Glascott v. Bragg

• Decision Date: 05 November 1901
• Citation: 111 Wis. 605,87 N.W. 853
• Parties: GLASCOTT v. BRAGG ET AL.
• Court: Wisconsin Supreme Court

111 Wis. 605

87 N.W. 853

GLASCOTT

v.BRAGG ET AL.

Supreme Court of Wisconsin.

Nov. 5, 1901.

Appeal from circuit court, Green county; B. F. Dunwiddie, Judge.

Judicial settlement of the estate of Archibald F. Glascott, deceased. From a judgment admitting to probate the last will and testament of deceased, William P. Bragg, as administrator, and another appeal. Reversed.J. D. Dunwiddie and Burr W. Jones, for appellants.

W. A. Corson (William G. Wheeler, of counsel), for respondent.

CASSODAY, C. J.

It appears from the record, in effect, that January 31, 1870, the deceased, Archibald F. Glascott, when a single man, made a will whereby he purported to give all his property to his brother, David S. Glascott, the respondent in this action; that January 11, 1875, the testator married Alice A. Bragg; that June 20, 1881, the testator and his wife duly adopted an infant son of Mary J. Morgan, whose husband had a short time before died; that said infant son was then less than four years of age, and by and upon his adoption his name was changed to William M. Glascott; that September 29, 1888, the testator's said wife died; that the testator remained unmarried from the time of the death of his wife, Alice A., until he died himself, April 21, 1899; that he never had any child other than his adopted son, William M. Glascott; that at the time of his death he left personal property of the probable value of $7,200, and real estate of the probable value of $3,500, and liabilities of the probable amount of $5,900; that after the death of his wife the testator caused the insurance on his life which had been payable to her, of $2,000, to be transferred to his brother David S., and his sister Mary Glascott, and the amount thereof was paid to them after his death; that during his life the testator also procured and maintained other insurance on his life in the sum of $3,000, payable to his adopted son, William M. Glascott, and which since his death has been paid to him; that January 10, 1900, the county court for Green county, after due hearing, refused to admit said will to probate; that thereupon the said David S. Glascott appealed from that judgment to the circuit court for Green county, whereupon the cause was retried, and at the close of the trial judgment was entered admitting the said will to probate, with costs. From that judgment the defendant William P. Bragg, as administrator, and the defendant William M. Glascott, bring this appeal.

The statute of this state prohibits the revocation of a will, “unless by burning, tearing, cancelling or obliterating the same, with the intention of revoking it,” or by the execution of some other will, codicil, or other writing, as therein prescribed, “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.” Section 2290, Rev. St. 1898. “Revocation implied by law,” thus excepted out from the operation of the prohibitory clause of this section, manifestly means such as had previously been implied at common law. Will of Ward, 70 Wis. 255, 35 N. W. 731, 5 Am. St. Rep. 174. There can be no doubt but what, at common law, the marriage of a man, and issue of such marriage, operated to revoke his will previously made, disposing of all his property, as here. Christopher v. Christopher, 2 Dickens, 445, s. c. 4 Burrows, 2182, and note; Spraage v. Stone, 2 Amb. 721; Brady v. Cubitt, 1 Doug. 31; Lancashire v. Lancashire, 5 Term R. 49, 58; Marston v. Fox, 8 Adol. & E. 14, 55; Israell v. Rodon, 2 Moore, P. C. 51. The earlier cases seemed to go upon the theory that such marriage and birth raised a mere presumption of an intent to revoke, but the rule held in the later cases was finally confirmed in the privy council in the last case cited, where it was expressly held that “marriage and birth of a child do not afford presumptive evidence of intention to revoke, but are in themselves an absolute revocation of a will made previous to the marriage, but not in contemplation of it; the rule being that there is a tacit condition annexed to the will that at the time of making it it should not have effect provided the deceased have a wife, and child subsequently born.” Mr. Schouler adopts the same view, and declares that “the common-law tribunals * * * solemnly decided that the principle was one of legal inference, independently altogether of what the party himself might have intended.” Schouler, Wills (2d Ed.) § 425. See, also, Baldwin v. Spriggs, 65 Md. 373, 5 Atl. 295. It follows from what has been said that, had William M. Glascott been the child of the deceased, Archibald Glascott, and his wife, Alice A., by birth instead of adoption, then such marriage and birth would have worked a complete revocation of the will. The question recurs whether under our statute such adoption is equivalent to such birth, for the purpose of implying such revocation. It is...