243 P. 862 | Cal. | 1926
On November 6, 1911, Constance Berger, then Constance Diercken, executed a will leaving her entire estate to Claudeus Large, and appointing him sole executor. On May 6, 1913, she married Harry L. Boyle, from whom she was divorced on November 4, 1916. On March 8, 1918, she married Jean Baptiste Berger, who predeceased her on July 15, 1923. Mrs. Berger died January 4, 1924, leaving no issue. Upon her death Claudeus Large offered the will made November 6, 1911, for probate. The heirs at law of Mrs. Berger objected to its admission upon the ground that it was executed at a time when the decedent was an unmarried woman, and was revoked by her subsequent marriage to Boyle. The proponent and petitioner interposed a demurrer to the opposition, which was sustained without leave to amend. The court thereupon admitted the will to probate, and letters testamentary, without bond, were ordered issued to Claudeus Large. The heirs of Constance Berger have appealed.
The sole question presented by the appeal is whether the will of Mrs. Berger was finally and completely revoked by her marriage to Boyle in 1911, at which time section
Wills are ambulatory by their nature and create no rights which the court can recognize or enforce until they become operative by the death of the testator. "Acts which remain thus inchoate . . . are in the nature of unexecuted intentions. The author of them may change his mind, or the state may determine that it is inexpedient to allow them to take effect." (Moultrie
v. Hunt,
It was provided by section 3072, Hill's Annotated Laws, State of Oregon, that the will of an unmarried woman shall be deemed revoked by her subsequent marriage. In Booth's Will,
Notwithstanding the rule so clearly established by the authorities, respondent contends that revocation, like the will itself, is ambulatory in every case, and dependent for effectiveness upon the law in force at the time of the death of the testator. From this premise he argues that if, after the time an act is done which under the law in force at that time would have the effect of a revocation, the law is so repealed, or amended prior to the death of the testator as to deny the effect of revocation to the act, then the will is not revoked. Applied to the facts of the present case, respondent's contention is that because section
The second answer to respondent's contention lies in the fact that it depends for its support upon a retroactive application of section
Respondent has cited a number of authorities which hold that the law of the domicile of a testator at the time of his death prevails over that of the place of the execution of a will; but the question of the retroactive effect of an amended statute on a will previously revoked by operation of law is not involved in the cases. Daniels on the New York Law of Wills, section 403, is cited as holding that a determination as to whether a propounded instrument was revoked by marriage is controlled by the law in force at the time of the decedent's death, and not by the law as it existed at the *111 time when the instrument was executed. He says: "If a change is made in the statute, the will of a person who died after the change went into effect is governed by the new law, unless there is some provision therein which limits its application." No one will dispute the accuracy of the rule, if there is a valid will, unrevoked, and existing at the time of the death of the testator. The author rests his assertion on decisions of the New York supreme court dealing with the statute providing that a man's will should be deemed revoked if the wife or issue of the marriage should be living at the death of the testator. Among them are: Matter of Dexter, 116 Misc. Rep. 17 [189 N.Y. Supp. 366]; Matter of Cutler, 114 Misc. Rep. 203 [186 N.Y. Supp. 271]; Matter of Coburn, 9 Misc. Rep. 437 [30 N.Y. Supp. 383];Matter of Gaffken, 114 Misc. Rep. 693 [187 N.Y. Supp. 255]. They expressly hold that the statute they construe was not retroactive. Mr. Daniels could not have intended his declaration to have application to the provision in the New York law that "a will executed by an unmarried woman shall be deemed revoked by her subsequent marriage," for in the section dealing with that subject he says (sec. 398): "The will of the unmarried woman becomes a nullity immediately upon her subsequent marriage." We deem it unnecessary to take the time to distinguish the authorities relied on by respondent. We have been cited to no decision from New York, or other jurisdictions, holding that a will finally revoked is revived by a subsequently enacted statute changing the manner of revocation. As holding a contrary view, see Smith v. Clemson, 6 Houst. (Del.) 171, 180.
Other contentions made by respondent, affording opportunity for argument by analogy, are not sufficient to overcome the conclusion we have reached that the will made by Mrs. Berger (nee Diercken) on November 6, 1911, was revoked eo instanti by her marriage to Henry L. Boyle on May 6, 1913. Consequently it was not entitled to be admitted to probate.
The order appealed from is reversed.
Richards, J., Shenk, J., Lawlor, J., and Seawell, J., concurred.
Rehearing denied. *112