325 Mass. 57 | Mass. | 1949
This petition by Roslyn S. Hertrais, formerly Roslyn S. Moore, is for the probate of an instrument executed May 5, 1943, as the will of her former husband, Robert D. Moore, whose only heirs at law and next of kin are their two minor sons, Geoffrey D. Moore and Frank L. Moore, 2d. A guardian ad litem was appointed to represent the interest of the minors. The case was heard on agreed facts, and the petitioner appealed from a decree disallowing the will. The decree recited that the sole beneficiary under the instrument is the petitioner, who at the time of its execution was the wife of Robert D. Moore; that on December 10, 1946, a decree nisi for divorce was entered on her libel against him; that the divorce decree became absolute on June 10, 1947; that “there was a property settlement agreed upon” between them at the time of the divorce; that on July 7, 1948, she married Wesson S. Hertrais; and that on July 23, 1948, Robert D. Moore died. Two of the agreed facts are that the will was properly executed, and that on the date of execution Robert D. Moore was of testamentary capacity. Thus, it would seem that the will was disallowed, as the parties assume in this court, on the ground that it had been revoked “by subsequent changes in the condition or circumstances of the testator from which a revocation is implied by law.” G. L. (Ter. Ed.) c. 191, § 8.
This statute in substance has long been part of our law. Rev. Sts. c. 62, § 9. Gen. Sts. c. 92, § 11. Pub. Sts. c. 127, § 8. R. L. c. 135, § 8. The reference to implied revocation was first introduced by Rev. Sts. c. 62, § 9,
In Swan v. Hammond, 138 Mass. 45, it was held that under § 8, then in the form of Pub. Sts. c. 127, § 8, the will of a feme sole was revoked by her subsequent marriage, as at common law, although the usually stated reason for the rule, that marriage took away her testamentary capacity and destroyed the ambulatory nature of her will, no longer applied after the passage of statutes allowing her to make a will. In rejecting a contention that the rule should be the same as in the case of a man, namely, marriage and the birth of a child, the court observed (page 46) that it
In Warner v. Beach, 4 Gray, 162, it was held that revocation of a will could not be implied from the birth to the testator of a child contemplated in the will, from the deaths of the testator’s wife and one of his children, from the testator’s insanity for more than forty years from soon after making his will until his death, and from a large increase in the value of his real estate, which greatly changed the proportion between the specific legacies given to some children and the shares of other children made residuary legatees. It was said by the court, speaking through Shaw, C.J. (page 163): “But an entire revocation by implication of law is limited to a very small number of cases.” The only examples referred to were the marriage of a feme sole and marriage and the birth of a child in the case of a man.
In Bennett v. Brown, 222 Mass. 283, it was held, on the authority of Warner v. Beach, that the death of the wife
In Meyerovitz v. Jacobovitz, 263 Mass. 47, 50, it was said of the implied revocation clause, “Revocation of that nature is limited to a very small number of cases at common law, as for example subsequent marriage and birth of children without provision in the will to cover such events.”
The foregoing are all the cases relating to the present question that have been decided in this Commonwealth. It is not without significance that among them there is not one dealing with the contention that a revocation of a will may be implied in law from the divorce of a testator, whether with or without a property settlement, and whether or not followed by the remarriage of his divorced spouse. Having in mind the background and origin of G. L. (Ter. Ed.) c. 191, § 8, we are of opinion that the subsequent changes referred to are confined to the two mentioned by the commissioners in 1834, namely, the marriage of a woman and the marriage of a man and the birth of a child. Such, indeed, was the stated basis of the decision in Swan v. Hammond, 138 Mass. 45, 47. The Legislature has twice reenacted the statute since that decision. “It is a well settled rule of statutory interpretation that, when a statute after having been construed by the courts is reenacted without material change, the Legislature are presumed to have adopted the judicial construction put upon it.” Nichols v. Vaughan, 217 Mass. 548, 551. Kelly v. Morrison, 231 Mass. 574, 577. Dolan v. Commonwealth, 304 Mass. 325, 332-333.
We realize the effect on § 8, as we have construed it, of the passage of St. 1892, c. 118, now found in G. L. (Ter. Ed.) c. 191, § 9, and now reading: “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 thereof. . . .” This statute appears to have been prompted by the statements in Swan v. Hammond, 138 Mass. 45, 46, supra, and clearly covers
We need not consider the varying statutes and the division of opinion among the decisions of other States dealing with divorce accompanied by a property settlement as a revocation. See Page on Wills (3d ed.) § 522; Thompson on Wills (3d ed.) § 176; 25 A. L. R 49; 37 A. L. R 312; 42 A. L. R 1289; 24 Ky. L. J. 1. Nor do we reach the point whether the conclusion of the court below that there was a property settlement is a proper inference from the agreed facts.
The result we attain, which is compelled, we think, by our statutes and our decisions, seems to us to be the desirable one. It would be a serious matter to invalidate a will because of a supposed change in intention on the part of a testator not given formal expression by him. Our conclusion avoids the difficulties faced in those jurisdictions where the statutes permit the adoption of a contrary view, where the revocation is not presumptive but absolute, and evidence, not amounting to a republication, cannot be received of a testator’s actual intent to continue his will in force, and where the prevailing standard seems to be what a reasonable testator would be deemed to have intended. See Wirth v. Wirth, 149 Mich. 687; In re McGraw’s Estate,
Decree reversed.
This section in its entirety reads: “No will shall be revoked except by burning, tearing, cancelling or obliterating it with the intention of revoking it, by the testator himself or by a person in bis presence and by his direction; or by some other writing signed, attested and subscribed in the same manner as a will; or by subsequent changes in the condition or circumstances of the testator from which a revocation is implied by law.”
This section in its entirety read: “No will shall be revoked, unless by burning, tearing, cancelling or obliterating the same, with the intention of revoking it, by the testator himself, or by some person in his presence and by his direction; or by some other will or codicil in writing, executed as pre
See cases collected in Page on Wills (3d ed.) §§ 515, 516.