Lang v. Leiter

• Decision Date: 03 December 1956
• Citation: 144 N.E.2d 332,103 Ohio App. 119
• Parties: , 3 O.O.2d 184 LANG, Appellee, v. LEITER, Appellant.
• Court: Ohio Court of Appeals

Page 119

103 Ohio App. 119

144 N.E.2d 332, 3 O.O.2d 184

LANG, Appellee, v. LEITER, Appellant.

Court of Appeals of Ohio, Wood County.

Dec. 3, 1956.

Syllabus by the Court.

A divorce decree in effect restoring to the parties their separate property rights, but not coupled with a voluntary separation agreement contemplating a full settlement of their property rights, does not warrant a court finding an implied revocation of a will executed during marriage.

Adams & Bechtel, No. Baltimore, for appellant.

Reddin & Reddin, Bowling Green, for appellee.

FESS, Judge.

This is an appeal on questions of law from a judgment of the Probate Court finding and adjudging that a bequest and devise by the testator to his divorced wife was revoked by implication of law as a result of the divorce. The testator, John R. Leiter, and Lucille M. Leiter were married in 1936. No children were born of such marriage. On March 12, 1948, the testator executed his will, devising and bequeathing all his property, real and personal, 'to my wife Lucille M. Leiter absolutely and in fee simple.' In item 3 of his will he provided as follows:

'In the event that my wife, Lucille M. Leiter, shall not survive me, then all the interest in and share of my estate heretofore bequeathed and devised to my said wife, shall, by way of substitution, stitution, pass to and vest in my nephew, Linwood Lee Smith, and my niece, Pamela Jean Lang, equally, share and share alike, absolutely and in fee simple.'

On November 26, 1953, on petition of Lucille M. Leiter, she was granted a divorce from the testator on the ground that he had been quilty of gross neglect of duty, and it was decreed that the marriage contract theretofore existing between the parties be dissolved and both parties released from all obligations thereof; that the defendant be awarded the household goods now in his possession; that all real estate owned jointly by the parties remain in title as it then was; and that the plaintiff pay the costs of the action. After the divorce, Lucille M. Leiter was remarried. The testator died August 18, 1954.

Section 2107.33, Revised Code (Section 10504-47, General Code), after enumerating the various methods by which a will may be revoked, states that 'this section does not prevent the revocation implied by law, from subsequent changes in the circumstances of the testator.' Section 10504-47, General Code, provided, 'but nothing herein contained shall prevent the revocation implied by law, from subsequent changes in the condition or circumstances of the testator.'

Determination of the question herein presented involves the construction of the statute in the light of three decisions of the Supreme Court of Ohio--Charlton v. Miller, 27 Ohio St. 298, 22 Am.Rep. 307; Codner v. Caldwell, 156 Ohio St. 197, 101 N.E.2d 901; and Younker v. Johnson, 160 Ohio St. 409, 116 N.E.2d 715.

In Charlton v. Miller, 1875, it was held that the mere granting of a divorce to the husband did not revoke his will (executed prior to the marriage) leaving property to his divorced wife.

Likewise, in Codner v. Caldwell, 1951, supra, the court held that the granting of a divorce, coupled with a property settlement, did not impliedly revoke the will which was executed prior to the marriage.

But in Younker v. Johnson, 1954, supra, a divided court distinguished the Charlton and Codner cases and held that, under circumstances of a divorce decree coupled with a full settlement of property rights, a court is warranted in finding there is, as to legacies and devises to the divorced spouse, an implied revocation of a will executed during the marriage. The court apparently distinguished the Charlton and Codner cases on the ground that the wills in those cases were executed prior to the marriages, and hence the wills were not based upon the marriage relationship. However, in the Younker case, the majority opinion, in referring to the Charlton case, says, 160 Ohio St. at page 411, 116 N.E.2d at page 716:

'However, unlike the instant case, the will, in the first place, was executed prior to the marriage, and, secondly, there was no property settlement incident to the divorce decree.

'That decision is in uniformity with the great weight of authority.'

What does the phrase, 'full settlement of property rights,' mean, as used in the third paragraph of the syllabus in the Younker case? In the Charlton case, the terms of the divorce decree are not reported, but it appears that the wife's application for alimony was denied. In the Codner and Younker cases, there were separation agreements making no reference to testamentary dispositions. ¹

In the Charlton case, the court said that 'by the divorce, under the provisions of the statute * * * she was not the testator's widow at his decease,' and, therefore, not entitled to dower or an election. In the instant case, as in the Charlton case, the wife was awarded no alimony. Notwithstanding the divorce was...