Lansing v. Haynes

• Decision Date: 10 March 1893
• Citation: 95 Mich. 16,54 N.W. 699
• Court: Michigan Supreme Court
• Parties: LANSING v. HAYNES et al.

54 N.W. 699

95 Mich. 16

LANSING v. HAYNES et al.

Supreme Court of Michigan

March 10, 1893

Error to circuit court, Ingham county; Rollin H. Person, Judge.

Alecia J. Lansing presented the will of Garret Y. Lansing for probate, and, the will being duly admitted to probate Geraldine Haynes and others, contestants of the will, bring error. Reversed. M. D Chatterton and Q. A. Smith, for appellants.

Jay P Lee, for appellee.

GRANT J., (after stating the facts.)

The three propositions of the contestants are as follows: (1) That these mutual wills formed a contract, and that the proponent, having revoked her own will, is thereby estopped from claiming under this will; (2) that the deeds and agreement constitute an express revocation of the will; (3) that the will of the deceased is revoked by implication of law on account of the changed relations of the parties.

1. If these wills constituted a binding contract between the parties, that question cannot be litigated in a contest over the probate of either will. The probate court has no jurisdiction to determine such questions. The two questions for that court to determine were: (1) Was the document presented at the time of its execution the last will and testament of the deceased? and (2) had it been revoked?

2. The statute provides that "no will, or any part thereof 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, and by his direction; or by some other will or codicil, in writing, executed as prescribed in this chapter; or by some other writing, signed, attested, and subscribed in the manner prescribed in this chapter for the execution of a will; excepting only that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the conditions or circumstances of the testator." How. St. � 5793. No reference whatever is made in the deeds and the agreement to these wills. They have an important bearing upon the question of an implied revocation, but we do not think that they constitute the express revocation contemplated by the statute.

3. The difficult question is whether the will was revoked by implication. "Implied revocations are founded upon the reasonable presumption of an alteration of the testator's mind, arising from conditions since the making of the will, producing a change in his previous obligations and duties. * * * There is not, perhaps, any code of civilized jurisprudence in which this doctrine of implied revocation does not exist and apply when the occurrence of new social relations and moral duties raise a necessary presumption of a change of intention in the testator." 4 Kent, Comm. 521. See, also, Smith, Prob. Law, 50; 2 Greenl. Ev. � 684; Woerner, Adm'n, 88.

It is contended by the proponent that the only changed relations from which revocation can be implied are the marriage of a feme sole, and the marriage of a man, and birth of issue; and these appear to have been at the common law the two principal reasons for such implication. But this rule was not without exceptions. Will of Ward, 70 Wis. 251, ^[1] and authorities there cited. The revocation must rest upon presumption, not upon intention. Verbal declarations of the testator as to his intentions or understanding are incompetent. Hoitt v Hoitt, 63 N.H. 475, 3 A. 604. The married woman's act is held to have abrogated this rule of the common law as to married women by giving to her the absolute control and disposal of her separate property. Will of Ward, supra. So this court has held that the constitutional provision giving her the right to devise her separate property acquired before marriage, or which she may afterwards acquire by gift, grant, inheritance, or devise, has abrogated this rule. Noyes v. Southworth, 55 Mich. 173, 20 N.W. 891. So the birth of an illegitimate child, recognized and acknowledged by the father, was held to revoke a will made before the birth of the child. Milburn v. Milburn, 60 Iowa, 411, 14 N.W. 204. It is held in Ohio that a divorce obtained by the...