Jones's Estate

211 Pa. 364 | Pa. | 1905

Lead Opinion

Opinion by

Mb. Justice Potteb,

The questions presented by this appeal, as stated by the appellant, are:

1. Does a legacy, in these words, “ one third to my wife, Mary Brown Jones,” lapse, when the wife subsequent to the date of the will, at her own instance, obtains a divorce a vinculo matrimonii ?

2. Is a bequest “to my wife Mary Bi’own Jones ” revoked by implication, by reason of absolute divorce ?

We take up these questions in order.

What is there in the facts of this case to support the claim that the legacy has lapsed ? The person named as legatee did not die in the lifetime of the testator, nor did any other event occur in the lifetime of the testator, which under the language of the will, would render the testamentary gift inoperative. The donee survived the tegtator and is alive, and has both capacity and willingness to take under the will. But it is suggested in the argument, that while not physically dead, the donee by her own act in obtaining the decree of divorce, ended the marital relation, as absolutely as death would have done. This consequence did follow the divorce, in so far as the duties, rights and claims accruing to her by reason of the marriage are concerned. With respect to the determination of these rights, and these alone, is divorce the equivalent of death. The decree in divorce took away only what the law gave to her when the marriage was contracted. This was the right to support, and to dower in his estate if she survived him. After the entry of the decree, the testator was no longer bound to provide for her, and she had no further claim upon his estate. What the law gave, it took away; nothing more.

The beneficiary is not here claiming anything which accrued to her in pursuance of her marriage. She is here only as a legatee, and is asking for that only which the testator gave to her of his free grace, and as a matter of bounty. That which he gave to her in his will, was his own, to give or to withhold as he saw fit. A bequest needs no consideration to support it. As a legatee she stands upon the same footing as any other individual, and her relation to the testator has nothing to do with the case, unless he chose to make it an element, in the bestowal of the gift. Did he do so ? The provision in the will is as follows : “ I direct that my funeral expenses and all debts be promptly paid, and that my estate be divided as follows: One third to my wife, Mary Brown Jones, and the balance to my son, Thomas Mifflin Jones.” The will was dated April 24,1899, and Mary Brown Jones was then the wife of the testator. On February 6,1900, the said Mary Brown Jones began proceedings in divorce, and the decree was granted to her on September 19, 1900. Thomas M. Jones, Jr., the testator, lived about one year and eight months after the divorce was granted, and died on May 17, 1902. Mary Brown Jones did not remarry during the lifetime of the said Thomas M. Jones, Jr., but she did marry about six months after his death. It will be noticed that the gift was to “My wife, Mary Brown Jones,” without any conditions or limitations. The testator gives the one third of his estate to a particular person, naming her, and further identifying her by the statement that she is his wife that is in substance wbat he says. He makes no stipulation that she shall remain his wife, or be such at the time of his death. We are clear that such use of the word “ wife ” as is here made, is descriptive only, and does not imply any continuing condition.

“ The mere fact that a gift is made to a named legatee in a certain character, as for instance to my wife A, does not avoid the legacy, if the legatee does not happen to fill the character : ” Theobald on Wills (5th ed.), p. 247. In Bullock v. Zilley, 1 N. J. Eq. 489, the words “ his wife,” as applied to complainant, were held to be mere words of description of the individual, and not as defining the capacity in which she was to benefit. In Mellen’s Estate, 28 W. N. C. 120, where the beneficiary was named as “ T. W. the husband of my said daughter,” the word “ husband ” was held to be a description of the person and not of the character in which he was to take. The reasoning of Judge Penbose fits accurately this case. He said : “We may conjecture, but we cannot be certain, that the inducing cause of the provision for Thomas Waller was that he was the husband of the testator’s daughter. The relationship, however, could not have been the sole motive since the gift is to the individual by name, and not to him simply as husband, nor is there, as in Bell v. Smalley, 18 Atlantic Repr. 70, the evidence offered by the restriction of the bounty to the time during which the beneficiary remains unmarried. We have no right to say that the gift was subject to the condition that the donee should at the time it took effect be the husband of the daughter.”

In Brown v. A. O. U. W., 208 Pa. 101, where a certificate was payable at the death of John Brown to his wife, Mattie Brown, we held that it was for the individual, Mattie Brown, without regard to the fact of her continuing to be the wife of the member, and subsequent divorce did not forfeit her right. The husband there had the power to change the beneficiary at any time, and we held that the fact that he did not do so, during a period of eight years between the divorce and his death, made evident his intention not to deprive his first wife of the benefit of the policy. “ Where a man retains a revocable instrument with full opportunity of revoking it, and does not revoke it, there is a strong presumption that he wishes it to stand: ” Tilghman, C. J., in Irish v. Smith, 8 S. & R. 573.

We are clear that the will indicates that the testator intended the gift for the individual, Mary Brown Jones, who was at that time liis wife, and identified by him as such. We think the bequest is unrestricted, and that the words, “ my wife,” are, as we said above, only descriptive, and do not import a condition that the beneficiary shall remain his wife. Nor do we doubt that as to the object of the legacy the will speaks from its date : Anshutz v. Miller, 81 Pa. 212. “ Prima facie a gift to the wife of A, who had a wife living at the date of the will, goes to that wife and no other. ... If there is anything on the face of the will to show that an existing person is referred to, the case is clear: ” Theobald on Wills, 249.

Nor is there anything in the Act of June 4, 1879, P. L. 88, to the contrary. Under the requirements of that act, it is “ with reference to anjr real or personal estate embraced in it ” that every will shall speak as of the testator’s death. In Robeno v. Marlatt, 136 Pa. 35, the court below said, on page 37:' “It is claimed, however, that the act of June 4, 1879, bars their (after-born children) right. This act lias received judicial construction, the results of which are that as to the condition of the donees the will speaks as of the date; as to the subjects of the testamentary disposition, the will is construed as of the death; as to the objects, that is, the persons who are to take under it, and their condition, the will speaks as of its date ; as to the testator’s condition, it is to be considered as of its date. The act is restricted in its effect to the real and personal property passing under it.” And this statement was affirmed by this court.

But turning to the second question presented here, it is elaborately argued that as matter of law, the bequest to Mary Brown Jones was impliedly revoked by reason of the divorce. No authority has been cited in support of the proposition that divorce in itself is sufficient to work a revocation of a will, and we are not aware that any exists. The only case which has been cited by counsel as sustaining this position is Lansing v. Haynes, 95 Mich. 16. But examination shows that the Michigan statute allows the court to .determine whether the subsequent changes in the condition or circumstances of the testator, are sufficient to work an implied revocation of the will. And the decision in that case rested also upon the fact, that pending the divorce proceeding there was a settlement of the property rights of the parties. A division of the real estate was made, each deeding to the other. An agreement was also made by which the husband conveyed to the wife certain personal property, and she agreed to release him from all demands of every kind or nature. The agreement stated that it, and the deeds executed by them, were intended as a property settlement between them. This was a practical satisfaction of the bequest, and amounted to an ademption.

As we read this decision, it was controlled by the fact of the settlement of property rights between the parties and not by the divorce itself. At common law, the doctrine of implied revocation of a will from change of circumstances, did not include divorce. In fact the instances were few, under the common law, in which an alteration of circumstances was held sufficient to justify an implied revocation. Both at common law and under the statutes of most of the states, it is only certain definite changes in the condition or family relations of the testator which impliedly revoke a will, executed before such changes. The great weight of authority is that no changes beyond the few which have been many times specifically enumerated and recognized as sufficient for the purpose, can have this effect: Page on Wills, sec. 280. A will maybe so easily revoked by the testator in his lifetime that the courts have been slow in permitting changes in circumstances to do, by implication, what the testator may so readily do for himself. In Wogan v. Small, 11 S. & R. 141, Tilghman, C. J., said: “ There is one case, and only one, in which it has hitherto been thought proper to decide, that the revocation of a will might be implied from an alteration of circumstances, and that is, when the testator married and had a child, subsequently to the making, of his will; but both circumstances must concur; .... The danger of this principle of implied revocation is very great, and that is the reason why, although very strong eases of hardship have occurred, the judges have never ventured to advance beyond that one step. We have the less reason to resort to implied revocation, as our legislation has provided for the case of subsequent marriage or children by the Act of April 19, 1794, 3 Sm. L. 148. . . . Once establish the judicial habit of examining the situation of a man’s fortune or family, and revoking his will, because he has made an absurd or an inhuman disposition of his property, or because we merely suppose he was ignorant of the state of his affairs, or of the law, and no man’s will is safe.” These words were weighty then, they should be equally so now.

The opening sentences in Marshall v. Marshall, 11 Pa. 430, are obiter dicta, for there was no occasion in that case to consider the question of what was sufficient to justify an implied revocation of a will. That subject was not before the court. The testator in that case, after devising one tract of land to one son and another tract of land to another son, subsequently sold the first tract. It was urged that this would work a revocation of the whole will. But the court decided that the sale affected only the devise of the tract in question, and the residue of the wil] remained in full force. It was a case of ademption, which applies only to the subject-matter of testamentary disposition. When the subject-matter bequeathed is sold, or disposed of, it is thereby completely extinguished, and nothing remains to which the words of the will can apply. The principle of ademption is entirely distinct from that of an implied revocation of the terms of the will. Ademption has to do with the subject-matter of the bequests, while the doctrine of implied revocation is founded upon a presumed neglect of duty, upon the part of the testator, or upon a change in his family relations. Ademption involves action upon the part of the testator; the doing of some act with regard to the subject-matter, which interferes with the operation of the words of the will. That is he anticipates the gift there made, by bestowing it during his lifetime upon the legatee, or disposes of the subject-matter in some way which puts it out of the question to follow his directions as set forth in the will. Nothing of that kind has been done in the present case. The testator has not interfered with his estate in any way inconsistent with the terms of his will.

The statutory rules in Pennsylvania, as to the revocation of wills, are reviewed by Read, J., in Walker v. Hall, 34 Pa. 483, and on page 487 he says “ we have in reality substituted for the common-law rule, one of our own, depending entirely upon our statutory enactments ” and he concludes with the statement that our rules are not open to the doctrine of implied presumption. In Young’s Appeal, 39 Pa. 115, the court held that the testamentary paper was executed under a special power, and not under the statute of wills. Whatever is there said, as to a change in circumstances which create new moral duties, amounting to implied revocation, is obiter dicta, in so far as' it goes beyond the conditions enumerated in the statutory enactments. The decision was that the will was revoked by the birth of a son to testatrix after the making of the will. While it was the disposition of an equitable estate, yet it followed the principle of the statute.

We are by no means singular in holding to the doctrine that the changed condition of the testator must be within the conditions named in the statutes, for this view prevails largely in other states; for instance, in re Comassi’s Estate, 107 Cal. 1,^* it is said, “in order to determine whether a will has been properly executed or revoked, or whether, after its execution, there has been such a change in the status or personal relations of the testator as in law will effect its revocation, we have only to determine whether the changed condition of the testator is within the condition named in the statute (cites code) .... The effect of these provisions is to do away with the doctrine of implied revocation, which was for so many years a subject of controversy in the English courts, and which, in many of the states of this country, is still permitted under a clause in their statutes, authorizing a revocation to be ‘ implied by law for subsequent changes in the condition of the testator.’ ” And in Davis v. Fogle, 124 Ind. 41.^† “It is manifest that no act, thing or deed will revoke a will once duly executed, unless it comes within the provisions of the statute providing for the revocation of wills.” In Noyes v. Southworth, 55 Mich.^‡ 173, the court says: “ There is no sound reason that we can perceive why, in the absence of statutes, implied revocation should be extended.” And in Schouler on Wills, sec. 427, it is said: “ In short, revocation of a particular will by mere inference of law or presumption, is limited to a very few instances in our modern practice. Modern legislation itself repudiates in England and some of our states, the old theory of implied intention to revoke on the ground of alteration of circumstances, and what is left of that theory aside from such statutes it would be very difficult to say.”

A case much like the present, is Card v. Alexander, 48 Conn. 492. There the bequest was to “ my wife Amelia.” A year and a half after the execution of the will, the testator obtained a divorce from his wife, for her misconduct, and four years afterwards died, without changing his will. It was held that the bequest was not to be regarded as conditioned upon the wife continuing to be such until his death; and that the divorce did not as matter of law impliedly revoke the will. The circumstances of the divorce in that case spoke more strongly against the claimant than here. In the present case, it was the misconduct of the testator which caused the divorce.

We can see nothing in the facts of this case, which would justify any extension of the doctrine of implied revocation. The reason which lies behind the doctrine as defined both in the common law and by the statutes, is that some obvious injustice may be prevented. That some moral duty, which has been overlookéd, it is presumed, by the testator, may be discharged. What would be the result of holding in this case, that the change in circumstances worked a revocation ? Only this : the whole estate of testator would go to his son, to the entire exclusion therefrom of his former wife and the mother of his child. Can it be said that the obtaining by the wife of a divorce, by reason of the misconduct of the testator, entailed upon him any moral duty to destroy the provision, which he had made in his will, for the woman who was for years his faithful wife, in order to pile up far more than a competency for their child.

The only inference which can be drawn from the record in this case, is that the testator, and he alone, was responsible for the rupture of the marital ties. It may well be, then, that by the provision in his will he intended to make some reparation for the sorrow and distress he brought upon his wife. To impute to him such intention would be more kind, than to presume, as is urged in the argument, that he was filled with resentment, and became possessed by an ignoble purpose which he failed to carry out. He must have known that he could change or destroy his will at any time, yet he did not do so.

We agree with the conclusions reached and stated by the auditing judge in his careful and able opinion, that “To hold under the facts in this case that the divorce revoked this bequest would not be in accordance with statutory regulations, and would be extending the doctrine of an implied revocation beyond any authoritative adjudication; and would be contrary to the express and implied intention of the testator.”

The specifications of error are overruled. The decree of the orphans’ court is affirmed and this appeal is dismissed, at the cost of the appellant.

* Also Reported, 40 Pao. Repr. 15, Reporter.

† Also reported, 23 N. E. Repr. 860.

‡ Also reported 20 N. W. Repr. 891, Reporter.

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Dissenting Opinion

Mb. Chief Justice Mitcheul,

dissenting.

I would reverse this judgment for the reasons so ably set forth in the opinion of Judge Hawkins.