Herzog v. Trust Co. of Easton

• Decision Date: 27 January 1914
• Citation: 67 Fla. 54,64 So. 426
• Parties: HERZOG v. TRUST CO. OF EASTON et al.
• Court: Florida Supreme Court

64 So. 426

67 Fla. 54

HERZOG v. TRUST CO. OF EASTON et al.

Florida Supreme Court

January 27, 1914

Appeal from Circuit Court, Duval County; George Couper Gibbs, Judge.

Petition to the county judge by Clara E. Herzog against the Trust Company of Easton and others, praying that the record of the will of Charles Herzog, deceased, be set aside and revoked. From a decree of the circuit court affirming the sustaining of a demurrer to the petition, plaintiff appeals. Affirmed.

Syllabus by the Court

SYLLABUS

As the statutes afford no rule for determining by what 'act and operation of law' a will of real estate may be revoked the rules of the common law must be applied.

At common law marriage alone did not cause a revocation by operation of law of a prenuptial will of a man; the wife having her dower rights notwithstanding the will.

Under the laws of this state the wife's statutory dower rights in her husband's property are not only superior to the husband's will, but those statutory dower rights are more liberal to the widow than were the common-law dower rights.

As a widow is liberally provided for by her statutory rights in her husband's estate, which she may have notwithstanding the execution of a will by a husband, whether executed before or after the marriage, there is no good reason for a judicial change of the common-law rule that marriage alone does not cause a revocation of a man's will, when the rule has not been changed by statute.

COUNSEL Kay & Doggett, of Jacksonville, for appellant.

Marks Marks & Holt, of Jacksonville, for appellees.

OPINION

WHITFIELD J.

Clara E. Herzog presented to the county judge of Duval county Fla., a petition alleging, in effect, that in September, 1907, Charles Herzog, a nonresident of this state, made his last will and testament, disposing of all his property; that on August 18, 1908, said Clara and Charles were married, and they continued as husband and wife till the death of Charles, March 15, 1911; that the will executed in 1907 was, after the death of the testator, admitted to record in Duval county, it having previously been probated in Pennsylvania; and there were no other heirs of said Charles Herzog at the time of his death except his said wife, Clara; that said will should not have been probated, as it is void because made before his marriage, and no provision whatever having been made in the will for the said wife, Clara. It was prayed that the record of the will be set aside and revoked. A demurrer to the petition was sustained, and the petition denied by the county judge. This action was affirmed by the circuit court, and an appeal was taken to this court as allowed by law.

The question to be determined is whether the marriage of a man by operation of law revokes a will previously made by him not in contemplation of marriage, where no child is born of the marriage, and he dies leaving no children, but a widow. Wills of real estate may be revoked 'by the act and operation of law.' Section 2273, Gen. Stats. of 1906. As the statutes afford no rule for determining by what 'act and operation of law' a will of real estate may be revoked, the rules of the common law must be applied. Colcord v. Conroy, 40 Fla. 97, 23 So. 561; Easterlin v. Easterlin, 62 Fla. 468, 56 So. 688, Ann. Cas. 1913D, 1316.

At common law marriage alone did not cause a revocation by operation of law of a prenuptial will of a man; the wife having her dower rights notwithstanding the will. 40 Cyc. 1200; Hoy v. Hoy, 93 Miss. 732, 48 So. 903, 25 L. R. A. (N. S.) 182, 136 Am. St. Rep. 548, 17 Ann. Cas. 1137; Hulett v. Carey, 66 Minn. 327, 69 N.W. 31, 34 L. R. A. 384, 61 Am. St. Rep. 419. See, also, notes in 80 Am. Dec. 517, and 28 Am. St. Rep. 359.

Under the laws of this state the wife's statutory dower rights in her husband's property are not only superior to the husband's will, but those statutory dower rights are more liberal to the widow than were the common-law dower rights.

The statutes provide that, 'when any person shall die intestate, or shall make his last will and testate and not therein make any express provision for his wife by giving and devising unto her such part or parcel of real and personal estate...