In re Smith's Estate

• Citation: 97 P.2d 677,55 Wyo. 181
• Decision Date: 09 January 1940
• Docket Number: 2130
• Parties: IN RE SMITH'S ESTATE; v. SMITH NAAB ET AL.
• Court: United States State Supreme Court of Wyoming

97 P.2d 677

55 Wyo. 181

IN RE SMITH'S ESTATE;

NAAB ET AL. v. SMITH

No. 2130

Supreme Court of Wyoming

January 9, 1940

ERROR to District Court, Sweetwater County, V. J. TIDBALL, Judge.

Proceeding in the matter of the estate of Jean Poston Smith, formerly Jean Poston, deceased. W. A. Muir, executor named in the last will and testament of Jean Poston Smith, formerly Jean Poston, deceased, filed the will for probate, and Anthony Wayne Smith filed objections and E. W. Naab was appointed guardian of Mary Jo Poston and others, minors. To review a judgment for the objector, E. W. Naab, guardian ad litem of Franklin Poston and others, minors, and the executor bring error.

Reversed with direction.

For the plaintiffs in error, there was a brief by E. W. Naab and W A. Muir of Rock Springs, and oral argument by Mr. Naab.

The will was made in Sweetwater County, Wyoming, and devised property left therein by testatrix at the time of her death. The will should be probated in that county. Sec. 88-207-210 R. S.; Rice v. Tilton, 14 Wyo. 101; Bliler v Boswell, Admr., 9 Wyo. 57; Richards v. Blaisdell (Calif.) 106 P. 732; 23 C. J. 1012; 1 Bancroft's Probate Practice 21, § 12. Modern statutes require administration wherever there is property. 11 Amer. Jur. 476; Mager v. Grima, 8 How. (U.S.) 490; Ellis v. Davis, 109 U.S. 485. In this case, the Wyoming statute, § 88-101, R. S., gives the surviving husband one-fourth of the estate and the minor children three-fourths; under the law of descent in Colorado, the husband would inherit one-half and the children one-half. Wills are construed according to the intent of the testator. 69 C. J. 44, 52; McLean v. Freeman, 70 N.Y. 81, 86; Trust Company v. Egleston, 77 N.E. 989; 69 C. J. 88; In re Little Joe (Wash.) 5 P.2d 995; In re Allen's Will, 181 N.Y.S. 398; Blatt v. Blatt (Colo.) 57 A. L. R. 222; Mount v. Tuttle (N. Y.) 2 L. R. A. (N. S.) 430. The trial court erred in refusing to receive the testimony of W. A. Muir, which would tend to show the intent of the testatrix in devising her property. In re Spitzer's Estate (Cal.) 237 P. 739. The will was executed prior to her marriage to Mr. Smith and while she was a resident of Wyoming. The Wyoming law on revocation applies. Sec. 88-105, R. S. 1931; Canada v. Ihmsen, 33 Wyo. 445. Revocation requires intent. 28 R. C. L. 186; Johnston v. Laird, 48 Wyo. 532; 28 R. C. L. 190. Subsequent marriage does not revoke a will. Noyes v. Southworth (Mich.) 20 N.W. 891; § 69-101, 102, R. S. 1931; 68 C. J. 831, 836, 839. The abolishment of dower has generally abrogated the common law rule. In re Tuller's Will (Ill.) 22 Am. Rep. 164; In re Hunt's Will (Maine) 17 A. 68; Roane v. Hollingshead (Md.) 17 L. R. A. 592; Kelly v. Stevenson (Minn.) 88 N.W. 739; Ward's Will (Wisc.) 35 N.W. 731; Hastings v. Day (Iowa) 130 N.W. 134. The Wisconsin statute is identical with Sec. 88-106 R. S.; M'Anulty v. M'Anulty (Ill.) 11 N.E. 397; Kelly v. Stevenson (Minn.) 56 L. R. A. 754; Hastings v. Day (Iowa) 13 N.W. 134; In re Hunt's Will (Me.) 17 A. 68. The case of Johnston v. Laird involved a marriage annulment and property settlement, thus differing on the facts from the present case, and authorities cited therein are based on different facts. The case of Morgan v. Ireland, 1 Idaho 786, was decided before the territory had a statute on revocation of wills. The apparent inconsistency of the decisions is the result of the diversity of facts in each particular case. The will in controversy should be probated in Sweetwater County, Wyoming.

For the defendant in error, there was a brief by Lewis H. Brown of Rock Springs, Wyoming, and Van Cise, Robinson & Charlton and Robert D. Charlton of Denver, Colorado, and oral arguments by Messrs. Brown and Charlton.

The will was revoked by the subsequent marriage of the testatrix. She was domiciled in Colorado at the time of her death. If there is any jurisdiction in the Wyoming Court, it is a limited one only, and confined to ancillary proceedings. Restatement of the Law, Conflict of Laws, Sec. 306, p. 387; 23 C. J. 1019, 12 C. J. 476; Vogel v. New York Life Insurance Company, 55 F.2d 205; Bishop v. Bishop (N. Y.) 177 N.E. 302; 5 R. C. L. 1014; Payne v. Payne, 39 S.W.2d 208. Under the law of Colorado, the marriage ipso facto revoked the will at the instant of the marriage. C. S. A. 1935, Chapter 176, § 40; In re Matteote's Estate (Colo.) 151 P. 448; 79 A. L. R. 215; Brown v. Scherrer (Colo.) 38 P. 427; 12 C. J. 477; 68 C. J. 827; In re Gailey's Will, 171 N.W. 945; Hollister v. Hollister, 166 P. 940; In re Bate's Will, 5 N.Y.S. (2d) 628; Restatement of the Law, Conflict of Laws, § 307, p. 389; 28 R. C. L., § 4, p. 60. If the will sets forth the intention of the maker, there is no occasion for judicial interpretation. 69 C. J. 43. Section 88-105, R. S. 1931 is the Wyoming Statute of Revocation. The power to make wills is stated in Sec. 88-101, R. S. 1931. The common law is the rule or decision in Wyoming, except as modified by statute. Sec. 26-101, R. S. 1931. Language similar to the Wyoming Revocation statute is by a great weight of authority held to refer to the implied revocations that existed at common law. 68 C. J. 530, p. 826. At common law, the will of a single woman is revoked by marriage alone without birth of children. 68 C. J. 831, § 535; Page on Wills, 2d Ed., § 481; 1 Schouler, 6th Ed., § 639, p. 732; Corporation v. Thompson, 31 Wyo. 264, 225 P. 590. The common law rule was applied in State v. Weekly (Wyo.) 275 P. 122. McNab v. State, 295 P. 278; In re Dragoni, 79 P.2d 465. This court has held that a subsequent marriage of a woman revokes her will. Johnston v. Laird, 48 Wyo. 532, 52 P.2d 1219; Swan v. Hammond (Mass.) 52 Am. Rep. 255; In re Lewis, 71 P.2d 1032; Brown v. Clark, 77 N.Y. 369. Testatrix was presumed to know the law of Colorado because it was her domicile from the date of her marriage until her death. Ward v. Pipkin, 22 S.W.2d 1011.

BLUME, Justice. RINER, Ch. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

Jean Poston was formerly married to one Frank J. Poston, resident of this state. The latter died in this state on November 11, 1925, leaving Jean Poston and their four children as heirs. On November 18, 1927, she made her last will and testament, disposing of her property so inherited to her four children. The will was executed at Rock Springs, in this state, where it was left. The next day she married Anthony Wayne Smith, a resident of Denver, Colorado, and she and her children moved with him to his residence where they continued to reside until her death at that place on October 4th, 1938. W. A. Muir, one of the executors appointed in the will, filed the will in the district court of Sweetwater county in this state, praying that the will be admitted to probate. She left property in this state, consisting of real property and a bank deposit in the Rock Springs National Bank, in this state, in the amount of about $ 22,000. Anthony Wayne Smith, herein called the objector, filed objections to the probate of the will, on the ground that the deceased died a resident of Colorado; that under the law of that state the last will and testament of a person is revoked by subsequent marriage alone, and that that is also true under the laws of this state, namely, under section 88-105, Rev. St. 1931, which, after providing for specific methods of revoking a will, further provides that "nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator." The trial court, finding that the will was duly executed according to the laws of this state, also found that it had been revoked under the clause just quoted, and refused to admit the will to probate for that reason. The petitioner for probate, and the guardian ad litem for the minor children, have appealed from that decision.

1. It is the contention of counsel for the objector that the will of the deceased was revoked by her subsequent marriage, and they believe that we indicated that to be the rule in Johnston v. Laird, 48 Wyo. 532, 52 P.2d 1219. That case involved the will of a man. What we said about a woman's will was but incidental. We made no reference, or scant reference, to the many cases directly bearing on such will, and it would seem that we should scarcely have failed to do so, if we had meant to express our opinion thereon. We mentioned the fact that husband and wife stand on an equal footing under modern laws and conditions, and that, accordingly, if a woman's will were held to be revoked by subsequent marriage alone, it would be just as urgent to hold that to be the rule in the case of a man's will. And we cited some cases so holding. If we had adopted the rule of those cases, that would have furnished good ground for analogical reasoning in this case. But we did not do so, but rested the decision of that case upon different grounds. We think, accordingly, that Johnston v. Laird furnishes no authority for the case at bar, and that we are free to consider this case as one of first impression.

At common law, the will of a woman was ordinarily revoked by her subsequent marriage. 68 C. J. 831. That was first held in Forse and Hembling's Case, 4 Coke 60 b, 76 Eng. Rep 1022, decided about 1588. The reasons for that seem to have been sufficient at that time. A will is in its nature ambulatory; that is to say, it is revocable up to the time of the death of the person making it. If that ambulatory nature is taken away, its essence is destroyed, and with it the whole will. At common law, a woman's legal existence was to a large extent merged in that of her husband. He became entitled, upon marriage, to an interest in her property real and personal, and in part at least, had full control thereof. 30 C. J....