In re Estate of Martin

• Decision Date: 25 November 1922
• Docket Number: 22404
• Parties: IN RE ESTATE OF ROBERTSON C. MARTIN. v. SARAH E. MARTIN ET AL., APPELLEES SARAH WILLIAM MARTIN, APPELLANT,
• Court: Nebraska Supreme Court

190 N.W. 872

109 Neb. 289

IN RE ESTATE OF ROBERTSON C. MARTIN.

SARAH WILLIAM MARTIN, APPELLANT, v. SARAH E. MARTIN ET AL., APPELLEES

No. 22404

Supreme Court of Nebraska

November 25, 1922

APPEAL from the district court for Douglas county: CHARLES A. GOSS JUDGE. Affirmed.

AFFIRMED.

Weaver & Giller and Atwood, Wickersham & Hill, for appellant.

William L. Dowling and Baker & Ready, contra.

Heard before LETTON, ROSE, ALDRICH, DAY and FLANSBURG, JJ., REDICK District Judge. ALDRICH, J., dissents.

OPINION

FLANSBURG, J.

This was a proceeding, originally brought by Sarah William Martin in the county court of Douglas county, to probate the will of her deceased husband, under the terms of which she was sole beneficiary. The contestants are the father and mother of the deceased. In both the county court and on appeal in the district court, the probate of the will was disallowed on the ground that there had been a revocation implied by law, as a result of a divorce and property settlement had between proponent and her husband, subsequent to the execution of the will. Proponent brings an appeal here.

Sarah William Martin, the proponent, and Robertson C. Martin, the testator, were married in 1908, and made their home in Omaha. In the forepart of September, 1912, it appears that Mrs Martin went to her mother's home at Montgomery, Alabama. The record does not show that there was, then, any domestic difficulty; nor that Mrs. Martin left her husband with the understanding that she was not to return; nor that a separation or severance of the bonds of matrimony was at that time in the least contemplated. She does testify that after her departure at that time they never again lived together as husband and wife. But when their domestic difficulties began, or what they were, does not affirmatively appear. However, there is in evidence a letter, written by Mr. Martin to Mrs. Martin and mailed about two weeks after she left for Alabama, and in that there is no mention of any separation, nor any intimation of domestic difficulties; but, on the contrary, the letter is written in very endearing terms, as a letter between husband and wife where a happy relation exists and where nothing has come between them. With the letter was inclosed a copy of the will, which is now the subject of this action. It is argued by counsel for proponent that the record shows that the will was made after the parties had agreed to separate, and had in fact separated, knowing that they could not live together longer as husband and wife. We do not believe the record bears out that fact. On the contrary, the record is entirely silent as to any domestic difficulties, or contemplated difficulties, existing between the husband and wife at the time of the execution of the will.

By the terms of the will Mrs. Martin was given all the property of the testator, including "a farm of 160 acres in Stanton county, Nebraska." Immediately after its execution, it was transmitted by the testator to the county judge of Douglas county, where it was placed on file. As has been said, a copy of this will was inclosed in the letter above mentioned and sent to Mrs. Martin, in Alabama.

It appears that Mrs. Martin, after her departure in 1912, continued to live with her mother; that her husband sent her a monthly allowance of from $ 50 to $ 60 and that the parties carried on a correspondence.

In the spring of 1914 Mr. Martin visited his wife at her mother's home, then in Nashville, Tennessee. At that time the record for the first time shows that a divorce was considered. On July 3, 1914, a decree of divorce was entered in favor of the wife. Though no provision was made in the decree for alimony or a settlement of property rights, the parties did, on the same day, enter into a written agreement with one another, wherein it was recited that, whereas a divorce proceeding was pending and a decree would probably be entered, "the following agreement with reference to alimony is entered into:

"Robertson C. Martin shall pay to Sarah William Martin an aggregate sum of $ 2,500; $ 100 of which has heretofore been paid and the balance of which shall be paid at the rate of $ 50 a month upon the first of each and every month, commencing August 1, 1914, and continuing until the full amount of the balance of $ 2,400 has been paid, providing that if Sarah William Martin shall marry before the said full amount of the balance of $ 2,400 is paid, then and in such event the payments which have not accrued theretofore shall cease to be due and payable."

Mr Martin was further required to pay attorney's fees and court costs, and to secure the $ 2,500 payment by a first mortgage on the 160-acre farm in Stanton...