Mackevich's Estate, In re, 6955
| Decision Date | 27 February 1963 |
| Docket Number | No. 6955,6955 |
| Citation | 93 Ariz. 129,379 P.2d 119 |
| Parties | In the Matter of the ESTATE of William W. MACKEVICH, aka Witold Mackevich, and aka William Mackevich, deceased. Raymond YVOSKIS, Appellant, v. Andromeda MACKEVICH, Appellee. |
| Court | Arizona Supreme Court |
Charles Christakis and Peterson, Sullivan & Estrada, Phoenix, for appellant.
Cunningham, Carson & Messinger, Phoenix, for appellee.
This is a will contest. The proponent of the will is the decedent's nephew, the contestant his surviving spouse. The issues were tried to the court, and judgment was entered in favor of the wife, appellee in this court. The lower court ruled that decedent's will was revoked by operation of law as a result of his subsequent marriage to the appellee.
The facts are these: In 1952 William or Witold Mackevich, the deceased, made a will naming his then wife Sarah as primary beneficiary and executrix and naming his nephew, Raymond Yvoskis, the proponent-appellant, as secondary beneficiary and alternate executor. Sarah predeceased William by about two years. Shortly after Sarah's death, William met the appellee, Andromeda, and a courtship of a year and a half's duration ensued. In contemplation of their decision to marry, William and Andromeda contacted a real estate broker with whom Andromeda was acquainted the requested that he draw for them an agreement to assure each would continue in the ownership of his or her separate property in the event their impending marriage resulted in a divorce. 1 The following was produced:
One-half shall go to the heirs of the deceased person, and One-half go to the surviving spouse;
All real property acquired during this marriage and all personal property owned at the time of death shall go to the survivor of this union, and
Should this marriage fail and end in a divorce, then all properties held personally before this marriage shall be retained by such person as it were before marriage and that there will be no unfair advantage taken by either party in any circumstances.'
This instrument was signed by William and Andromeda and acknowledged before the realtor-draftsman, who was also a notary public.
On October 24th, 1957, William and Andromeda were married. About six weeks after the marriage the couple was involved in an automobile accident. William died from injuries sustained in his accident on January 12, 1958.
Andromeda petitioned for letters of administration and the appellant petitioned for letters testamentary and for probate of the 1952 will. At a consolidated trial the court ruled in favor of Andromeda, holding that the will was revoked by operation of A.R.S. § 14-134. 2 The court further held that the agreement made by William and Andromeda three days prior to their marriage violates A.R.S. § 25-201 3 and was therefore void.
The appellant contends that the agreement of October 21, 1957 is a valid prenuptial agreement or marriage contract which makes provision for the decedent's wife and thereby precludes the revocation of his will by operation of A.R.S. § 14-134. He argues that A.R.S. § 25-201 must be limited to apply only to agreements which attempt to alter the statutory pattern of descent of community property, citing Williams v. Williams, 29 Ariz. 538, 243 P. 402 (1926) in support of this proposition. This limitation is necessary, he states, to give meaning to A.R.S. § 14-134 which obviously contemplates that valid marriage contracts may make provision for the wife out of the husband's separate property. In addition, he contends that the appellee is estopped to assert the invalidity of the agreement because William Mackevich entered into his marriage with her in reliance upon the effectiveness of this agreement.
The appellant misconceives the significance of the Williams decision, supra. There the parties entered into an antenuptial agreement that each would have independent control during the marriage of separate property owned before the marriage and also agreed upon a settlement to be effective in case of divorce. The Court said, '[i]t may be that such an agreement is perfectly valid in settling any rights which appellee acquired in the separate property of appellant by reason of the marriage,' and then held the provisions relating to a divorce settlement invalid. Since the Williams agreement in no way purported to govern the distribution of separate property at the death of either party, the quoted dictum is not authority that A.R.S. § 25-201 is limited in application to agreements involving community property. Furthermore, we cannot agree with appellant that unless this section is so limited it must necessarily be violated by any marriage contract providing for the wife out of separate property as contemplated by A.R.S. § 14-134. Many forms of ante-nuptial marriage contracts, such as present transfers of money or property, executory agreements to transfer property, agreements to devise or bequeath property, and agreements to settle trusts do not have any effect in altering statutory patterns of descent and distribution.
It is true that ante-nuptial agreements which would violate A.R.S. § 25-201 have been upheld in jurisdictions not having similar statutes. Typical of these is the agreement of the husband that a lump sum or set portion of his estate will be paid to the wife out of the husband's estate if she survives as his widow. In return the wife agrees to renounce any other claim she may have upon her husband's estate. E. g. Veeder v. Veeder, 195 Iowa 587, 192 N.W. 409, 29 A.L.R. 191 (1923) and cases cited annot. 1 A.L.R.2d 1260 (1948). Fairness dictates that such contracts be upheld in states where the statutory right of a widow to take a forced share of her husband's estate may result in injustice where parties marry late in life and have children by previous marriages.
But our legislature has established different policies. Our community property laws assure to a wife her share of community property acquired during the marriage, and she is given no right to share in her husband's separate estate against his will. Thus, fairness does not require she be permitted to renounce such a right. On the contrary, A.R.S. § 25-201 provides that the parties to a prospective marriage cannot, by contract, alter statutory patterns of intestate succession, either by attempting to establish a new order of descent, or by renouncing, in advance, rights of intestate succession which result from the marriage. Settlements agreed upon by the parties must be...
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Spector v. Spector
...of property at the death of the marital parties was held to violate A.R.S. § 25--201 and was declared invalid. In re Mackevich's Estate, 93 Ariz. 129, 379 P.2d 119 (1963). The court in these cases however was not called upon to consider the specific issues which are before us in this case, ......
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Ellis v. Comm'r of Internal Revenue , Docket No. 5170-66.
...policy. See Ariz. Rev. Stat. Ann. sec. 25-201 (1956); Williams v. Williams, 29 Ariz. 538, 243 Pac. 402 (1926); In re Mackevich's Estate, 93 Ariz. 129, 379 P.2d 119 (1963). Thus, petitioner did not acquire anything in exchange which would reduce the amount of the gift to the trust. According......
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Ellis v. Commissioner of Internal Revenue, 23970.
...We agree with the Tax Court that under Arizona law antenuptial agreements such as this are void. See In re Mackevich's Estate, 93 Ariz. 129, 133, 379 P. 2d 119, 122 (1963). Thus no rights were effectively waived and no consideration at all was given by the trust Judgment affirmed. * Honorab......