Washington Law Review
May a Man Provide in His Will That His Wife Shall Not Take Under It Unless She Shall Survive Him for a Period of Forty-Eight Hours?
The advantages are apparent that might be gained by a man including in his will the provision that his wife should not take under it unless she should survive him for a period of, say, forty-eight hours. As an example, there is the famous French case of Fair v. Vanderbilt, in which both spouses were killed, the wife surviving the husband fifty-nine seconds, and of which a learned author once remarked, "It was the first time in history that a man and his wife were ever killed while riding together." No provision had been made in contemplation of either co-accidental or incidental death. These two vast estates became merged into one. How much more equitable it would have beeri to let the estates remain in the respective families. Due to this sudden and unexpected death, one family was enriched, to the detriment of the other. Who can say this was a just enrichment, using this principle as a comparison, and that such a distribution was any other than a mere interpretation of words in a will or statute? Every practicing attorney knows of some local application of this distribution in his community. Because of the risk of automobile or similar accident, each spouse may advantageously incorporate a clause in his will providing for just such contingencies. Would such a will, then, be permissible in Washington? Objections may be raised that the statutes as they now exist are mandatory, in a way that would prevent such a will, that such a provision would leave the title to devised property nowhere during the interim, that the court would declare an intestacy. It may even be urged that the same result may be effected through some established form, such a life estate.
Stephen D. Brown,
Notes and Comments,
May a Man Provide in His Will That His Wife Shall Not Take Under It Unless She Shall Survive Him for a Period of Forty-Eight Hours?,
1 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol1/iss2/7