Hastings v. Day
| Citation | 130 N.W. 134,151 Iowa 39 |
| Parties | WILLIAM HASTINGS, Appellee, v. W. R. DAY, Appellant |
| Decision Date | 08 March 1911 |
| Court | United States State Supreme Court of Iowa |
Appeal from Van Buren District Court.--HON. D. M. ANDERSON, Judge.
PROCEEDINGS for the probate of the will of Mary E. Hastings, deceased. Trial was had to the court upon an agreed statement of facts. Judgment admitting the will to probate, and the contestant appeals. Affirmed.
Affirmed.
Newbold & Newbold and J. C. Calhoun, for appellant.
Walker & McBeth, for appellee.
Mary E Hastings died in the month of September, 1909, without living husband or lineal heirs, and leaving a will executed September 25, 1876, by the terms of which William M. Hastings, her stepson, was made the sole beneficiary of her estate. The instrument having been filed for probate, certain collateral heirs appeared and contested the same on the grounds: (1) That after the execution of said will the testatrix contracted a valid marriage with one Cyrus Harlan, who has since died, and that said marriage operated, as a matter of law, to revoke the previous testamentary disposition of her estate. (2) That the making of the will was procured by the fraud and undue influence of William M. Hastings. (3) That the said testatrix was at said date of unsound mind. The cause being reached for the trial, the contestant dismissed the second and third grounds of this contest, and the cause was submitted to the court without a jury upon an agreed statement of facts, which we quote in full as follows:
Agreed statement of facts was filed and signed by the attorneys for both parties and in words and figures as follows:
In the above-entitled cause the contestant hereby dismisses both the second and third grounds of his contest, being contests on the grounds of undue influence and unsoundness of mind. And the cause shall be submitted to and determined by the court upon the said proposed and alleged will and the following agreed statement of facts; and the filing of this agreement shall give the statements hereinafter contained the force and effect, and become a part of the record, the same as if introduced in evidence in the usual manner.
(1) That the alleged will, to which this agreement is attached and which was filed in this court, opened and read by the clerk of this court on the 29th day of September, A. D. 1909, is the true and correct proposed will of decedent, and the same was properly executed and attested on the date mentioned therein, and should be allowed as the last will of decedent, unless revoked by operation of law on the first ground of the contest, namely, that the decedent had contracted a valid marriage after the execution of the said will.
(2) That the said W. R. Day, contestant, is a nephew of said decedent, and if said will is not valid would be one of the heirs at law of said decedent, and is entitled to contest said will; he being the son of a deceased sister of said decedent.
(3) That the said Mary E. Hastings at the time of the execution of the proposed will was the widow of John C. Hastings, who died on or about the 24th day of December, 1875. And that the said Will Hastings named in said will as the sole legatee and executor thereunder is a son of John C. Hastings, and a stepson of the decedent, and is the proponent of said will.
(4) That the decedent and said Will Hastings lived together after the death of John C. Hastings up to the time of the marriage of decedent with Cyrus Harlan.
(5) That on or about the year 1885 the decedent and Cyrus Harlan were legally married and lived together as husband and wife up to the death of said Cyrus Harlan on or about the 3d day of February, 1899.
(6) That no issue was ever born to the said decedent, the maker of said proposed will.
(7) That said decedent died on or about the day of September, A. D. 1909, leaving personal and real property of the value of $ 5,000 or more.
(8) That the proponent offers said will for probate, and the contestant objects thereto, claiming that the said will has been revoked by operation of law by reason of the above facts.
The trial court held that the marriage of the testatrix did not operate as a revocation of her will, and from this ruling and the judgment admitting the instrument to probate, an appeal has been taken.
Counsel for appellant have been diligent in the collection of authorities, and make a very forcible presentation of the view that at common law the marriage of a woman worked the revocation of a will previously made by her, and that as we have no statute abolishing or superseding that rule it should be recognized and given effect by the courts. While it is true, speaking generally, that in the absence of a statute upon a given question or proposition, our courts will recognize and enforce the rules and principles of the common law, it is equally true that they often refuse so to do, where the reasons giving rise to the rule no longer exist, or where the principle sought to be applied is unsuitable to our own social or political conditions, or not in harmony with the policy and objects of our own peculiar institutions. Wagner v. Bissell, 3 Iowa 396; Ex parte Holman, 28 Iowa 88; Pierson v. Lane, 60 Iowa 60, 14 N.W. 90. The common law rule for which appellant contends has certainly never had specific or express recognition in Iowa so far, at least, as appears from our recorded decisions; and before taking that step we should be careful to inquire whether its introduction into our legal system will be in accord with the policy of the state as reflected in its statutes and in the rules of property and property rights which have already been settled by judicial determination.
That there is or may be such a thing as the revocation of a will by implication, growing out of a change of conditions and circumstances, need not here be denied, though the Legislature of this state and the Legislatures of other states have made frequent attempts to abolish, or, at least, to restrict such will within narrow limits. Code, section 3276; Code Supp. 1907, sections 3276, 3279. Before the statute providing for after-born and posthumous children, we held that the birth of a child to a testator after the making of a will worked a revocation (McCullum v. McKenzie, 26 Iowa 510), though why, as an original question, it should have been given any greater effect that to open up the will and permit the after-born child to share in the estate is not easily explainable; but the Legislature having since made provision for the protection of such children by admitting them to share in the testator's estate, the amount of their claims being taken ratably from the devisees and legatees named in the will, the rule of McCullum v. McKenzie is no longer the law of this state.
But counsel say that, admitting all this, we have no statute of analogous character with respect to the effect of marriage upon a will previously made, and that the common law principle which constrained us to that ruling requires us now to say that the marriage of Mrs. Hastings revoked her will. But the logic of the proposition is grounded upon the truth of assumptions we can not admit. It may be...
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