry, but made in the business of raising hogs, not fed upon the products of the land, and the manure being mixed with loam drawn from other lands, is no part of the realty.* ROVER for manure. The head-note shows the facts. TROVER Carter & Nason, for plaintiffs. T. J. Smith, for defendant. CLARK, J. Manure made in the ordinary course of husbandry, in the absence of any special contract or custom, is regarded as a part of the realty, and passes by a conveyance of the land without reservation. Sawyer v. Twiss, 26 N. H. 345; Conner v. Coffin, 22 id. 538. But this rule does not apply to manure made in liverystables, or in buildings unconnected with agricultural property, and out of the course of husbandry. Plumer v. Plumer, 30 N. H. 558; Needham v. Allison, 24 id. 355. In such cases the manure is not considered an incident to the land, and does not pass by a conveyance of it. In the present case, the manure was not made in the ordinary course of husbandry. The business of the plaintiffs was entirely disconnected from the land. The hogs were not fed upon the products of the farm. The loam, which constituted the principal ingredient of the manure, was purchased by the *See Chase v. Wingate (68 Me. 204), 28 Am. Rep. 36. |