131 P. 975 | Ariz. | 1913
Peter Anderson and Isabell Anderson, husband and wife, on the twenty-fifth day of August, 1902, being the owners of certain community property and having no issue, made and executed an instrument, bearing soine of the characteristics of a deed, but clearly indicating by its recitals a testamentary purpose, inasmuch as it was to have no effect until after the death of the testators. Counsel for both parties unite in affirming its testamentary character and we think correctly so. It is reciprocal in its terms in that each purports to give all his interest in the common property to the other, effective upon his death, with remainder over after the survivor’s death to the nearest heirs at law of both the testators. It is a joint and mutual will. Isabell Anderson died in 1903 and Peter Anderson died in 1911. The instrument was not probated as the will of Isabell Anderson, but after the death of Peter Anderson, the appellant, as one of the legatees of the will, asked that it be admitted to probate as the last will and testament of Peter Anderson. It was allowed by the probate court, but on appeal to the district court it was rejected.
Peter Anderson, in September, 1908, married the appellee, Ruth W. Anderson, and it is her contention that the will, even if valid, was revoked by such marriage.
Paragraph 4216, Revised Statutes of 1901, provides that no will “shall be revoked except by a subsequent will, codicil or declaration in writing, executed with like formalities, or by the testator destroying, canceling or obliterating the same or causing it to be done in his presence; provided, that if after making a will the testator marries, and the wife survive the testator, the will shall be revoked unless provisions has [have] been made for her by marriage contract, or unless she is provided for in the will, or in such way mentioned therein as to show an intention not to revoke such provisions and no other evidence to rebut the presumption of revocation must be received. ' ’
In this case the marriage subsequent to executing the will is admitted. There is no evidence that provision was made for appellee in a marriage contract. She is not provided for in the will, nor mentioned therein. The language of the statute is plain and unambiguous and not susceptible of an interpretation different than it clearly imports. A marriage, the wife surviving, ipso facto revokes the prior will unless the wife is mentioned or provided for as stated. The South Dakota statute is the same as ours and in Re Estate of Larsen, 18 S. D. 335, 100 N. W. 738, 5 Ann. Cas. 794, the facts were that Larsen had made a will during coverture. His wife dying he married again. That court said: “While conceding that Niels Larsen married Christina, his surviving wife, after making the will in which her name is not mentioned, either as a devisee or for the purpose of showing the intention not. to make her such, and the nonexistence of any provision made
The order of the lower court refusing the purported will to probate was correct and is affirmed.
FRANKLIN, C. J., and CUNNINGHAM, J., concur.
Application for rehearing denied.
NOTE.—As to joint and mutual wills, see note in 136 Am. St. Eep. 593.
As to revocation of wills by marriage of testator, see note in 28 Am. St. Eep. 358.