Barnett v. Bellows

• Decision Date: 11 October 1926
• Docket Number: 25364
• Parties: Claude B. Barnett v. Florence Craig Bellows, Wineva Witter Phillips, W. L. M. Witter, Administrator of Estate of Delia Butler Witter, et al., Appellants
• Court: Missouri Supreme Court

287 S.W. 604

315 Mo. 1100

Claude B. Barnett v. Florence Craig Bellows, Wineva Witter Phillips, W. L. M. Witter, Administrator of Estate of Delia Butler Witter, et al., Appellants

No. 25364

Supreme Court of Missouri

October 11, 1926

Appeal from Adair Circuit Court; Hon. James A. Cooley Judge.

Affirmed.

Higbee & Mills, U. A. House and A. G. Knight for appellants.

(1) Section 510, R. S. 1919, 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 one hundred 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enabling statutes, the reason of the rule has ceased to exist, and it has accordingly been held that the rule itself is repealed. Kelley v. Stevenson, 85 Minn. 247, 89 Am. St. 545; Roane v. Hollingshead, 76 Md. 369, 35 Am. St. 441; In re Will of Lyon, 96 Wis. 339, 65 Am St. 53; Will of Ward, 70 Wis. 251, 5 Am. St. 177; In re Hastings, 130 N.W. 134, 34 L. R. A. (N. S.) 1021; Young's Appeal, 39 Pa. St. 115, 80 Am. Dec. 513, note; 28 R. C. L. secs. 15, 16, note 4, p. 73. (2) By Sec. 506, R. S. 1919, any married or unmarried woman of eighteen years of age or upward may make wills of her realty or personalty. Prior to 1865 a married woman could not dispose of her property by will, unless such power was given her by a marriage contract. R. S. 1855, sec. 3, p. 1567; G. S. 1865, sec. 13, p. 464. (3) Section 508, R. S. 1919, provides that "no will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked, except by a subsequent will, in writing, or by burning, cancelling, tearing or obliterating the same, by the testator, or in his presence, and by his consent and direction." The exception has reference to revocations implied by law from changes in the circumstances of the testator, his family, devisees, or estate, occurring between the time of making the will and his death, such as remarriage, etc.; and this same exception occurs in the statutes of Wisconsin, Minnesota and New Hampshire, and in fact in most of the states holding that the marriage of a woman does not revoke her will under existing enabling acts. Will of Ward, 70 Wis. 251, 5 Am. St. 175; Kelly v. Stevenson, 85 Minn. 247, 89 Am. St. 545; Hoitt v. Hoitt, 56 Am. Rep. 531; Young's Appeal, 80 Am. Dec. 513. (4) The contention that a single woman's marriage revokes her will, when in the next moment she may make it over is absurd, for "the law does not operate to destroy and restore the same thing by the same breath." Roane v. Hollingshead, 35 Am. St. 441; Will of Ward, 70 Wis. 251. (5) Since women are by constitutional and legislative enactments now made equal with men in their property and personal rights, any statute discriminating against them, and abridging their rights to have their wills stand the same as men's, is an unjust and discriminatory classification and in violation of the equal rights clause of the Constitution, as well as being a special law and class legislation. Article XIV, sec. 1, U.S. Constitution; Mo. Constitution, art. 4, sec. 53; State ex inf. v. Southern, 264 Mo. 275, State ex. rel. v. Herrmann, 75 Mo. 340; Ewing v. Hoblitzelle, 85 Mo. 64; State v. Miksicek, 225 Mo. 576. (6) The evidence of Judge Calfee, offered by defendants, and ruled out by the court, was competent on the question of a republication of the will, even though it be conceded the will was revoked by deceased's subsequent marriage. In re Will of Lyon, 96 Wis. 339, 65 Am. St. 52, note 54; Matter of McLarney, 60 Am. St. 666; 28 R. C. L. p. 122, sec. 75; Cravens v. Faulconer, 28 Mo. 19; Schierbaum v. Schemme, 157 Mo. 1; Grime v. Pittman, 113 Mo. 56; Bingaman v. Hannah, 270 Mo. 611; Maze v. Maze, 114 Mo. 536; Hughes v. Rader, 183 Mo. 630; Lindsay v. Stevens, 229 Mo. 600; Lane v. Lane, 114 Am. St. 207. (7) Section 510, is utterly inconsistent with Sections 506 and 537, R. S. 1919, and the latter section was enacted in 1917 (Laws 1917, p. 128), and all acts in conflict therewith were expressly repealed (Laws 1917, p. 129). Moreover "an intention to repeal an act may be gathered from its repugnancy to the general course of subsequent legislation, as an instance of this rule may be mentioned the effect given to the statutes enabling married women to sue and be sued, upon the exemptions contained in their favor in the statutes of limitations." Kibbe v. Ditto, 93 U.S. 674, 23 L.Ed. 1005; Sec. 209, R. S. 1919; Haywood v. Gunn, 82 Ill. 385; Castner v. Walrod, 83 Ill. 171; Evos v. Buckley, 94 Ill. 458; Geisen v. Heiderich, 104 Ill. 537; Cameron v. Smith, 50 Cal. 303; Brown v. Conseno, 51 Me. 301; McLaughlin v. Spangler, 57 Miss. 818; State v. Smith, 83 N.C. 306; State v. Troutman, 72 N.C. 551; Colcord v. Convoy, 40 Fla. 97; Ellis v. Darden, 11 L. R. A. 51. A statute may be repealed by implication when there is such a repugnancy between the provisions of the new law and the old, that they cannot stand together or be consistently reconciled. Pacific Railroad Co. v. Cass County, 53 Mo. 28; United States v. Henderson, 20 L.Ed. 235; People v. Burt, 43 Cal. 561; Forqueron v. Donally, 7 W.Va. 114. A conflict between sections may work a repeal. Stricklin v. Printing Co., 249 Mo. 622. A statute revising the whole subject-matter of a former statute, and evidently intended as a substitute for it, although it contains no express words to that effect, repeals the former. State v. Roller, 77 Mo. 120; State v. Hickman, 84 Mo. 79; Meriwether v. Love, 167 Mo. 520; Kern v. Legion of Honor, 167 Mo. 484; State ex rel. v. Wardell, 153 Mo. 325; Delaney v. Police Court, 167 Mo. 676.

M. D. Campbell and D. M. Wilson for respondent.

(1) The statutory rule that the will of an unmarried woman is revoked by her subsequent marriage is not abrogated or impliedly repealed by statutes conferring enlarged statutory capacity and power upon married women. The so-called married woman's acts do not repeal Sec. 510, R. S. 1919. Cohen v. Herbert, 205 Mo. 537; Ellis v. Darden, 86 Ga. 368; Lathrop v. Dunlop, 400 N.Y. 213; L. R. A. 1918B, 943; Colcord v. Conroy, 40 Fla. 97. (2) To justify the repeal of a statute by necessary implication there must be such a repugnancy and irreconcilable conflict between the statutes on the same subject that both cannot stand. State ex rel. v. Taylor, 244 Mo. 393; Gordon v. Hopkins, 87 Mo. 406; St. Louis v. Kellman, 235 Mo. 687. (3) The right to take property by devise or descent is a right, or more strictly speaking, a privilege, conferred by the law of the sovereign (in this case, the State) and is not a natural right. State ex rel. v. Henderson, 160 Mo. 190; State ex rel. v. Guinotte, 275 Mo. 298. (4) The same authority and competency are required, and the same solemnities and formalities must be observed, to make a valid republication, as are necessary to make a new will. Where the execution of the will requires attestation by two or more witnesses, it cannot be revived after revocation except by re-execution, or by codicil executed in the presence and under the attestation of the same number of witnesses. Woerner's Amer. Law Administration, pp. 112, 113. (5) Under statutes requiring wills to be executed with certain formalities, a duly executed will which is revoked by operation of law, can only be revived by a re-execution of the will. 40 Cyc. 1213 (II); Carey v. Baughn, 36 Iowa 540; Stewart v. Mulholland, 88 Ky. 38; Brown v. Clark, 77 N.Y. 369; Means v. Ury, 141 N.C. 248.

OPINION

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, Revised Statutes 1919.

The trial court held that the marriage of testatrix, after sne executed her will, revoked such will under the provisions of Section 510, Revised Statutes 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...