95 Mich. 16 | Mich. | 1893
The facts in this case are these: The proponent and Garret Y. Lansing were married in December,
The three propositions of the contestants are as follows:
1. That these mutual wills formed a contract, and that, the proponent, having revoked her own will, is thereby estopped from claiming under this will.
*18 2. That the deeds and agreement constitute an. express revocation of the will.
3. That the will of the deceased is revoked by implication of law on account of the changed relations of the parties.
“ No will, nor any part thereof, shall be revoked unless by burning, tearing, canceling, or obliterating the same, with the intention of revoking it, by the testator, or by some person in liis presence, and by his direction; or by some- other will or codicil, in writing, executed as prescribed in this chapter; or by some other writing, signed, attested, and subscribed in the manner provided in this chapter for the execution of a will; excepting only that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator.” How. Stat. § 5793.
No reference whatever is made in the deeds and the agreement to these wills. They have an important bearing upon the question of , an implied revocation, but we do not think that they constitute the express revocation contemplated by the statute.
“Implied revocations are founded upon the reasonable presumption of an alteration of the testator’s mind, arising from conditions since the making of the will, producing a change in his previous obligations and duties. * * * There is not, perhaps, any code of civilized jurisprudence in .*19 which this doctrine of implied revocation does not exist, and apply when the occurrence of new social relations and moral duties raises a necessary presumption of a change of intention in the testator.” 4 Kent, Comm. 521. See, also, Smith, Prob. Law, 50; 2 Greenl. Ev. § 684; Woerner, Adm’n, § 48.
It is contended by the proponent that the only changed relations from which revocation can be implied are the marriage of a femme sole, and the marriage of a man and birth of issue; and these appear to have been at the common law the two principal reasons for such implication. But this rule was not without exceptions. Will of Ward, 70 Wis. 251, and authorities there cited. . The revocation must rest upon presumption, not upon intention. Verbal declarations of the testator as to his intentions or understanding are incompetent. Hoitt v. Hoitt, 63 N. H. 475 (3 Atl. Rep. 604). The married woman’s act is held to have abrogated this rule of the common law as to married women by giving to her the absolute control and disposal of her separate property. Will of Ward, supra. . So this Court has held that the constitutional provision giving her the right to devise her separate property acquired before marriage, or which she may afterwards acquire by gift, grant, inheritance, or devise, has abrogated this rule. Noyes v. Southworth,- 55 Mich. 173. So the birth of an illegitimate child, recognized and acknowledged by the father, was held to revoke a will made before the birth of the child. Milburn v. Milburn, 60 Iowa, 411 (14 N. W. Rep. 204).
It is held in Ohio that a divorce obtained by the husband does not operate as a revocation of a will made by the husband on the day of his marriage, but before and in contemplation of the marriage. The testator in that case devised to his wife $1,000, and the remainder of his property to his children by a former marriage. It was there said that the legacy did not depend upon the marriage, and could not, therefore, be lost by the divorce, and that
In Tyler v. Tyler, 19 Ill. 151, it is held that marriage, under a statute making the wife heir to-the husband, and the husband heir to the wife, revoked the husband’s will made prior to the marriage, and disposing of his entire estate without any provision for her; and this, too, though the marriage was without issue.
By the decree of divorce in this case, the parties became as strangers to each other, and neither owed to the other any obligation or duty thereafter. There was, therefore, a complete change in these relations, within the language above quoted from Chancellor Kent. It is not, in my judgment, the natural presumption that, after the testator had settled with her, liad conveyed to her a good share of his property, and they, by agreement, had terminated all their property, as well as their marital, relations, the will executed nearly 10 years before should remain in force, and operate upon his death as a conveyance of the remainder of his property to her, to the exclusion of his heirs. If this were so, then it would follow that, if he had children living, or a dependent mother or other dependent relatives, or a second wife without issue, his duties and obligations towards them must be set aside, in favor of a most harsh and unjust rule. The like result would follow where the husband had obtained a divorce from his wife
Divorces in England were infrequent, and this may well be held to account for the fact that this question has not .arisen there for adjudication in the courts. The natural presumption arising from these changed relations is the reasonable one, and the one which in law implies a revocation. The question is not to be controlled by a possible presumption, but by the reasonable presumption. The possibility, therefore, that the deceased might have desired that the remainder of his property should go to his divorced wife, cannot be considered in determining the question of an implied revocation in this case. Such disposition of his property would be unusual, and contrary to common experience.
It follows that the judgment must be reversed, and judgment entered in this Court for the contestants.