In re Adler's Estate

• Decision Date: 12 April 1909
• Citation: 100 P. 1019,52 Wash. 539
• Court: Washington Supreme Court
• Parties: In re ADLER'S ESTATE. [d] v. ADLER. ADLER et al.

100 P. 1019

52 Wash. 539

In re ADLER'S ESTATE. ^[d]

ADLER et al. v. ADLER.

Supreme Court of Washington

April 12, 1909

Appeal from Superior Court, King County; George E. Morris, Judge.

In the matter of the estate of Alfred Adler, deceased. From on order granting the petition of Hannah Adler for the granting of letters of administration, Louis Adler and others appeal. Reversed, with directions.

Godman & Embree, for appellants.

McClure & McClure and Edwin C. Ewing, for respondent.

CHADWICK J.

On June 30, 1905, Alfred Adler, then a resident of the state of New York, made his last will and testament. The will disposed of his entire estate, estimated in value to be about $250,000. He died September 16, 1907, in New York, leaving property in that state, and in King county, Wash. Among other bequests made by the testator was the following: 'Seventh. I give and bequeath to my friend, Hannah Harttung, at present residing at No. one hundred four West Eighty-fifth street, in the borough of Manhattan, city and state of New York, the sum of thirty-five thousand dollars ($35,000), free and clear of any inheritance or transfer tax thereon absolutely, which legacy I direct shall be paid to her within four months after my death. It is my wish that the said Hannah Harttung shall consult with and accept the advice of my friend, Jacob M. Frank, in the investment of this sum of money so that the same may be safely and properly invested and I urge her to use the income and not the principal unless the use of some of the principal should become absolutely necessary, but my wishes and advice herein expressed are not mandatory and shall not in any manner affect the absolute character of the bequest herein made to her. In case of the death of the said Hannah Harttung before me, said bequest shall lapse, and in that event, and not otherwise, I give to her sister, Dorris Harttung, the sum of ten thousand dollars ($10,000), free and clear of any inheritance or transfer tax or charge thereof. I direct my executors in either event to pay the transfer or inheritance taxes above referred to in addition to the bequest in this paragraph made.' A few hours before his demise, Alfred Adler married Hannah Harttung. The will was thereafter admitted to probate by order of the surrogate's court of New York county, N. Y., and, pending proceedings therein, Hannah Adler, the respondent, was paid a legacy of $35,000, and as the widow of the testator has received her dower interest in the real property of the testator in the state of New York. On June 4, 1908, respondent filed her petition in the superior court of King county, praying that letters of administration upon the estate of her deceased husband be issued to some disinterested person resident of the state of Washington. In her petition she set up the making of the will theretofore admitted to probate in the state of New York, the marriage of the testator to the respondent subsequent to its execution, the consequent revocation of the will by the marriage, and the intestacy of the deceased as to his estate in the state of Washington. Thereafter appellant Benjamin Lichtenberg filed a petition in the same court, setting up the will and its probate in the state of New York, and praying that it be admitted to probate, and that letters of administration with the will annexed be issued to him as the nominee of the executors of the will. This petition was afterwards supplemented by the petition of Louis Adler and Max Adler, brothers of the deceased, praying that the petition of appellant Lichtenberg be granted. Issues were drawn between the parties, and, after trial, the court rendered its decision, holding that the legacy given by the deceased to Hannah Harttung, now Hannah Adler, was given to her because of friendship existing between them, and was not given in contemplation of marriage, and that the will was by virtue of the marriage revoked as to all property in the state of Washington. The prayer of respondent's petition was granted, and E. E. Morris was appointed a general administrator of the estate. From this order Benjamin Lichtenberg, Louis Adler, and Max Adler have appealed.

Counsel have prepared elaborate briefs, in which they have traced the law on the subject of implied revocation of wills from the civil law down through the common law and through the various judicial interpretations put upon statutes as we find them construed in the text of reported cases. In the case of In re Petridge's Will, 47 Wash. 77, 91 P. 634, will be found a recitation of the history of legislation upon the subject of revocation of wills by marriage, as it has occurred in this state. In that case we held that the will of a woman, who had married after executing a will and thereafter died, was revoked by the marriage, and the husband, by reason of his heirship under the general rules of descent, was entitled to letters of administration and to his distributive share of the estate. In that case the will was made without mention of the person who thereafter became the husband of the deceased. The statute (Ballinger's Ann. Codes & St. § 4598 [Pierce's Code, § 2344]) upon which this case depends was construed to the extent of holding that the word 'testator' should be read 'testatrix,' in the event that a will had been executed by a woman under like circumstances as provided in the statute. It was the rule at common law that, if one having sufficient capacity made his will and thereafter married, the will was not revoked unless issue was born to the union. This rule was based on the theory that no reason existed for revocation as to the wife, for she was fully protected by her right of dower; whereas, children born of the marriage took as heirs, and would be protected in the rights incident to heirship, unless the intent of the testator to exclude them was clearly shown by the will itself. With the abolition of dower and tenancy by the curtesy in many of the states of the Union, the reason of the rule failed and courts began to apply the reason rather than the letter of the law; and a line of authority, which may not improperly be called the common law in America, holding that the wife having no dower interest, and being under the statute of descent an heir to the husband, came within the rule of the common law which revoked the will as to issue, and for the like reasons the will was held to be revoked by marriage. Precedent to any judicial interpretation, some states have, by legislative enactment, anticipated the possibility of confusion and enacted laws fixing conditions, the concurrence of which operates as a revocation of the will.

Many decisions based upon the common law, or upon statutes declaring, modifying, and enlarging the common-law rule, have been cited. From them may be gleaned the following principles: (1) That the will is revoked by subsequent marriage; (2) that the will is revoked in the event of subsequent marriage and issue born; (3) that the will is revoked in the event of subsequent marriage, unless it clearly appears from the will itself that the intention of the testator was otherwise; (4) that the will is revoked unless provision be made for the wife; (5) that the will is revoked, unless it appears on the face of the will that the provision for the wife was in fact made in contemplation of marriage. These principles have been applied in one way or another in the following cases: 'Brush v. Wilkins, 4 Johns. Ch. (N. Y.) 506; Morgan v. Ireland, 1 Idaho, 786; Brown v. Scherrer, 5 Colo. App. 255, 38 P. 427; Edwards' Appeal, 47 Pa. 144; Walker v. Hall, 34 Pa. 483; Deupree v. Deupree, 45 Ga. 416; Corker v. Corker, 87 Cal. 643, 25 P. 922; Byrd v. Surles, 77 N.C. 435; McAnnulty v. McAnnulty, 120 Ill. 26, 11 N.E. 397, 60 Am. Rep. 552; In re Toepfer, 12 N.M. 372, 78 P. 53, 67 L. R. A. 315; In re Larson's Estate, 18 S.D. 335, 100 N.W. 738; Tyler v. Tyler, 19 Ill. 151; Ingersoll v. Hopkins, 170 Mass. 401, 49 N.E. 623, 40 L. R. A. 191; Duryea v. Duryea, 85 Ill. 41; Am. Board of For. Missions v. Nelson, 72 Ill. 564; Ellis v. Darden, 86 Ga. 368, 12 S.E. 652, 11 L. R. A. 51. In a review of the cases, we find none based on a statute like our own with the fact concurring as we have it in the case at bar. Section 4598, Ballinger's Ann. Codes & St. is as follows: 'If, after making any will, the testator shall marry and the wife shall be living at the time of the death of the testator, such will shall be deemed revoked, unless provision shall have been made for her by marriage settlement, or unless she be provided for in the will, or in such way mentioned therein as to show an intention not to make such provision, and no other evidence to rebut the presumption of revocation shall be received.' It will be seen by those who are inclined to follow the cases that our statute is a wide departure from the common law as well as the theories usually advanced to sustain that rule, and that it differs from the statutes of any other state, at least in so far as they have been construed in the decisions. As, for instance, the case of Ingersoll v. Hopkins. The testator left a legacy to one Mary Alice Peyton, whom he afterwards married, and, having died without changing his will, the court held that, inasmuch as there was nothing in the will to indicate that it was made in contemplation of marriage, the will was revoked. The decision could not have been otherwise, for it was controlled by a statutory provision which is as follows: 'The marriage of any person shall act as a revocation of any will made by such person previous to such marriage unless it shall appear from the will itself that the will made in contemplation of such marriage'--a requirement wholly lacking in our statute. It can hardly be contended--in fact it is not...