First Church of Christ, Scientist v. Watson

• Decision Date: 10 September 1970
• Docket Number: 4 Div. 393
• Citation: 286 Ala. 270,239 So.2d 194
• Parties: The FIRST CHURCH OF CHRIST, SCIENTIST v. Dallas L. WATSON, III, et al.
• Court: Alabama Supreme Court

Page 194

239 So.2d 194

286 Ala. 270

The FIRST CHURCH OF CHRIST, SCIENTIST v. Dallas L. WATSON, III, et al.

4 Div. 393.

Supreme Court of Alabama.

Sept. 10, 1970.

Farmer & Herring, Dothan, for appellant.

A. A. Smith, Hartford, Farmer & Farmer, Dothan, for appellees.

MADDOX, Justice.

The sole question presented by this appeal involves the construction to be given to the following will clause:

"I give, devise and bequeath all of my property, real, personal and mixed, wheresoever located to my beloved wife, LILLIE GRICE WATSON, to have and to hold as her property absolutely; provided that she lives to survive me for a period of (30) thirty days; but in the event of her death prior to the end of said period, then to THE FIRST CHURCH OF CHRIST, SCIENTIST, BOSTON, MASSACHUSETTS."

Dallas L. Watson, Jr., the testator, and Lillie Grice Watson were divorced on January 27, 1969, and he died 22 days later, and Lillie Grice Watson survived the testator for more than thirty days. The will was admitted to probate in Houston County on May 21, 1969.

The First Church of Christ, Scientist, in Boston, Massachusetts, a corporation, filed an original bill of complaint in the Circuit Court of Houston County against Dallas L. Watson, III, and Willie Marie Watson, children of the testator by his first wife, Jeanette Hutto Watson, seeking a construction of the will and asking the Court to find that it was the sole devisee under the will and therefore entitled to all the assets of the estate of the testator.

The trial court sustained demurrers filed separately and severally, on behalf of the two minor children of the defendants, to the bill as amended and substituted, and dismissed the bill. The First Church of Christ, Scientist, then took this appeal.

On appeal, both sides seem to agree that the divorce between Dallas L. Watson, Jr., and Lillie Grice Watson prevents her from taking anything under the provisions of the will, in view of the provisions of Section 1 of Act No. 287, Acts of Alabama, 1951, Regular Session, p. 572 (Title 61, Section 9(1)), which reads as follows:

'A divorce from the bonds of matrimony operates as a revocation of that part of the will of either party, made during coverture, making provision for the spouse of such party; and if after the making of a will, a woman marries, the marriage operates as a revocation of the will.'

There is sharp disagreement among the parties as to the right of The First Church of Christ, Scientist, to take under the will.

Construing the will before us as of the date of the testator's death and in view of the mandate of the statute, the former spouse could take nothing under the provisions of the will, but the entire will is not revoked, only that portion which makes provision for the former spouse. Tankersley v. Tankersley, 270 Ala. 571, 120 So.2d 744 (1960). Furthermore, there is a presumption that the testator intended to dispose of his entire estate and that he did not intend to die intestate as to any portion of his property, unless the contrary intention is so plain as to compel a different conclusion. Baker v. Wright, 257 Ala. 697, 60 So.2d 825 (1952). In this connection, it might be pointed out that the testator did not make any provision in his will for his children by the former marriage, and these children would share in the estate which passes by the will only if the will is declared to be invalid and they become entitled as heirs under our laws of descent and distribution. Appellees say this is what should happen.

A number of states have enacted statutes similar to ours specifying that a divorce from the bonds of matrimony operates, as a matter of law, as a revocation of that part of the will making provision for the former spouse. ¹ The language of these various state statutes would indicate that each was based upon § 53 of the Model Probate Code. In fact, the newer Uniform Probate Code, in § 2--508, provides:

'* * * (D)ivorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator, or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment Passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent.' (Emphasis added)

While our statute does not contain all of the provisions of § 2--508 of the Uniform Probate Code, we think that property which is prevented from passing to the former spouse because of revocation by divorce should pass as if the former spouse failed to survive the decedent, unless a contrary intention is apparent from the provisions of the will. ²

A case strikingly similar to our own here is Peiffer v. Old Nat. Bank & Union Trust Co., 166 Wash. 1, 6 P.2d 386 (1931). There the testator expressed a positive intention to give nothing to his daughter by is first wife, but left his entire property to his 'beloved...