359 F.2d 235 | D.C. Cir. | 1966
Lead Opinion
The question is whether the last will and testament of Morris F. Luff, deceased, of whom appellant, Willard J. Luff, is a surviving brother and one of several heirs at law, was impliedly revoked. The will, dated April 7,1953, provided that testator’s entire estate should go to Ruth K. Luff, appellee, who then was his wife. Thereafter they separated. Some five years after the separation she sued for and obtained an absolute divorce
The will was found in testator’s apartment after his death. At his request it had been sent to him by his former wife after their divorce. She offered the will for probate. Appellant filed a caveat, and the issue as to the validity of the will came on for trial before judge and jury. Appellant relied entirely upon the divorce and property settlement as impliedly revoking the will. Appellee introduced considerable testimony tending to show that decedent should not be held to have intended to revoke the will. • At the close of all • the evidence the motion of appellee for a directed verdict in her favor was granted, the will thus being given effect. We reverse, being of opinion that the divorce with property settlement revoked the will by implication of law. In so holding we follow the majority rule, which we think has the support of better reasoning.
We discuss first whether our Gode provisions respecting revocation, in effect during the relevant times, set forth in the margin,
Appellee contends, however, that the common law did not extend to an implied
The doctrine of implied revocation due to change of condition or circumstances came to be recognized in a number of states by statute.
The trend of statutory law in other jurisdictions is to include changes other than such as were present in Pascucci, including marriage alone and divorce alone.
The majority rule clearly rests on the assumption based upon common knowledge and experience that it is so rare and so unusual for a testator under these circumstances [divorce and property settlement] to desire or intend that his divorced spouse should benefit further under his will, that it is not improper or unreasonable to require that such a testator make that extraordinary desire and intention manifest by a formal republication of his will or by the execution of a new will.
Caswell v. Kent, supra at 582-583.
In a Memorandum Opinion of the late Chief Justice Bolitha J. Laws of our District Court in Estate of Hale Plahn Daugherty, Admin. #69,504, cited at 1 Mersch, Probate Practice in the District of Columbia § 672 (2d ed. 1952), it is said:
“It appears to be the weight of authority that a divorce coupled with a property settlement would revoke a will previously made. Such a settlement is said to be plainly inconsistent with the provisions of the will.”8
Thus we find support for our position that we should not limit application of the doctrine to such cases as Pascucci, but appropriately should apply it in the circumstances of this case.
Respectable authority to the contrary is not lacking. Hertrais v. Moore, 325 Mass. 57, 88 N.E.2d 909; and see Baacke v. Baacke, 50 Neb. 18, 69 N.W. 303; Mosely v. Mosely, 217 Ark. 536, 231 S.W.2d 99, 18 A.L.R.2d 695; Codner v. Caldwell, 156 Ohio St. 197, 101 N.E.2d 901. The reasoning of the contrary rule is stated as follows by the Massachusetts court in Hertrais v. Moore, 88 N.E.2d at 912:
It would be a serious matter to invalidate a will because of a supposed change in intention on the part of a testator not given formal expression by him. Our conclusion avoids the difficulties faced in those jurisdictions where the statutes, permit the adoption of a contrary view, where the revocation is not presumptive but absolute, and evidence, not amounting to a republication, cannot be received of a testator’s actual intent to continue his will in force, and where the prevailing standard seems to be what a reasonable testator would be deemed to have intended. [citations omitted] If the changes relied upon by the respondents were held to achieve a revocation implied in law, other changes can be imagined which with equal plausibility might be urged to have similar effect. Persons who have drawn wills or who are to draw wills are not now to be exposed to the risk that, in the present circumstances and perhaps others, the courts might decree revocation notwithstanding that such persons do not avail themselves of the easy means afforded by statute for accomplishing revocation by their own intentional acts.
The commentators recognize the division of authority;
The intention to revoke is imputed and conclusive. It may not be overcome by evidence adduced subsequent to the death of the testator and then relied upon as indicative of an intention that the will should be effective. Inquiry into the state of mind of the testator is confined to that imputed to him by the divorce and property settlement. Lansing v. Haynes, supra; Wirth v. Wirth, supra; In re Battis, supra; In re Martin’s Estate, supra; Caswell v. Kent, supra. Contra, Card v. Alexander, 48 Conn. 492; In re Jones’ Estate, 211 Pa. 364, 60 A. 915, 69 L.R.A. 940; In re Arnold’s Estate, 60 Nev. 376, 110 P.2d 204.
At common law certain changes in the condition and circumstances of the testator worked a revocation by implication, and it was formerly held that this was prima facie only, and open to rebuttal by proof that the testator intended his will to remain, notwithstanding the change in his circumstances. The rule, however, by all modern authorities, is that the presumption of law arising from the changed conditions is conclusive, and no evidence is admissible to rebut it. * * *
In re Hall’s Estate, 106 Minn. 502, 119 N.W. 219, 220. This is the sounder rule, illustrated by the present case. There was evidence of strained relations between testator and appellant, one of his heirs. It was also urged that when at the divorced husband’s request his former wife sent the will to him he kept it in a bureau drawer in his apartment where it was found after his death, and that this indicated an intention not to revoke it. Testator is not available to give his version of either of these matters. He has a sister and other brothers besides appellant; and he may have asked his former wife to send the will to him so that it would no longer be in her control. He may have retained it undestroyed as a memento of happier days, or because of indecision. It is safer to rely upon the divorce and carefully composed adjustment of property between the parties, by which the former husband was relieved of further legal obligation to his former wife with respect to his property. While he remained of course free to make additional provision for her if he desired to do so the law should require this to be done anew in a manner provided by statute for valid testamentary disposition.
Reversed and remanded for further proceedings not inconsistent with this opinion.
. This agreement set forth in some detail a division of particular items of personal property and provided that from the monies in the hands of the wife she would pay the husband the sum of $7,000 and give him the deed to a cooperative apartment. The agreement also provided that the wife “shall not claim any interest as Wife, widow, heir, next of kin or successor” in the property of the husband and that she would execute any papers necessary or convenient to enable him, his heirs, executors, administrators or assigns “to hold or dispose of his property, free and clear of all rights of hers which she might have had except for this covenant.”
. D.C. Code § 19-103: Form of will — Witnesses — Alteration—Revocation.
All wills and testaments shall be in writing and signed by the testator, or by some other person in his presence and by his express directions, and shall be attested and subscribed in the presence of the said testator by at least two credible witnesses, or else they shall be utterly void and of no effect; and, moreover, no devise or bequest, or any clause thereof, shall be revocable otherwise than by some other will or codicil in writing or other writing declaring the same, or by burning, canceling, tearing, or obliterating the same by the testator himself or in his presence and by his direction and consent; but all devises and bequests shall remain and continue in force until the same be burned, canceled, torn, or obliterated by the testator or by his direction in the manner aforesaid, or unless the same be altered or revoked by some other will, testament, or codicil in writing, or other writing of the testator signed in the presence of at least two witnesses attesting the same, any former law or usage to the contrary notwithstanding. (Mar. 3, 1901, 31 Stat. 1433, ch. 854, § 1626.) (Repealed by Pub.L. No. 183, 89th Cong., 1st Sess., § 8. And see n. 6, infra.)
. Not mentioned in the opinion was the earlier one of Mr. Justice Barnard of the Supreme Court of the District of Columbia, Estate of Mary D. Heyl, 30 Wash. L.Rep. 296 (1902), holding that a change in the circumstances of a testatrix, by the birth of a child, by implication revoked her will executed prior to the birth.
. See Rees, “American Wills Statutes,” 46 Va.L.Rev. 856, 880-881 (I960)-.
. Id. at 881, n. 600.
. However, on January 1, 1966, Pub.L. No. 183, 89th Cong., 1st Sess. (Sept. 14, 1965) took effect and Title 18, D.C.Code, § 109, (replacing the former § 19-103 and other provisions), does now explicitly include the words authorizing revocation “by implication of law.” S.Rep.No. 612, 89th Cong., 1st Sess. 10-11 (1965); H.R. Rep. No. 235, 89th Cong., 1st Sess. 8-9 (1965).
. The English Wills Act of 1837 by Article XIX provides that “no will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances,” but simultaneously by Article XVIII the Act provides that “every will made by a man or woman shall be revoked by his or her marriage,” with an exception not pertinent to our discussion. Wills Act, 1837, 7 Will. 4 and 1 Viet., c. 26, §§ 19, 20 at 3 Jarman, Wills App. B, at p. 2085 (8th ed. 1951). For state statutes see Rees, “American Wills Statutes,” 46 Va.L.Rev. 856, 885 (1960) and the Model Probate Code § 53.
. “In the case at bar,” the Chief Justice continued, “as there was neither a general property settlement nor a transfer of any part of the husband’s estate to the wife the reasoning of the cases mentioned ■ does not apply.”
. 2 Page, Wills § 21.101 (Bowe-Parker Revision 1960); Atkinson, Wills § 85, at 431 (2d ed. 1953); Annot., 18 A.L.R.2d 697, 705-710 (1951); Thompson, Wills § 176 (3d ed. 1947); Mersch, “Implied Revocation of Wills Revised in the District of Columbia,” 33 Geo.L.J. 182 (1945); Durfee, “Revocation of Wills by Subsequent Change in the Conditions or Circumstances of the Testator,” 40 Mich. L.Rev. 406, 412-413 (1942); Note, 52 Harv.L.Rev. 332 (1938); Evans, “Testamentary Revocation by Divorce,” 24 Ky. L.J. 1 (1935); Graunke and Beuscher, “The Doctrine of Implied Revocation of Wills by Reason of Change in Domestic Relations of the Testator,” 5 WisXJEtev. 387 (1930).
. Mersch, op. oil. supra note 9, 188-189.
. Divorce itself is not enough. See text and cases referred to in 2 Page, op. oit. supra, note 9, at 521-522.
Dissenting Opinion
(dissenting):
I cannot follow the path taken by my brethren. The point of departure for all of us becomes for me the point of return —the word of the testator executed in full accordance with the statute, witnessed by two adult witnesses. No word written down by ordinary man is more solemn than his last will and testament. The governing legislation not only pro
Almost as venerable as the legislative enactment — the statute of frauds and the statute of wills — is the judicial encroachment or exception established by the common law doctrine of implied revocation of wills.
Any new content for the doctrine of implied revocation of wills as a judicial exception must, however, satisfy the purpose and policy of that doctrine. In Pas-cucci the court had available the almost overwhelming presumption that the deceased did not intend his property to devolve in accordance with his testament, in the absence of republication or a new document after acquiring a wife and child. No similar injustice or presumption exists in the case of divorce and property settlement. Unlike wives and children, the common law heirs, possibly remote, are not especially favored by the law. Nor can it be assumed that to the testator they represent a clear choice in preference to the former wife. That choice is even less clear if we are acting not out of deference to hoary precedent, but out of an assumption as to the needs of modern times. In modern society divorce is not only more frequent than it used to be, but increasingly is sought notwithstanding considerable and genuine affection by couples who realize that they have become incompatible,
Doubtless many, perhaps most, divorced men desire to disinherit their wives. Doubtless many do so, some even with ceremonial bonfires and whoops of joy. What we are considering, however, is the probable intent of those divorced men who do not destroy their wills. It is fair to observe that people tend to do the things they really want to do, and that inaction generally signifies contentment or at worst indecision.
The procedural record leaves us without findings as to testator’s actual intent.
The doctrine whereby courts can define the changed circumstances constituting implied revocation is hardly an essential of modern life. In England where the doctrine arose it was abolished more than 100 years ago by statute.
Accepting the doctrine of implied revocation of wills as a judicial exception, it is properly confined, in my view, to such change of circumstance, like the Pascucci
There is a difference between the permissible approach of a court and of a legislature to the task of defining the circumstances that constitute revocation of a will by implication of law. There is much to be said for the kind of legislation passed in some states, and proposed in § 53 of the Model Probate Code, that subsequent divorce revokes a testamentary provision in favor of the spouse.
The judicial or common law approach is properly limited to finding revocation of a will only where necessary to effectuate probable intention and prevent injustice. By these standards divorce is not sufficient for revocation. A man who wishes to disinherit a divorced wife has the option to do so in case of a property settlement, or wherever disinheritance does not violate the decree or an agreement. He can accomplish any intention of disinheritance by following the simple procedures outlined in D.C.Code § 19-103. A man who intends to disinherit a divorced wife is more likely to speak up to his counsel at once, and have it taken care of. A man who has decided not to disinherit his divorced wife is less likely to bring the matter up even assuming he is aware of the little-known statutory technique of republication of a will. He may be hesitant to expose and enlarge the wound to his ego by admitting the depth of his affection for the former wife. He may have the hope that a new and more reciprocating object of his affection may yet appear on the scene.
The majority opinion indicates agreement with the ruling of Judge Laws (supra, note 3) that mere divorce does not work an implied revocation. I question whether the addition of a property settlement is so significant a difference in degree that the legal consequences should be drastically different. If the decisive factor is that the property settlement terminates all obligation to his former wife, that may also be established by a decree of divorce even in the absence of property settlement. If the termination of obligations was an immediate bargained-for right of consequence, he would presumably have taken advantage of his freedom from testamentary obligation to make a new will.
These matters are more properly for legislative than judicial determination, a determination that may depend significantly on a factual inquiry. In practice there may be all kinds of reasons for a property settlement solution to a divorce problem which do not bear significantly on the problems of implied revocation— tax reasons; reasons of pride; perhaps a simple recognition that both spouses really made property and perhaps salary contributions to their total wealth. The obligation of the deceased to transfer certain property, as a minimum, during
There is no significance in the 1965 revision of the District of Columbia Code providing a new section 18-109, effective January 1, 1966, even assuming it may be taken into account for a case involving prior events. It provides that a will “may not be revoked, except by implication of law,” otherwise than by destruction or a later writing. This exception merely flags, in the large type of the statute rather than the annotation, the existence of a doctrine of revocation by implication. As to the content of what constitutes revocation by implication of law, the Reviser’s Note makes plain that the revision was merely an acceptance of Pascucci, which in turn merely accepted revocation by implication from a subsequent marriage and children as a common law rule that had emerged before our Revolution. Along with Pas-cucci, the Reviser cited Allen v. Heron, swpra, applying “the usual common-law rule that a will in favor of a wife is not revoked by the birth of a child” and not finding that revocation “would probably reflect the testator’s wishes.”
There is relatively little time that a legislature concerned with awesome problems of national policy can be expected to devote to the private affairs of residents of the District of Columbia. Hence I would not shrink from expansion of common law doctrine to avoid injustice. A property settlement may be more conducive than continuing alimony to the start of a new life with another wife. But when the husband has not found a new spouse and has not destroyed his solmen will and testament, I do not find a clear-cut presumption or injustice which impels me to mandate intestacy in the absence of a legislative expression that this is the consequence of a property settlement.
I respectfully dissent.
. See generally 2 Page, Wills, 471-558 (Bowe-Parker Rev., 1960). The theory of implied revocation evolved in the ecclesiastical courts (p. 471).
. 79 U.S.App.D.C. 354, 147 F.2d 880 (1945).
. Judge Laws’ memorandum opinion in In Estate of Hale Plahn Daugherty, 1 Mersch, Probate Practice in the District of Columbia (2d ed. 1952) § 672, holds that divorce alone is not sufficient to revoke a will. He states that the weight of authority finds revocation in a divorce coupled with a property settlement, but specifically avoids a statement that this would be the rule in the District of Columbia, On the contrary, he points out that there is nothing in Pascucci “which indicates the rule of the common law had been extended” beyond marriage, for a woman, and marriage and the birth of issue, for a man, as constituting grounds for revocation of a will by implication.
. In the District of Columbia the grounds for divorce include voluntary separation without cohabitation for one year (five years prior to the passage of Public Law 89-217 on September 29, 1965). D.C. Code § 16-904. This is in effect an acceptance of the ground of incompatibility, with the safeguard that the parties will not act in undue haste.
. The brother introduced no evidence whatever as to actual intent of the deceased, but sought judgment of revocation as a matter of law, regardless of actual intent. The former wife contended that the will was operative (1) as a matter of law,
. Cf. Luff v. Luff, 105 U.S.App.D.C. 366, 267 F.2d 643 (1959), litigation involving a dispute between testator and his brother, appellant here, over proceeds of a large partnership claim against the Government.
. His bureau drawers were stocked with bow ties which his wife had made out of the same material as her dresses, mementos of their days as a “team.” Photographs of her abounded in his apartment. Also in his apartment was the will sent him by his former wife one year after the divorce. He died a year later at age 72. They had been married for twelve years prior to the separation.
. 7 Wm. IV & I Viet., 0. 26, § 20 (1837).
. Rees, American Will Statutes, 46 Va.L. Rev. 856, 880 (1960).
. There is a split of opinion concerning revocation of wills by implication from divorce plus property settlement:
(a) For commentators approving, see: Thompson, Wills, § 176, p. 277 (3d ed. 1947); Note, 50 Colum.L.Rev. 531, 534 (1950) (approving a rebuttable presumption).
(b) For those disapproving see: 2 Page, Wills, § 21.101 (Bowe-Parker Rev. 1960); Durfee, Revocation of Wills by Subsequent Change in the Condition or
Circumstances of the Testator, 40 Mich. L.Rev. 406, 417 (1942).
The court opinions look both ways. But in most eases approving implied revocation from divorce and property settlement the courts rely on statutes expressly providing for revocation of wills through changes in testator circumstances. These statutes were apparently read as a signal of legislative welcome to implied revocation. They are more suggestive of such a signal than our new Code, discussed infra, p. 243.
. See Caswell v. Kent, 158 Me. 493, 186 A.2d 581 (1962).
The court there indicated that since subsequent marriage and issue does not revoke a will by implication, in view of its prior decisions, and since that statute contemplates some revocation by implication, unless that provision is mere sur-plusage, it is proper to find revocation by implication in case of divorce and property settlement. Without discussing further this curious inversion of values, our jurisdiction at least does recognize revocation by implication in the Pascucci situation. It is therefore not necessary to reach out to the situation of divorce and property settlement in order to provide content for the new statutory provision recognizing revocation by implication. Our new statutory provision is given full recognition by construing it as a codification of the doctrine announced and applied in Pascucci without making it a point of departure for extension of Pascucci.
. See Atkinson, Wills, § 85, p. 432 (2d ed. 1953).