Two is One Too Many

There are some good arguments against bigamy, one of which is that it can wreak havoc with estate planning.

When Arthur Smalley died on July 14, 1928, in the County of Lancaster, England, his Last Will and Testament dated March 4, 1925, provided “I give devise and bequeath unto my wife Eliza Ann Smalley all my possessions absolutely.”

Mr. Smalley’s widow Mary Ann Smalley claimed her rightful inheritance. So did his widow Eliza Ann Mercer.

Mr. Smalley married Mary Ann Pollard in 1899. They had four children together. In 1910, Mr. Smalley left his wife. He continued to give her weekly support. They never divorced.

Arthur Smalley met Eliza Ann Mercer, and he later went through a marriage ceremony with her on May 2, 1924. They lived together as husband and wife. After he made his will, he either gave it to her or left it where she could find it.

The case was first heard by Mr. Justice Eve of the Chancery Division. Mr. Justice Eve ruled that because Mary Ann Smalley was Mr. Smalley’s lawful wife, she was entitled to receive his estate under his will. The Judge said that the name “Eliza” should be rejected as a misdescription.

Eliza Ann Mercer appealed.

The English Court of Appeal, in In Re Smalley, [1929] 2 Ch. 112, agreed with Eliza Ann Mercer, and overturned the judgment of Mr. Justice Eve. The Court of Appeal considered the surrounding circumstances at the time Mr. Smalley made his will, and found that he intended Eliza Ann Mercer to receive his estate. Although his marriage to Eliza Ann Mercer was not a legal one, he referred to her as his wife. Eliza Ann Mercer was reputed in their neighborhood to be his wife. He appointed as executors coworkers who knew Eliza Ann Mercer as Mr. Smalley’s wife. He left the will with Eliza Ann Mercer, or in a place where she had access to it. The court did not interpret the word “wife” in a strict sense to mean Mr. Smalley’s legal wife. Instead, the court found that Mr. Smalley used the word “wife” in a secondary sense to mean the person with whom he was living.

Eliza Ann Mercer received all of Arthur Smalley’s possession. Mary Ann Smalley got none.

The English Court of Appeal’s decision illustrates the proper approach to interpreting wills: the court should consider the circumstances of the person making the will at the time it was made, and determine what the maker of the will meant. The same word may have different meanings in different contexts.