In re Roton's Will

• Decision Date: 28 June 1913
• Parties: In re ROTON'S WILL.
• Court: South Carolina Supreme Court

78 S.E. 711

95 S.C. 118

In re ROTON'S WILL.

Supreme Court of South Carolina

June 28, 1913

Appeal from Common Pleas circuit Court of Lexington County; J. W. De Vore, Judge.

Will of Annie L. Roton, deceased, was admitted to probate. The decree so admitting it was reversed on appeal of contestant to the circuit court, and the executors appeal. Affirmed.

Efird & Dreher, of Lexington, for appellants. N.W. Brooker and John T. Seibels, both of Columbia, for respondent.

WATTS J.

This is an appeal from a decree of his honor, Judge De Vore. The facts of the case show that Annie L. Litner, then a widow, on August 20, 1906, made a will and thereafter married Harris Roton and died in February, 1910, leaving the will in question. Her husband, Roton, her mother, a brother, and sister survived her, but no children. On March 15, 1910, the will was presented to the probate court by the executors and on that day admitted to probate in common form. On October 23, 1911, the brother of testatrix, to whom she had given $10, filed his petition for proof of the will in due and solemn form. In obedience to the order of the probate court the executors filed their summons and petition asking to be permitted to prove the will in due form of the law. The brother of the testatrix alone appeared to contest the will. The probate court admitted the will to probate, holding it valid. From this decree the brother of testatrix alone appealed to the circuit court, and the appeal was heard by Judge De Vore, circuit judge, who reversed the decree of probate court; he holding that the will was revoked by the subsequent marriage of the testatrix. The executors appeal from this judgment, alleging error: (1) In holding that under our statutes the will is revoked by marriage; and (2) in not holding that, even if the will was revocable by marriage, it should not be declared void at the instance of the brother of testatrix.

There is no dispute, and it was conceded at the hearing of this case by appellants' counsel that under the common law the will of a woman, whatever its provisions, was revoked by her subsequent marriage. Section 3570, Code of Laws 1912, is: "If any person making a will shall afterwards marry, and die, leaving his widow or leaving issue of such marriage, unless the will shall have been made in contemplation of marriage expressed on its face, and shall contain provision for future wife and children, if any, it shall be...