In re Walters' Estate

• Decision Date: 15 August 1940
• Docket Number: 3305.
• Citation: 104 P.2d 968,60 Nev. 172
• Parties: In re WALTERS' ESTATE.
• Court: Nevada Supreme Court

104 P.2d 968

60 Nev. 172

In re WALTERS' ESTATE.

No. 3305.

Supreme Court of Nevada

August 15, 1940

Appeal from Second Judicial District Court, Washoe County; B. F Curler, Judge.

Proceeding in the matter of the estate of Caroline Roebling Walters deceased, wherein deceased's will was offered for probate by Robert C. Roebling and another and Paul A. Walters was contestant. From an order admitting the will to probate, the contestant appeals

Affirmed.

Lloyd V. Smith and L. D. Summerfield, both of Reno, for appellant.

Hogan & Hartson, of Washington, D. C., and Brown & Belford, of Reno for respondents.

Harlan L. Heward, of Reno, for minor and absent heirs.

ORR Justice.

This is an appeal from an order of the district court admitting the will of Caroline Roebling Walters, deceased, to probate.

The testatrix, while the wife of one Hagner, on January 27, 1938, at Washington, D. C., made a will providing for the said Hagner and their two minor daughters. On February 27, 1939, she made a codicil to said will revoking the bequest to her husband, Hagner. On May 8, 1939, the testatrix, then a resident of Washoe County, Nevada, obtained a decree of divorce from Hagner. On said May 8, 1939, she married the contestant, Paul A. Walters, also a resident of Washoe County, Nevada.

The testatrix died through accident in Washoe County, Nevada, on July 8, 1939, without having made another will. She left surviving her husband, Walters, and two daughters the issue of her marriage to Hagner, aged eight and two, residing with their father, Hagner, at Washington, D. C. All the estate consists of separate property owned by the testatrix prior to her marriage to Walters.

The question of law presented on this appeal is whether the marriage of said testatrix to Walters and her death revoked her prior will made while she was married to Hagner and in which appellant was not mentioned.

Appellant contends that the said will and codicil were revoked by the marriage of the testratrix to Walters: First, under the terms and provisions of Section 2 of the Wills Act (Sec. 9906, N.C.L.); second, under the terms and provisions of Section 8 (Sec. 9912, N.C.L.); third, under the doctrine that the masculine terms in the statute must be construed to include the feminine; fourth, under what appellant claims to be a constitutional construction of the statute as differentiated from what he claims was an unconstitutional construction placed upon it by the trial court; fifth, under the common law as adopted in Nevada, if there is no statutory provision applicable.

We will dispose of the contentions in the order named.

First. Was the will revoked under the terms of Section 9906, N.C.L., which reads as follows: "Any married woman may dispose of all her separate estate by will, absolutely, without the consent of her husband, either express or implied, and may alter or revoke the same in like manner as a person under no disability may do. Her will must be attested, witnessed, and approved in like manner as all other wills."

Under the common law a married woman could not make a will. In 1862 there was enacted in this state a statute, Laws 1862, c. 61, under Section 2 of which a married woman could make, alter or revoke a will in like manner as a person under no disability might do, subject, however, to the limitation that the making, altering or revocation must be with the formal written consent of the husband. In 1873 said Section 2 was amended to read as above set forth. It will be noted that the limitation as to the written consent of the husband was removed; the mention of common property was dropped, and the word "might" changed to "may". Appellant presents the view that the removal by the Legislature of the limitation as to the making, altering or revocation subject to the consent of the husband, by the 1873 amendment, placed married women in the same position as married men in making, altering or revoking wills relating to separate property, and placed wills of married women, as to revocation, in the same position as those of men and unmarried women possessing the qualifications prescribed by Section 1 of the Act (Sec. 9905, N.C.L.). In other words, appellant construes the words "in like manner as a person under no disability may do" as evidencing the manner in which a will of a person under no disability is to be deemed revoked by implication of law, as well as the way a person may revoke it by a subsequent testamentary instrument or by the other affirmative methods prescribed by statute.

We are unable to agree with that construction. The Legislature dealt with methods of revocation, express and implied, in other sections of the Wills Act (Sections 9912 to 9917, N.C.L., both inclusive). Section 2 of the 1862 Act and Section 9906, N.C.L., which amended it, do not appear to us as being statutes relating to methods of revocation, but are, as is urged by respondent in the following language, which we adopt, "statutes empowering married women to make wills and conferring upon them the ancillary rights of alteration or revocation. The words 'may alter or revoke' are clearly enabling and permissive--not destructive or restrictive. The intention which appellant deduces from these words would have been expressed by the words 'shall be deemed revoked' which were used in the other portions of the Act where the Legislature was providing for revocation by operation of law. It is not reasonable to suppose that had the Legislature intended to provide for such revocation when it enacted Section 9906 it would have used terms from which that intention could be deduced only by highly doubtful construction, when all other sections of the Act dealing with revocation are clear and unambiguous."

The terms "deemed revoked" or "revoked by implication (or operation) of law" mean something different from the term "revoked."

" Revocation is an act done by the party, by which he recalls his will. The statute, therefore, with propriety says, not that marriage revokes, but that it is to be deemed, or considered the same as, a revocation. It is not a revocation, but it has the effect of a revocation". Lathrop v. Dunlop, 4 Hun, N.Y., 213.

"To revoke is to recall, cancel, or set aside, and a revocation can only be by the grantor, licensor, or maker of an instrument granting a right or privilege. *** The statute declares that a subsequent marriage shall be deemed a revocation of a will, which means that the act of the testator in entering into the new relation shall be considered and regarded as a recalling, canceling, or setting aside of his will." Ford v. Greenawalt, 292 Ill. 121, 126 N.E. 555, 557.

An examination of the statutes on wills discloses that the Legislature used those terms in the sense, "revoked" when referring to intentional revocation, and "revocation implied by law" when referring to constructive revocation. See Sections 9912, 9913, 9914, 9915, 9916 and 9917, N.C.L. Had the Legislature intended to provide for revocation by implication in Section 9906, it would not have used the words "may alter or revoke", but would have used the term "deemed revoked", as it did in other sections of the Act. See In re Estate of Lewis, 39 Nev. 445, at page 455, 159 P. 961, 4 A.L.R. 241. The use of the words "may *** revoke *** in like manner as a person under no disability might do" in the 1862 Act referred only to intentional revocation by the act of the maker; and when the words were used in the 1873 amendment they carried the same meaning.

"Where an amendment leaves certain portions of the original act unchanged, such portions are continued in force, with the same meaning and effect they had before the amendment. So where an amendatory act provides that an existing statute shall be amended to read as recited in the amendatory act, such portions of the existing law as are retained, either literally or substantially, are regarded as a continuation of the existing law, and not as a new enactment." 59 C.J. 1097.

The construction contended for by appellant would apply to a will executed by a married woman the same statutory rules of implied revocation as apply to wills executed by men and by unmarried women. To effect the revocation of a man's will by implication three things are necessary: Marriage, failure to mention his wife in the will, and her survival of him. Marriage alone is deemed the revocation of an unmarried woman's will. Circumstances necessary to imply the revocation of a will executed by a "person under no disability" are entirely different in the case of a man than in that of an unmarried woman, and we cannot ascribe to the Legislature an intent to leave the question of the will of a married woman in an uncertain state, when it was definite as to others. Section 9906 was intended to remove the testamentary disability of married women, and in that section the Legislature was not dealing with methods of revocation by operation of law.

The will was not revoked under the terms of Section 9906, N.C.L.

The second proposition advanced by appellant is that the will was revoked under the provisions of Section 9912, N.C.L., which reads as follows: "No will in writing shall be revoked unless by burning, tearing, canceling, or obliterating the same, with the intention of revoking it, by the testator, or by some person in his presence, or by his direction, or by some other will or codicil in writing, executed as prescribed by this act; but nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator."

Appellant's contention is summed up by him in the following language "If the husband or wife share substantially in the estate through dower or curtesy or a substitute therefor,...