McAnulty v. McAnulty

• Decision Date: 23 March 1887
• Citation: 120 Ill. 26,11 N.E. 397
• Parties: McANULTY and others v. McANULTY and others.
• Court: Illinois Supreme Court

120 Ill. 26

11 N.E. 397

McANULTY and others

v.McANULTY and others.

Supreme Court of Illinois.

March 23, 1887.

Appeal from circuit court, Adams county.

George A. Anderson and Bonney & Woods, for James A. McAnulty and others, appellants.

J. N. Sprigg, for Samuel R. McAnulty and others, appellees.

MULKEY, J.

Samuel McAnulty, a widower well advanced in life, on the nineteenth of September, 1882, made his last will and testament, by which he disposed of all his estate, real and personal, among his children and grandchildren. The disposition of the will were much more favorable to some of the devisees than to others standing in the same relation to the testator; but, for the purposes of the questions to be considered, this general reference to the inequalities of the will is all that is necessary. On the eighteenth of October of the following year, the testator intermarried with Margaret Thompson, who had a farm and other property of her own, and a number of grown children by a former husband. On the twentieth of October, 1885, McAnulty died, leaving his widow, Margaret McAnulty, and the devisees under the will, surviving. The will having been admitted to probate, James A. McAnulty, a grandson of the testator, and one of the appellants herein, filed a bill in the circuit court of Adams county to contest the will, and praying for a partition of the real estate of which the testator died seized, according to the statute of descents. To this bill the widow and all the devisees under the will, except the complainants, were made defendants. After the answer were in, and replications filed, the court ordered an issue at law to be made up as required by the statute, which, by agreement of parties, was tried by the court without a jury. The court, upon hearing the proofs, sustained the will, and entered a decree dismissing the bill, from which the complainant and widow have appealed to this court.

The contention of appellants is that the marriage of the testator, subsequent to the making of the will, operated as an absolute revocation of it, to the same extent as if the testator had deliberately revoked it by cancellation. On the other hand, as we understand counsel, it is claimed that a subsequent marriage revokes a will as to the party marrying the testator or testatrix, and as to the issue of such marriage only. If the latter position is the correct one, it is quite clear the plaintiff has no such interest in the subject-matter of the suit, particularly the land sought to be partitioned, as will enable him to maintain the bill. The right of complainant to have it money, but no interest whatever in real estate. The right of complainant to have it partitioned is rested solely upon the hypothesis that the marriage of his grandfather operated as an absolute revocation of the will, and that by reason thereof the land in question became intestate property.

If section 10, c. 39, Rev. St., which has been in force since 1872, is to be given effect according to the letter of the acts, and what would seem to be its manifest import, it is difficult to escape the conclusion which appellants draw from it. That section, after providing for the case of a child being born to a testator after the making of a will, which has no bearing at all upon the question now under consideration, then concludes in these words: ‘ And a marriage shall be deemed a revocation of a prior will.’ We have not been able to find, nor have we been referred to, any provision in the statute which modifies or limits this plain and unequivocal declaration of the legislature.

The only case cited where this question was raised since the act of 1872 is In re Tuller, 79 Ill. 99. In that case the execution of the will and subsequent marriage both occurred before the act of 1872 went into effect, though the testatrix did not die till afterwards. It being insisted there, as it is here, that, under the act of 1872, the subsequent marriage operated as an absolute revocation of the will, this court, in disposing of the question, said: ‘It is finally insisted that there is here a statutory revocation of the will by force of the statute of 1872, * * * that ‘a marriage shall be deemed a revocation of a prior will;’ that as the will did not take effect, nor were any rights acquired under it, until the testatrix's death, its validity depends upon the law as it then stood, at the time of her deach; that the statute, though passed after the making of the will, takes effect upon it precisely as though the law had been passed before its execution.' The court, after discussing at some length the question whether the act cited should be extended to a will executed before its passage, finally held that it did not. Now, if the construction then and at present contended for by appellants is not the true one, much time and labor might have been saved in that case by simply saying so, instead of entering into an extended argument to show the statute of 1872 did not apply.

The eighteenth section, c. 26, 1 Vict., passed in 1837, provides ‘that every will made by a man or woman shall be revoked by his or her marriage, except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not, in default of such appointment, pass to his or her heir, customary heir, executor, or administrator, or the person entitled as his or her next of kin under the statute of distribution.’ While we have found no English case construing this provision, which we can account for only on the ground that the language is so plain that no one has ever questioned the plain import of the language used, yet Jarman in his work on Wills, (volume 1, star page 129,) in referring to this provision, expressly declares ‘that, unless in the expressly excepted cases, marriage alone will produce absolute and complete revocation as to both real and personal estate,’ etc. A like statute was passed in 1830 by the Virginia legislature, and Lomax, in his Digest, (volume 3, p. 148,) says of it in substance what is said by Jarman in respect to the British act. See, also, Phaup v. Wooldridge, 14 Grat. 332.

The adoption of this provision in England and in some of the states in this country doubtless had its origin, in part, in the diversity of the rulings of the courts, and the conflict of opinion with respect to the revocation of wills by implication on account of marriage, birth of issue, etc. With certain exceptions and limitations, the general rule at common law undoubtedly is that marriage alone of a feme sole revokes by implication a prior will, except where it operates as an appointment under a power, and except also in those states, including our own, where the property rights of married women are put upon the same footing as those of married men. This rule is rested on the distinct ground that marriage in the case of a woman destroyed the ambulatory nature of the will, and left it no longer subject to the wife's control, which is contrary to the very nature of a will. These consequences necessarily resulted from the common-law doctrine that the legal existence of the wife during coverture was merged in that of her husband. As to a man, marriage alone would not revoke a prior will. It required both marriage and birth of issue. The revocation, even from these circumstances, by the common law, does not universally follow. Presumptively it does; and, in the absence of anything to the contrary, they will be held to have that effect. The reason of the rule is, by the earlier authorities, based upon a presumed change in the testator's intentions, caused by the complete change of his situation resulting from marriage and birth of issue. This logically led to the practice of receiving evidence tending to rebut the presumption, which necessarily involved the subject in more or less uncertainty. Brady v. Cubitt, 1 Doug. 31;Goodtitle v. Otway, 2 H. Bl. 522. But the receiving of such evidence was never fully concurred in by the profession, and was finally rejected by the courts. Marston v. Roe, 8 Adol. & E. 14. In this state of the law the provision of the British statute above cited was adopted, and quite a number of the states of the Union, including ours, have enacted, with some diversity, similar provisions. The decisions of this court, based upon the law as it stood before the act of 1872, will be found to have taken the most advanced ground in favor of implied revocation of wills from marriage, as will fully appear from the cases of Tyler v. Tyler, 19...