Barnett v. Bellows

• Citation: 287 S.W. 604
• Decision Date: 16 August 1926
• Docket Number: No. 25364.,25364.
• Parties: BARNETT v. BELLOWS et al.
• Court: United States State Supreme Court of Missouri

287 S.W. 604

BARNETT v. BELLOWS et al.

No. 25364.

Supreme Court of Missouri, Division No. 2.

August 16, 1926.

Motion for Rehearing Denied October 11, 1826.

Appeal from Circuit Court, Adair County; James A. Cooley, Judge.

Action by Claude B. Barnett against Florence Craig Bellows and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Higbee & Mills, of Kirksville, 1J. A. House, of Milan, and A. G. Knight, of Trenton, for appellants.

M. D. Campbell, of Kirksville, and D. M. Wilson, of Milan, for respondent.

BLAIR, J.

Action to have a will declared revoked. From a judgment for plaintiff, defendants have appealed.

The testatrix was Delia Butler. She was a widow of John P. Butler, a former circuit judge of this state, and was childless at the time she executed the will in question. Subsequently she married one W. L. M. Witter. No children were born of that marriage. Respondent is a nephew of a deceased sister of testatrix. The residue of the estate, after making provision for certain small specific bequests, was given by the will to appellant Wineva Witter Phillips, a half-sister of respondent, Barnett. The estate amounted to $40,000 or more. Witter, the surviving husband of testatrix, demanded one-half of the estate under the provisions of section 320, R. S. 1919.

The trial court held that the marriage of testatrix, after she executed her will, revoked such will under the provisions of section 510, R. S. 1919, and found for plaintiff, respondent here.

Appellants offered testimony tending to show that, after her marriage to Witter, testatrix orally republished her said will. This testimony was offered on the theory that, if the court held that the will was revoked under section 510, by the marriage of testatrix, it was nevertheless in force at the time of the death of testatrix, because she had orally republished same. The only questions for consideration therefore, deal with the correctness of the trial court's rulings in such respects. Section 510 reads as follows:

"A will executed by an unmarried woman shall be deemed revoked by her subsequent marriage."

Appellants contend that said section has been repealed by implication because of the enactment of our several married woman's acts, including the right of a married woman to make disposition of her property by will. On the other hand, respondent contends that the married woman's acts have not had such effect.

Appellants argue that section 510 —

"is but declaratory of the common law enacted at a time when a married woman could not make a will, and when her incapacity to make a will after marriage prevented her from altering or revoking one made before marriage, and this incapacity constituted the reason upon which the common-law rule as to revocation by marriage was founded, and, since these `fetters' and disabilities have been 100 per cent, removed by enabling statutes, the reason of the rule has ceased to exist, and it has accordingly been held that the rule itself is repealed."

It is true that section 510 is but declaratory of the common law. At common law a married woman could not make a will and dispose of her separate property unless in accordance with an antenuptial agreement. It was therefore necessary that marriage should be held to revoke a will made while the woman was single, because her subsequent marriage destroyed her power to change her will. When the common-law rule that married women could not devise their property by law was abrogated by statutes giving them the same right to make a win as was possessed by, a feme sole, the reason for the commonlaw rule, that the will of a single woman is revoked by her subsequent marriage, ceased to exist, and, when the reason for the rule failed, the rule itself failed. Such, in substance, is the holding in the cases cited by appellants. However, the cases throughout the country are not all in harmony even upon that point.

But Missouri has enacted a statute on the subject which is declaratory of the common law. Let it' be assumed that there is no longer in this state any reason for the existence of section 510, for the reason that, by Laws of 1921, p. 117, a woman of 21 years or upwards, whether married or single, may dispose of her real and personal property by will. But the repeal of a statute by implication, on the ground that the reason for the existence of such statute has failed, is a thing far different from holding that a rule of the common law ceases to be in force when the reason for such common-law rule has failed.

A statute can be regarded as repealed by implication only when such statute and a subsequently enacted statute upon the same subject are in such conflict that both cannot stand. This rule is well stated in one of the cases cited by respondent. St. Louis v. Kellman, 235 Mo. 687, 139 S. W. 443. The rule is so well established that citation of further authority is unnecessary.

Appellants have not undertaken to show that there is any necessary conflict or repugnancy between section 510, providing for the revocation of the will of a single woman upon her subsequent marriage, and any subsequent statute. It may be granted that the reason for section 510 no longer exists. But statutes do not depend upon reason for their force and vigor. It is sufficient that the Legislature enacted the statute and that it violates no constitutional restrictions. That section 510 no longer serves any useful purpose, because a woman upon her marriage may immediately execute the same character of will which she had executed while single, may also be granted. Yet, unless there is necessary and unavoidable conflict or repugnancy between said section and statutes subsequently enacted, section 510 must be held to be in force. No such conflict has been pointed out and we are unable to discover any.

The right to dispose of property by will is not a natural right. It is entirely competent for the Legislature to regulate both the manner and the extent of such disposition or to impose such restrictions or conditions thereon as it wills. State ex rel. McClintock v. Guinotte, 275 Mo. 298, loc. cit. 310 to 315, 204 S. W. 806. As the Legislature has not seen fit expressly to repeal section 510, it must be regarded as in full...