Will, Revocation by marriage. Frauds, Statute of.
An alleged will in favor of the person who after its execution became the wife and widow of the alleged testator, and who was induced to marry him by his oral promise to make a will in her favor, is revoked under R. L. c. 135, § 9, by such subsequent marriage, if it does not appear from the alleged will that it was made in contemplation of such marriage.
Such widow cannot maintain a suit in equity to restrain an heir at law of her husband from contesting the validity of the alleged will on the ground of the subsequent marriage, because under R. L. c. 74, § 1, cl. 3, and § 6 no suit can be based on an agreement in consideration of marriage without a memorandum in writing and an agreement to make a will must be in writing.
RUGG, C. J.
The material facts are that Albert Barlow, now deceased, in May, 1916, orally proposed marriage to the appellant, then Helen M. Burke, now his widow, promising that if she would marry him "he would make over everything to" her before the marriage, and that if he should die before marriage she would "be taken care of," and if he died after marriage she would "have everything." She accepted his proposal according to its terms. Pursuant to the agreement the deceased executed a will on May 29, 1916, whereby, after making two legacies of $5 each, the residue of his property was given to Helen M. Burke. This will was mailed to her by the deceased on June 1, 1916, and she retained it until after his death in July, 1918. The marriage, which took place in August, 1916, was in consideration of his promise to make a will in her favor.
It is provided by R. L. c. 135, § 9, that "The marriage of a person shall act as a revocation of a will made by him previous to such marriage, unless it appears from the will that it was made in contemplation of such marriage." The words of that statute are precisely applicable to the facts of the case at bar. The will conveys no indication whatever by any of its words that it was made in contemplation of marriage and was intended by the testator to be operative notwithstanding his marriage. The statute prohibits the elucidation of the will by anything outside its four corners. The case at bar is indistinguishable from Ingersoll v. Hopkins, 170 Mass. 401, by the authority of which it is governed. The marriage of the deceased revoked his will.
The suit in equity, setting forth the agreement and performance by the plaintiff and seeking to restrain the heirs at law from contesting the validity of the will on the ground of the subsequent marriage, sets out no ground for relief in equity. An agreement to make a will must be in writing in order to be valid. R. L. c. 74, § 6. The agreement in the case at bar was not in writing and hence no action can be maintained on it. Emery v. Burbank, 163 Mass. 326. Runyan v. Van Iderstine, 230 Mass. 428.
An agreement in consideration of marriage also is unenforceable unless in writing. R. L. c. 74, § 1, cl. 3. The plaintiff must fail on this ground. Chase v. Fitz, 132 Mass. 359. White v. Bigelow, 154 Mass. 593.
Decree of Probate Court affirmed. Decree dismissing bill affirmed.