Hoy v. Hoy

• Citation: 48 So. 903,93 Miss. 732
• Decision Date: 05 April 1909
• Docket Number: 13,908
• Court: United States State Supreme Court of Mississippi
• Parties: CHLORA HOY v. LEROY HOY

48 So. 903

93 Miss. 732

CHLORA HOY v. LEROY HOY

No. 13,908

Supreme Court of Mississippi

April 5, 1909

FROM the chancery court of Yazoo county, HON. G. GARLAND LYELL Chancellor.

Chlora Hoy, appellant, was complainant in the court below; Leroy Hoy, appellee, was defendant there. From a decree in defendant's favor the complainant appealed to the supreme court. The facts are fully stated in the opinion of the court.

Affirmed.

E. L Brown, for appellant.

Implied revocations are still permissible under our statute, which is a reproduction of the English statute, and is the same as it has been since 1821, Hutchinson's Code, 649; Garrett v. Dabney, 27 Miss. 335; Jones v. Moseley, 40 Miss. 261. There is no change in our statutes with reference to the making and revocation, operation and effect of wills since these cases, except as to the power of women to make them, and the rights of husband and wife under the wills of cacti other.

There is scarcely any diversity of opinion upon the question of whether or not a statute like ours permits implied revocations.

At common law, the revocation of a man's ante-nuptial will was implied from his marriage and the birth of issue provided, it disposed of substantially all his property and was not made in contemplation of marriage. If made in contemplation of marriage, the implication did not arise from the occurrence of the two, because that fact showed that he then intended that it should remain his will, notwithstanding these new relations, obligations and duties. If not made in contemplation of marriage, still it is not revoked upon marriage alone, because, in the last analysis, the wife could not inherit any part of the husband's property, the object of the new relations, obligations and duties would not be benefited by the revocation, which would, therefore, be fruitless. The course of descent, until the birth of issue remained the same as when the will was executed, and there is no room for the implication that the objects of his affection, which would be benefited by the revocation, were his then heirs rather than his legatees. Concretely, the widow got no more and no less by the revocation. If not made in contemplation of marriage, but disposed of practically the entire estate, the revocation was implied from the birth of issue, not because, otherwise, the issue would be unprovided for, but because the law presumes that it was not his intention that his child should be unprovided for. Some of the judges rested the implication upon the idea that at the time the will was executed, it was a "tacit condition annexed to the will that the testator did not then intend that it should take effect, if there should be a total change in the situation of his family, such as is wrought by the subsequent marriage and the birth of issue" while others placed it upon the ground of a "presumed alteration of the testator's intention, arising from, and occasioned by new moral duties, obligations and relations." Chancellor Kent, Brush v. Wilkins, 4 Johns. Ch. 506, the leading case in this country.

We do not see any practical deduction to be made from consideration of the two theories, upon which the rule was based, the one adopted by Lords Kenyon and Ellenborough or the one adopted by Lord Mansfield, and as Chancellor Kent thinks, the civilians. Each rests upon the intention of the testator, the essence and soul of every will. The difference is one of time, and not of reason for the rule, nor one of consequences to survivors. Brush v. Wilkins, supra.

Just here, it is important that the court should not, as do some of the courts and as did the chancellor and the counsel for appellee in the court below, confound two different propositions. The implied revocation did not take place because, but for the revocation, the child would have been unprovided for, but because it was presumed that the testator did not intend such condition. The difference is that the law presumes that he did not intend, rather than that he did intend that his child should be left unprovided for, and the implication arises upon the presumed intention that the instrument should not be his will at the time of his death. The difference between the implied revocation in the case of issue and no revocation in case of marriage alone is the difference between a fruitful and a fruitless implication of the law, besides the fact that, by the execution of a will, the testator evinced his intention as between his then heirs and his legatees, and his affection for subsequently born brothers, nephews, nieces, and so on, was not supposed to be sufficiently potent to have moved him in the first instance or subsequently altered his opinion, as evinced by his will. Brush v. Wilkins, supra.

Chancellor Kent, by way of tracing the proposition to its source and stating its qualifications, gives quite all of the learning on the subject, and his opinion is the leading case in this country, but we desire to call especial attention to his statement of what was held in Sheath v. York by Sir William Grant, which is also frequently referred to and approved by other courts in this country, as a correct qualification of the general rule. That case holds the proposition that, where a widower, with a son and a daughter, devises his real and personal estate, marries again and has a second daughter, his will is revoked as to the personality, but not as to the realty, because the revocation would let in the subsequent child, as to the personalty, but not as to the realty. In other words, in so far as the revocation might be fruitful, not fruitless, it is held to have taken place, if there was ground for the implication, based either upon Lord Kenyon's or Lord Mansfield's theory.

Kent also shows that Lord Ellenborough, in Kenebel v. Scrofton, implied in his opinion there that in order that the revocation take place the will must have disposed of the entire estate, and to the "exclusion and prejudice" of those unprovided for, one of whom could not be the wife, because she was not prejudiced by the will, or benefited by the revocation. As-to her, the revocation would be fruitless, as in the case of Sheath v. York, the revocation as to the land would be fruitless to the daughter, the son being entitled thereto, even after a revocation.

Chancellor Kent, in speaking of the case of Johnson v. Johnson, decided by Sir John Nicholl in 1817, shows the bent of mind to be in favor of holding that marriage alone would work a revocation, if thereby the wife would be let in, but was deterred from so announcing upon the principle that the certainty of the law would be maintained by holding to the settled rules of common law, all of which of course was dictum because then the wife did not inherit under the law of New York.

Upon a moment's reflection we know that the common law rule was not based upon the law of primogeniture. Had it been, the rule would never have been any part of the law of any state in this country, because the law of primogeniture never was in force here; the maxim cessante ratione legis, cessat et ipsa lex would have forbidden the rule here. A moment's reflection shows that it was not that dower was considered "sufficient provision" for the widow which formed any basis of the rule, but that dower was all she would get, sufficient or insufficient, revocation or no revocation, and that she got at all events. The rule was not based upon sufficiency or insufficiency of dower, in so far as marriage, under it, would not work a revocation, but upon the utter folly and futility of a revocation, which gave the object of the implication no more and no less. The revocation would have been bootless and silly, but not so under our law, now that the wife can inherit, just as child could at common law. Besides, if the English did think dower sufficient, and that was the reason of the rule, our law deems it insufficient, for she may inherit all her husband's estate. Is the provision of the law that she may not be entirely disinherited any mere a provision for her than that she may take all

Nor was the implication dependent upon the birth of a son, or some of the cases stated, as shown by Sheath v. York, supra, nor upon any absolute right of an heir, for the eldest son could be disinherited. Some of the cases we will cite in support of our contention, remark the contrary of these principles, but the ground of decision in each case is that by marriage, the wife becomes heir of her husband, or he heir of her.

By way of laying foundation for the citation of some authorities involving the revocation of ante-nuptial wills of women, and before coming to the proposition directly decisive of this case, we may state that at common law the ante-nuptial will of a woman, not disposing of her separate estate with reference to which she was empowered to make a will by the instrument creating it, was revoked by implication upon her marriage, because, by the marriage contract, her husband was invested with the ownership of her personal property, and the income from her realty, as also the estate by curtesy in the event of issue (Garrett v. Dabney, 27 Miss. 335), and for the further reason, and the one most generally assigned, that the marriage took away the testamentary capacity of the woman and thereby destroyed the ambulatory nature of a will, which was its essence, and without which, the instrument could not be a will, (Swann v. Hammond, 138 Mass. 45), she being powerless, under coverture, to make another, alter or revoke that one.

At common law, the interest of the wife in the estate of her deceased husband was that of dower in her paraphernalia, both of which she took in virtue of the marriage contract, and not by inheritance. She could inherit nothing from him. She took thus...