Baacke v. Baacke
| Decision Date | 16 December 1896 |
| Docket Number | 6856 |
| Citation | 69 N.W. 303,50 Neb. 18 |
| Parties | HERMAN BAACKE ET AL. v. LIZZIE BAACKE ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Lancaster county. Tried below before TIBBETS, J. Affirmed.
AFFIRMED.
Abbott & Abbott, for plaintiffs in error.
References Boudinot v. Bradford, 2 Yeates [Pa.], 170 Eyster v. Young, 3 Yeates [Pa.], 511; Sneed v Ewing, 22 Am. Dec. [Ky.], 52; Wilson v. Fosket, 39 Am. Dec. [Mass.], 736; Negus v. Negus, 26 Am. [Iowa], 157; Graves v. Sheldon, 15 Am. Dec. [Vt.], 660; Young's Appeal, 80 Am. Dec. [Pa.], 518; Vanorsdall v. Van Deventer, 51 Barb. [N.Y.], 147; Heard v. Horton, 1 Den. [N.Y.], 165.
F. I. Foss and W. R. Matson, contra.
Carl Baacke, of Lancaster county, on the 16th day of December, 1887, executed a will which disposes of his property in the language following:
On February 11, 1893, the testator died, and a few days later T. H. Miller filed in the county court said will, and asked that the same be admitted to probate. Herman Baacke, son of said Carl, on March 3, 1893, presented to the county court a petition, alleging therein that the instrument purporting to be the last will and testament of Carl Baacke had been revoked and annulled, and praying that letters of administration be granted on the estate to one Henry Cramer. Subsequently, Herman Baacke and Elizabeth Klepper, son and daughter of the deceased, pleaded in the county court certain matters which they claimed amounted to a revocation of the will, and protested against the probate thereof. Upon the hearing the county court found that there had been a revocation of the will, refused to admit the instrument to probate, and appointed Henry Cramer administrator of the estate. An appeal was taken to the district court by the proponent, where the will was ordered to be probated. The contestants prosecute error to this court.
The record shows that Carl Baacke, at the time of the making of his will, had a wife, with whom he was then living; that subsequently she obtained a divorce from him, and her property rights were settled; that after the execution of the will, and prior to the death of the testator, three other children were born to his son Fritz, who survived their grandfather; and that said Fritz died about a year before the death of his father.
The statutory provisions in respect to the revocation of wills are contained in section 132, chapter 23, Compiled Statutes and are as follows: "No will, nor any part thereof, shall be revoked unless by burning, tearing, canceling, or obliterating the same, with the intention of revoking it, by the testator, or by some person in his presence and by his direction; or by some other will or codicil, in writing, executed as prescribed in this chapter; or by some other wording, signed, attested, and subscribed in the manner provided in this chapter for the execution of a will; excepting only that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator." It is not claimed in this case that there has been any express revocation of the will by the testator in any of the modes pointed out in the statute. The sole question is whether the facts already mentioned, namely, the divorce of the wife, the death of the son, Fritz, and the birth to the latter of three children, operated as an implied revocation of the will. It cannot escape notice that the statute quoted provides that no will, or any part of the same, shall be revoked or annulled by the testator unless he has performed some one of the acts which the legislature has declared shall constitute an express revocation, with the intent to revoke, with a clause saving revocations "implied by law from subsequent changes in the condition or circumstances of the testator." By the language just quoted the common law rule of revocation of wills by implication is retained in this state, except as modified by statute. Undoubtedly certain changes in the condition and circumstances of the testator will operate as a revocation. Thus, a sale of the entire estate devised will have that effect, since the will cannot thereafter take effect on it. (29 Am. & Eng. Ency. of Law, 308, and cases there cited; Collup v. Smith, 15 S.E. 584; Epps v. Dean, 28 Ga. 533; Bowen v. Johnson, 6 Ind. 110.) So, too, a sale of a part of the estate devised will work a revocation pro tanto. (Forney's Estate, 161 Pa. 209, 28 A. 1086; Borden v. Borden, 2 R.I. 94; Graham v. Burch, 47 Minn. 171, 49 N.W. 697.) At common law the will of a woman was revoked by her subsequent marriage, upon the theory that coverture destroyed her testamentary capacity to modify the will, and hence the instrument could not be relied upon as representing her wishes. (1 Jarmin, Wills [5th ed.], 167.) And in some of the states, by express statutory provisions, the same rule obtains. (Blodgett v. Moore, 141 Mass. 75, 5 N.E. 470; In re Kaufman's Will, 131 N.Y. 620, 30 N.E. 242; Stewart v. Powell, 14 S.W. 496; Corker v. Corker, 87 Cal. 643, 25 P. 922; Ellis v. Darden, 86 Ga. 368, 12 S.E. 652.) Under statutes like ours, which have removed most of the disabilities of married women and conferred express power upon them to dispose of their property by will, it has been held that the common law doctrine of the revocation of a will of a woman by her subsequent marriage is abrogated. (In re Tuller's Will, 79 Ill. 99; In re Hunt's Will, 81 Me. 275, 17 A. 68; In re Ward, 70 Wis. 251, 35 N.W. 731; Noyes v. Southworth, 55 Mich. 173.) In this state, by section 123, chapter 23, Compiled Statutes, a married woman may devise and dispose of her real and personal estate by a will, and revoke the will in the same manner as a man may do. At common law the will of an unmarried man was not revoked by his subsequent marriage or the subsequent birth of a child to him, but such marriage and birth conjointly worked a revocation of his will where no provision, in or out of the will, was made for the wife and child. .) In some of the states the doctrine of the common law has been changed by legislation. (Stewart v. Powell, 14 S.W. 496; Gay v. Gay, 84 Ala. 38, 4 So. 42; Rhodes v. Weldy, 46 Ohio St. 234, 20 N.E. 461; Holloman v. Copeland, 10 Ga. 79; Ware v. Wisner, 50 F. 310.) Manifestly, decisions based on statutes which expressly provide that a will shall be revoked by either marriage or the birth of a child are not applicable under the legislation of this state. It has been held that the revocation of a will cannot be implied...
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