Johnston v. Laird

• Decision Date: 10 December 1935
• Docket Number: 1910
• Parties: JOHNSTON v. LAIRD
• Court: Wyoming Supreme Court

52 P.2d 1219

48 Wyo. 532

JOHNSTON v. LAIRD

No. 1910

Supreme Court of Wyoming

December 10, 1935

APPEAL from the District Court, Washakie County; P. W. METZ, Judge.

Proceedings by L. E. Laird as Guardian of the estate of Daisy Wilkinson legatee, insane person, for the probate of the will of William G. Johnston, deceased. Heard on objections and contest of the will by Winifred Johnston, widow of decedent. From a judgment sustaining the objections and contest of the will, the proponent appeals.

Affirmed.

For the appellant there was a brief and oral arguments by C. H Harkins and D. J. Harkins, of Worland.

The court erred in holding that the will was revoked by operation of law, due to the changed conditions and circumstances of the testator, and in denying probate of the will. The purpose of Section 88-103, R. S., is to preserve the revocation of wills by implication as at common law, and we are therefore governed by the common law rules relative to revocation by implication. Swan v. Hammond, 138 Mass. 45, 52 Am Rep. 225; Vanek v. Vanek, (Kan.) 180 P. 240. Revocation at common law was restricted to cases where testator married and there was birth of issue after the date of the will. In re Estate of Brown, 139 Iowa 219; Vanek v. Vanek, supra; Re Jones Estate, (Pa.) 69 L. R. A. 940; Wogan v. Small, 11 Serg. & R. 141; Card v. Alexander, 40 Am. Rep. 187; Baacke v. Baacke, (Nebr.) 69 N.W. 303. The earliest case we have upon the question of divorce and property settlement is that of Lansing v. Haynes, 54 N.W. 699. This was followed in a measure by In re McGraw's Estate, (Mich.) 199 N.W. 686. The statutes Section 88-101 and 88-2904 make substantial provision for the surviving widow of a deceased person, even though there be a will devising his property to another person. There is no necessity for changing the common law rule. Hoy v. Hoy, 136 A. S. R. 548; Hulett v. Carey, (Minn.) 34 L. R. A. 384; Herzog v. Company, (Fla.) 64 So. 426. The only evidence of a property settlement in the case is the order requiring William G. Johnston to pay his former wife the sum of $ 2,000.00. All of the property mentioned in the decree belonged to the wife and stood in her name at the time of the decree. There was evidence that William G. Johnston was assessed on property at a valuation exceeding $ 7,000.00 in March, 1920. On the date of the will, the parties had been married six and one-half years and the beneficiary named therein had been insane for six months and confined in the state asylum. She was in the asylum at the time of the annulment of the marriage. The annulment decree was procured on the ground that the wife was insane at the time of her marriage to petitioner. The fact that he made a will making his wife sole beneficiary after her confinement in the state asylum, coupled with the fact that he did not make a new will, strongly indicates that he intended the will to remain in effect, having in mind perhaps the provisions made for widows by the Wyoming statutes. The court also erred in directing that the respective parties pay their own costs. The costs, including attorney's fees, we submit, should abide the final disposition of the case, and should be paid out of the estate. Sec. 88-914, R. S. In re Bielenberg's Estate, 26 L. R. A. (N. S.) 757.

For the respondent there was a brief and an oral argument by Noel Morgan, of Worland.

Whether facts show subsequent changes in the condition of the testator that would revoke his will by implication, must be determined from the circumstances of each particular case. Baacke v. Baacke, (Nebr.) 69 N.W. 303. A divorce coupled with a property settlement are such changed conditions and circumstances, as will work an implied revocation of a will previously executed. Lansing v. Haynes, (Mich.) 54 N.W. 699; Wirth v. Wirth, (Mich.) 113 N.W. 306; Donaldson v. Hall, (Minn.) 16 A. & E. Ann. Cases 541; Will of Battis, (Wis.) 139 Am. St. Rep. 1101; Re Bartlett's Estate, (Nebr.) 190 N.W. 869; Re Martin's Estate, (Nebr.) 190 N.W. 872; Pardee v. Grubiss, (Ohio) 171 N.E. 375; Re Gilmour's Estate, (N. Y.) 260 N.Y.S. 761; 40 Cyc. 1205. In two cases decided in Western States it was held that the marriage of the testator subsequent to the execution of the purported will, constituted a change in the condition and circumstances of the testator that would work a revocation of the will previously made. Brown v. Scherrer, (Colo.) 38 P. 427; Re Teopfer's Estate, (N. M.) 78 P. 53. It has also been held that divorce alone is sufficient to revoke a will made in favor of the divorced wife. Re McGraw's Estate, (Mich.) 199 N.W. 686. Contra, Re Jones Estate, 3 A. & E. Ann. Cas. 221; Re Brown's Estate, 117 N.W. 260. The guardian is estopped from denying that any property settlement was made at the time of the decree of annulment. 21 C. J. 1206. The lapse of time between the annulment of the marriage and testator's death is immaterial in view of the property settlement. The court did not err in refusing to assess costs and attorney's fees to the estate of decedent. Sec. 88-914, R. S. We contend that all three of the changed conditions and circumstances of the testator in this case worked an implied revocation of the will of William G. Johnston.

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

OPINION

BLUME, Justice.

On August 17, 1912, William G. Johnston, hereinafter referred to as the testator, married Daisy Wilkinson, hereinafter referred to by that name. On August 5, 1918, the latter was adjudged insane and was committed to the insane asylum at Evanston, Wyoming, where she has remained ever since. On February 3, 1919, the testator made his will, which, aside from the signature and the clause signed by the witnesses, reads as follows:

"In the Name of God, Amen! I, William G. Johnston, being of sound mind and memory, but knowing the uncertainty of human life, do now make and publish this my last will and testament, that is to say: I give, devise and bequeath to my wife (Daisy W. Johnston), Evanston, Wyo. all my property both real and personal. I hereby nominate and appoint R. D. Gassner executor."

On July 2, 1920, the marriage between the testator and his then wife was annulled in an action brought by him on the ground that she was insane at the time of their marriage. The court in the decree awarded to Daisy Wilkinson the home in which she and her then husband had resided, as well as other real property situated in Worland, Wyoming, and the court further directed that the testator should pay to the guardian of Daisy Wilkinson the sum of $ 2000, and that "upon the payment of this sum the plaintiff William George Johnston be decreed to be free and clear from all claims by and on behalf of said Daisy Wilkinson of every nature and kind whatsoever." It is agreed between the parties that the sum of $ 2000 above mentioned was paid as directed by the court. On September 7, 1920, the testator and Winifred Johnston, hereinafter referred to as the widow of the deceased, were married, and this marriage subsisted until the death of the testator, which occurred on December 17, 1932. L. E. Laird, guardian of Daisy Wilkinson, filed the last will and testament above mentioned for record, to which the widow of the testator filed her objections, and on may 2, 1934, the trial court entered a decree sustaining the objections filed, and held that the last will and testament above mentioned was revoked by operation of law, due to the changed conditions and circumstances of the testator, and that the petition for the probate of the will above mentioned should be denied. From the decree entered accordingly the guardian of Daisy Wilkinson has appealed to this court.

1. There was no specific revocation of the will in question; if there was any, it was by implication. Chancellor Kent, in volume 4, 521, of his Commentaries, states that "there is not, perhaps, any code of civilized jurisprudence in which this doctrine of implied revocation does not exist and" is applied "when the occurrence of new social relations and moral duties raises a necessary presumption of a change of intention in the testator." And our statute (Sec. 88-105, Rev. St. 1931), after providing for specific methods of revocation, contemplates the application of the foregoing rule by stating "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 specific change of condition or circumstances which shall have that effect are not stated, but the statute doubtless contemplates that we should follow the provisions of Section 26-101, Rev. St. 1931, which states, in brief, that the common law of England, as modified by judicial decisions, and by statutes to the fourth year of James I (1607) shall be the rule of decision in this state when not inconsistent with the laws thereof. It is contended that marriage alone has the indicated effect, or if not, then at least in conjunction with the other changes shown in this case. We shall first direct our attention to the fact of marriage alone. Implied revocation of a will was not recognized at common law up to and including the reign of James I. Overbury v. Overbury, 2 Show. 242, 89 Engl. Rep. 915, decided in the thirty-fourth year of Charles II (1694), seems to be the first decision relating to this subject. Johnston v. Johnston, 1 Phil. 447, 161 Eng. Rep. 1039. Hence we must decide this case in accordance with the decisions subsequent to the time of James I, in so far as not inconsistent with the laws of this state, and the decisions which must govern us, to the extent mentioned, are not only the English decisions commencing with the year 1694, but other decisions as well, comparatively recent though they may be, and we are at...