104 Kan. 624 | Kan. | 1919
On July 8, 1914, James Vanek, a bachelor, made a will bequeathing all his personal property to his brother, Edward Vanek, to whom he also devised a life interest in his realty, the remainder to vest in Edward’s oldest son if he should be survived by one, otherwise in Hary Vanek, a nephew of James, upon his payment of $2,000 to Edward’s widow. On February 29, 1916, the testator was married. He died on April 25, 1917. No issue resulted from the marriage. The will was admitted to probate. The widow, May Vanek, brought, an action in the district court against the claimants under the-, will asking to have it, together with the order of probate, and. letters of administration that had been granted, set aside on. the ground that it had been revoked by the marriage. Judgment was rendered in her favor, and the defendants appeal.
1. The principal question involved is whether or not, under our statutes, the subsequent marriage of a testator, without the birth of a child, may revoke a will. At common law, a will made by a single man was ordinarily revoked by his subsequent marriage and the birth of issue, but not by the marriage alone. (40 Cyc. 1198, 1200.) Some courts affirm, and others deny, that where the statute makes the wife an heir of her husband (the word “heir” being used for convenience, although not strictly accurate) marriage, even without issue, should have the effect of revoking his antenuptial will. (Hoy v. Hoy, 93 Miss. 732, and cases cited therein, and in the note thereto in 25 L. R. A., n. s., 182.) To the citations in the note referred to on the negative of the proposition should be added the later case of Herzog v. Trust Co. of Easton, 67 Fla. 54, Ann. Cas. 1917 A, 201. In Toepfer v. Kaeufer, 12 N. M. 372, the reásoning of the cases supporting the affirmative is- adopted, although the will involved was that of a woman, so that the legal questions presented were somewhat different. The courts which take the affirmative view do so mainly upon the ground that the bringing into existence of a new heir makes such a change in the testator’s condition that it should be conclusively presumed that he did not desire the previously executed will to remain in force — that this reasoning was the basis of the com
To the section of our statute of wills which provides' for express revocation is added: “but nothing herein contained shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator.” (Gen. Stat. 1915, § 11798.) We do not interpret this proviso as Intended to give to the courts the power to treat a will as revoked upon what might be deemed equitable grounds, whenever, between the execution of the will and the testator’s death, a change has taken place such as to warrant the belief that if he had anticipated it he would have made a different disposition of his property. For instance, if a father should make a will leaving all his estate to his daughters, and nothing to his sons, for the avowed reason that they were able to take care of themsélves, and thereafter one of them should be so permanently disabled as to become utterly helpless, a plausible argument could be made that the will was not consistent with the purposes of the father; but we cannot believe that the statute quoted would warrant a court in treating the will as revoked on that account. We construe the words “the revocation implied by law from subsequent changes in the condition or cir
“This provision clearly recognizes implied revocations, and is equivalent to an express enactment that the common-law rule as to implied revocations resulting from a change of condition or circumstances remains in force. Of course the rule can have no force as to such changes or conditions as are expressly provided for in the statute; but as to all others we must assume from the language of the provision quoted that the legislature had in mind the rules of the common law applicable to such cases, and therefore that it was intended that the marriage of a man and the birth of a child would operate to revoke a will previously made.” (Shorten v. Judd, 60 Kan. 73, 80, 55 Pac. 286.)
It may be sound policy to maintain a rule that a will is revoked by the subsequent bringing into existence of an heir who, without such revocation, would be cut off entirely and receive no part of the testator’s property; but where the new heir is by the law given a considerable share of the estate, regardless of the provisions of the will, an entirely different situation is presented. This distinction is emphasized by the recognition in the development of the common law of the principle on which it is founded. In several early English cases, which are cited in most discussions of the subject, it was declared that the birth of a child did not revoke the antenuptial will of its father, except where it undertook to dispose of all his property, because there would otherwise be something left for the new heir. (40 Cyc. 1199, note 8.)
2. The plaintiff also contends that, apart from any question .of revocation, the widow is entitled to all the property owned
The judgment is reversed, and the cause is remanded with directions to render judgment for the defendants.