Grave v. Kittle

• Decision Date: 28 November 1951
• Docket Number: No. 18184,18184
• Parties: GRAVE v. KITTLE et al.
• Court: Indiana Appellate Court

Page 830

101 N.E.2d 830

122 Ind.App. 278

GRAVE v. KITTLE et al.

No. 18184.

Appellate Court of Indiana, in Banc.

Nov. 28, 1951.

Kivett & Kivett, by Silas C. Kivett, Sr., Indianapolis, Stevenson & Kendall, Danville, for appellant.

George W. Hadley, Otis E. Gulley, Danville, for Frank L. Kittle.

ACHOR, Judge.

This was an action filed by the appellant to resist the probate and contest the purported will of John L. Grave, deceased. The will was executed April 16, 1941, when John L. Grave was a married man. His then wife died, leaving no children and afterwards the said John L. Grave married this appellant, with whom he lived at the time of his death.

Item 3 of the said will provided 'In the event that my said wife, Ila L. Grave, shall not survive me, then I give, devise and bequesth all of my estate, real and personal, to Frank L. Kittle, who my wife and I have raised.'

The only question involved is whether or not the marriage of said John L. Grave to the appellant revoked the will which he had executed before said marriage and during his marriage with his former wife, Ila L. Grave. It was found and judgment was decreed by the trial court that said purported will of said John L. Grave 'is the last will and testament of John L. Grave, deceased' and the same was ordered admitted to probate. It is from this judgment that Maude Grave, widow of John L. Grave, deceased, and administratrix of his estate has appealed.

The only question presented by this appeal is whether or not it was the intention of the legislature by Chapter 309 of the Acts of 1913, page 838 to render null and void a will made by either a male or a female who afterwards becomes married. In other words, does marriage void all wills made before the marriage regardless of testator's married or unmarried status at the time the will was executed? The act in question, including the title, reads as follows:

'An Act providing that wills executed by males or females before marriage and who afterwards become married shall be null and void.

'Section 1. Be it enacted by the general assembly of the State of Indiana, That if any male or female who now under the law is qualified to execute a will and who, being unmarried, shall execute a will disposing of his or her property or any portion of the same, and who, after the execution of such will, shall become married, then such will executed prior to such marriage shall be null and void.'

It is contended by appellant that the act is ambiguous and that the construction placed on the statute by the court below which upheld the validity of the will, the subsequent marriage of the decedent notwithstanding, would result in a violation of the confidential relationship between husband and wife and as such would constitute constructive fraud and be contrary to public policy; that a literal and strict construction of the statute, as urged by appellee, would lead to injustice not intended by the legislature. The law on this subject is ably stated in the case of Stout v. Board of Commissioners, 1886, 107 Ind. 343, 347, 8 N.E. 222, 224. In that case the court said: 'It is also true that the courts can not extend the plain meaning of a statute by the substitution or addition of words or phrases without encroaching upon the legislative department of the government. Trustees, etc., v. Ellis, 38 Ind. 3. But the legislative intention, as collected from an examination of the whole, as well as the separate parts, of a statute, will prevail over the literal import of particular terms, and will control the strict letter of the statute, where an adherence to such strict letter would lead to injustice, to absurdity, or to contradictory provisions. Mayor, etc., v. Weems, 5 Ind. 547; Busk. Pr. ; Middleton v. Greeson, 106 Ind. 18, ; Miller v. State, ex rel., 106 Ind. 415, .'

Appellant contends that the act should be construed to provide that all wills are made void by subsequent marriage, and that such legislative intent is made clear by two circumstances; (1) by the title to the act; (2) by the fact that classification, as asked by appellee, would be wholly arbitrary and without reason and, therefore, unconstitutional; that it must be assumed that the legislature did not intend the act to be so construed as to make it unconstitutional and, if it is susceptible to a construction which would make it constitutional, it should be so construed.

The following cases for the above propositions are cited by appellant: In State ex rel. Robertson v. Circuit Court of Lake Co., 1938, 215 Ind. 18, 29, 17 N.E.2d 805, 810, the court said: 'In construing statutes, the courts will seek a construction that avoids unconstitutionality.' And in State ex rel. 1625 E. Washington Realty Co. v. Markey, Judge, 1936, 212 Ind. 59, 63, 7 N.E.2d 989, 991, the court said: 'In construing an act, we must look both to the title and the body of the act. We think the title of the act, when considered with the body, gives a clear idea of the intention of the Legislature. * * *' See also McNamara v. State, 1932, 203 Ind. 596, 601, 181 N.E. 512; Garrigus v. Board of Commissioners of Parke County, 1872, 39 Ind. 66.

After examining the title of the act, we cannot say that its language serves either to clarify or restrict the language of the act itself. It describes the act as being applicable to 'wills executed * * * before marriage.' By the terms of the title, it would appear that to make the will void two circumstances must exist; (1) the will must have been executed before marriage; (2) the testator must 'afterward[s] become married.' By reasonable construction, the first limitation might refer to both (a) the time of execution, and (b) the status of testator at the time of execution.

In point of time, the will in controversy was 'executed before marriage' of testator to appellant although, as regarding testator's marital status, it was not 'executed before marriage.' Although testator 'afterward became married,' we cannot say that the title to the act requires a judicial construction different from the literal wording of the act which reads 'who, being unmarried, shall execute a will.'

The undisputed facts are that John L. Grave executed the will in question at a time when he was a married man; that his wife died and afterwards he became married to the appellant. If said second marriage revoked said will, the judgment in this cause must be reversed, otherwise the judgment should be affirmed.

We now consider appellant's second point of contention: Does the ruling made by the court below establish a wholly unreasonable and arbitrary classifications as between the wills of persons who, after the execution thereof, 'shall become married,'--the sole difference in the respective classes of such wills being the married status or unmarried status of testator at the time of the execution thereof.

Is the testamentary position of one who executes a will while married but later becomes unmarried and subsequently marries, different from the position of a person who, 'being unmarried,' executes a will and thereafter marries a second or subsequent time? Without weighing the wisdom of such a classification, it is apparent that some basis of classification does exist. One who is married may be expected to have children, who are the natural subjects of his bounty and for whom society imposes a responsibility for care and support. In the normal course of human conduct, it is anticipated that a father or mother make provision by will for these children against the uncertainties of the future--even as against marriage to a subsequent husband or wife. The same personal and social responsibilities cannot be said to exist with regard to unmarried persons as a class.

Therefore, we cannot say that the classification urged by appellee and supported by the trial court is wholly arbitrary and without reason so as to make the act unconstitutional and to create a presumption that the Legislature intended a different construction.

A legislative classification must be upheld if any state of facts can be conceived that would sustain it. Baldwin v. State, 1923, 194 Ind. 303, 307-308, 141 N.E. 343; In re Walters' Estate, 1940, 60 Nev. 172, 104 P.2d 968, 973.

In support of the ruling of the trial court, the appellee cites the legislative and judicial history, which preceded the act now in controversy. Prior to the enactment of this statute, a will made by an unmarried female was revoked by marriage under an 1852 statute providing: 'After the making of a will by an unmarried woman, if she shall marry, such will shall be deemed revoked by such marriage.' § 5, ch. 11, 2 R.S. 1852. But the mere marriage of a male did not revoke his previously made will. Bowers v. Bowers, 1876, 53 Ind. 430. The Legislature, by Chapter 309 of the Acts of 1913, supra, not only caused the act of marriage to continue to revoke a will theretofore executed by an unmarried female as the law had done before, but also to revoke a will previously executed by an unmarried male.

Insofar as we can ascertain, this statute has never been reviewed by our higher courts, but the former statute of 1852, respecting wills made by females, heretofore quoted, was construed with respect to the effect of a subsequent marriage, on a will made by a woman while she was married in the case of Hibberd v. Trask, 1903, 160 Ind. 498, 67 N.E. 179. The facts in that case were that Anna L. Bickle made a valid will at a time when she was the lawful wife of one William A. Bickle. Thereafter she and William A. Bickle were divorced. Afterwards they were again married. Such will remained in force until her death. It was contended by appellant in that case that her will made under such facts was revoked by operation of § 5, ch. 11, 2 R.S.1852, supra. In holding that such will was not revoked under the circumstances by her subsequent marriage, the court stated, 160 Ind. at page 504, 67 N.E. at page 180: 'The whole subject of the right to make a...