In re Estate of Stark

• Decision Date: 26 September 1938
• Docket Number: Civil 3997
• Citation: In re Estate of Stark, 82 P.2d 894, 52 Ariz. 416 (Ariz. 1938)
• Parties: In the Matter of the Estate of MARY ANN STARK, Also Known as MARY ANN STARK O'HARA, Deceased. FERN ELIZABETH SCHADE, Appellant, v. MAURICE O'HARA, Appellee
• Court: Arizona Supreme Court

82 P.2d 894

52 Ariz. 416

In the Matter of the Estate of MARY ANN STARK, Also Known as MARY ANN STARK O'HARA, Deceased.

FERN ELIZABETH SCHADE, Appellant, v. MAURICE O'HARA, Appellee

Civil No. 3997

Supreme Court of Arizona

September 26, 1938

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment affirmed.

Messrs Minne & Sorenson, for Appellant.

Mr Charles Bernstein and Mr. D. Kelly Turner, for Appellee.

OPINION

LOCKWOOD, J.

Fern Elizabeth Schade, hereinafter called appellant, filed her petition in the superior court of Maricopa county, in which she alleged that one Mary Ann Stark, hereinafter called deceased, on the 18th day of December, 1931, made her last will and testament, and had since died. The usual necessary jurisdictional allegations followed, and appellant asked that the will be admitted to probate, and that letters of administration, with the will annexed, be issued to her. This will was entirely in the handwriting of the testatrix, and in the following language:

"Los Angeles, California,

"December 18, 1931.

"This is my last will. I give, bequeath, and devise to my sister Susie Ellen Hodge, Crawford, Nebraska, in complete and perfect ownership, all my rights and property of every kind and nature, whether real, personal or mixed, wherever situated, appointing her executrix of my estate, without bond and giving her possession thereof.

"(Signed) MARY ANN STARK

"Witness C. T. DeWITT, 3757 E. 6th St.

"Witness: KATHARINE A. DeWITT, 3757 E. 6th St."

Maurice O'Hara, hereinafter called appellee, filed his contest to and in opposition of the probate of the said will, alleging in substance that deceased and appellee were married in Arizona on the 3d day of November, 1933, and ever since that time and up to the death of deceased had resided together as husband and wife; that there were no children born as the issue of said marriage; that the will aforesaid had been revoked by operation of law, for the reason that it was executed before the marriage of deceased and appellee, and that no provision had been made for him either in the will or by marriage contract.

The matter came on for hearing on these pleadings. The minute entries show that certain documentary evidence was offered and a stipulation made as to specified facts, and the matter was then submitted to the court. Thereafter the following judgment was entered:

"This matter coming on regularly for hearing on the -- day of September, 1937,...; all parties announcing they were ready, the Court admitted the stipulation of counsel as to certain facts and received both oral and documentary evidence; the Court -- enters its order, as follows:

"It is further ordered, adjudged and decreed that the instrument purporting to be the last will and testament of Mary Ann Stark, deceased, is void and of no effect; and,

"It is further ordered, adjudged and decreed that the petition for probate of said last will and testament of Mary Ann Stark be, and the same is hereby rejected and denied."

Whereupon this appeal was taken.

There are two questions before us, one of practice and one on the merits. It is urged upon behalf of the appellee that since the record does not show just what evidence was offered, we must follow our rule that when all the evidence is not before this court, we will assume it was such as will sustain the judgment. This, of course, has been for long the rule on appeal in this court. We think, however, it is subject to the qualification that it applies only to the issues raised by the pleadings. The petition for probate of the will alleges its proper execution by deceased on December 18, 1931. The objections to probate admit this, and allege as the only ground of contest that the testatrix married the contestant after such execution, and that he has never been provided for by marriage contract, not is he mentioned in the will. This being the case, the rule above referred to only requires us to assume the facts to be that the deceased executed a will before her marriage, in which no mention was made of her future husband, and that she never provided for him by marriage contract, nor in any other manner. But it does not require us to accept the conclusion of law drawn by the trial court from these facts unless we find it to be the proper one. Maricopa County Municipal Water Conservation Dist. v. Southwest Cotton Co., 39 Ariz. 65, 4 P.2d 369. We, therefore, consider the question as to whether or not these facts, as a matter of law, automatically revoke the will.

The unquestioned rele at common law was that the marriage of a woman revoked a will which was made by her prior to the marriage. 68 C.J. 831, sec. 535, and cases cited. However, this common-law rule has been very generally construed to have been revoked by the various modern statutes which permit married women to dispose of their property, generally referred to as the married women's acts. An example of such a statute is section 2174, Revised Code 1928, which reads as follows:

"Control of separate property of married women; rights and liabilities. Married women shall have the sole and exclusive control of their separate property, and the same shall not be liable for the debts or obligations of the husband, and may be sold, mortgaged, conveyed, or bequeathed by them as if they were unmarried. Married women of the age of twenty-one years and upwards shall have the same legal rights as men of the age of twenty-one years and upwards, except the right to make contracts binding the common property of the husband and wife, and are subject to the same legal liabilities as men of the age of twenty-one years and upwards."

This section has appeared in substance in our law ever since 1871, and we have held that it gives a wife perfect freedom in the control, use and enjoyment of her separate property, and makes her wholly independent of her husband in regard thereto. Woffenden v. Charauleau, 1 Ariz. 346, 25 P. 662; Id., 2 Ariz. 91, 11 P. 117. Since under the common law marriage did not revoke a will previously made by the husband, it would seem that under the section as above set forth the same rule would apply to the wife and that the will in question was not revoked by the marriage of deceased and appellee. In fact, it is admitted by the latter that this would be true in the absence of further legislation, but he contends that this rule has been changed by a proviso in section 3638, Revised Code 1928, when interpreted in the light of section 3040, Revised Code 1928. These sections, so far as material to this case, read as follows:

"§ 3638. Revocation; marriage. No will made in conformity with the preceding section, nor any clause or devise therein, shall be revoked except by a subsequent will codicil or declaration in writing executed with like formalities, or by the testator destroying, canceling or obliterating the same or causing it to be done in his presence; provided, that if after making a will the testator marries, and the wife survive the testator, the will shall be presumed to be revoked unless provision has been made for her by marriage contract, or unless she is provided for in the will, or in such way mentioned therein as to show an intention not to revoke such provisions, and no other evidence to rebut the presumption of revocation shall be received."

"§ 3040. General rules of construction. In the construction of the laws of ...