Mitchell's Will, In re

• Citation: 285 N.C. 77,203 S.E.2d 48
• Decision Date: 13 March 1974
• Docket Number: No. 47,47
• Parties: In re Probate of WILL of Levi E. (L.E.) MITCHELL.
• Court: United States State Supreme Court of North Carolina

Page 48

203 S.E.2d 48

285 N.C. 77

In re Probate of WILL of Levi E. (L.E.) MITCHELL.

No. 47.

Supreme Court of North Carolina.

March 13, 1974.

Taylor, Allen, Warren & Kerr, by John H. Kerr, III, Goldsboro, for applicant-appellants.

Braswell, Strickland & Rouse by Roland C. Braswell and Herbert B. Hulse, Goldsboro, for protestant-appellee.

SHARP, Justice:

Between 9 January 1845 and 1 October 1967 it was the law in North Carolina (with two exceptions not applicable to this case) that upon the marriage of any person his or her will was revoked. Sawyer v. Sawyer, 52 N.C. 134 (1859); 1 Wiggins, Wills and Administration of Estates in North Carolina § 100 (1964). This law, enacted as N.C.Sess. Laws, Ch. 88, § 10 (1844--45), was codified as G.S. § 31--5.3 (Vol. 2A 1966 Replacement) at the time Mitchell executed his will and on the date of his marriage. It was repealed by N.C.Sess. Laws, Ch. 128 (1967) (hereinafter referred to as 1967 G.S. § 31--5.3), which provided:

'Section 1. G.S. 31--5.3 is hereby rewritten to read as follows:

'A will is not revoked by a subsequent marriage of the maker; and the surviving spouse may dissent from such will made prior to the marriage in the same manner, upon the same conditions, and to the same extent, as a surviving spouse may dissent from a will made subsequent to marriage.

'Sec. 2. This Act shall apply only to wills of persons dying on or after October 1, 1967.

'Sec. 3. All laws and clauses of laws in conflict with this Act are hereby repealed.

'Sec. 4. This Act shall become effective on October 1, 1967.'

The question here presented is whether 1967 G.S. § 31--5.3 retroactively applies to save from revocation under former G.S. § 31--5.3 a will made by an unmarried person who married prior to 1 October 1967 and died thereafter. As the Court of Appeals noted, this is an issue of first impression in this State. It was for that reason we allowed certiorari.

The applicants for probate contend that because a will is ambulatory, and speaks only as of the date of its maker's death, it may not be held revoked under a statute which was repealed before the maker's death; that the right to probate is governed by the law in force at the maker's death.

Protestant contends that, under former G.S. § 31--5.3, Mitchell's will was revoked Eo instante upon his marriage to her and that thereafter it could be revived only by re-execution as provided by G.S. § 31--5.8 (1966).

In our view the logic of protestants' contentions is irrebuttable.

Under former G.S. § 31--5.3 the effect of marriage upon a maker's will was 'positive revocation.' Sawyer v. Sawyer, Supra. In 1958 this Court said, 'The object of G.S. § 31--5.3 is set out as plainly as language can do it. The statute provides that a person's subsequent marriage Ipso facto, with certain exceptions, revokes all prior wills made by such person.' In Re Will of Tenner, 248 N.C. 72, 73, 102 S.E.2d 391, 392 (1958). Thus, at the time of Mitchell's marriage in November 1963 his will was revoked by operation of law, and it could not be revived 'otherwise than by a re-execution thereof, or by the execution of another will in which the revoked will or part thereof is incorporated by reference.' G.S. § 31--5.8. After his marriage Mitchell never attempted to revive his revoked will in any manner whatever. Albeit his will remained intact as a paper-writing, on the effective date of 1967 G.S. § 31--5.3 it had had no legal existence for almost four years. Marriage had revoked the will as completely as if it had been physically destroyed. Thus, at the time of his death on 18 July 1972 Mitchell had no will and, as an intestate, 1967 G.S. § 31--5.3 had no application to him. Had this marriage occurred After 1 October 1967 it would not have revoked his will but Alma, as the surviving spouse, could have dissented in the same manner as if the will had been made subsequent to the marriage.

A statute will not be construed to have retroactive effect unless that intent is clearly expressed or arises by necessary implication from its terms. Smith v. Mercer, 276 N.C. 329, 172 S.E.2d 489 (1970); 7 N.C. Index 2d, Statutes § 8 (1969). Although 1967 G.S. § 31--5.3 is made applicable only to the wills of persons dying after 1 October 1967, we find nothing in that statute to support applicants' argument that this limitation clearly manifests the legislative intent to change retroactively the effect which marriage had upon the will of a single person prior to 1 October 1967, or to revive Ipso facto a will which had been positively and totally revoked prior to its enactment. The legislature was well aware that for over 122 years prior to 1 October 1967, by operation of law, marriage had instantly revoked a will and that, under G.S. § 31--5.8, a revoked will could be revived only by the re-execution of another will. Had it intended that 1967 G.S. § 31--5.3 would revive wills previously revoked by marriage e must assume it would have said so specifically.

The conclusion we reach in this case is supported by the following decisions: In Re Estate of Crohn, 8 Or.App. 284, 494 P.2d 258 (1972); Wilson v. Francis, 208 Va. 83, 155 S.E.2d 49 (1967); In Re Estate of Stolte, 37 Ill.2d 427, 226 N.E.2d 615 (1967); In Re Berger's Estate, 198 Cal. 103, 243 P. 862 (1926). See also 2 Page on Wills (Bowe-Parker Rev. 1960) § 21.97.

In Re Berger's Estate, Supra, is the leading case dealing with this question. The facts in Berger were these:

In 1911, C.D., unmarried, made her will. The California law then provided that marriage revoked a woman's will and it was not revived by her husband's death. In 1913, C.D. married H.L.B. from whom she was later divorced. In 1918 she married Berger. In 1919 the law was changed to provide that if, after making a will, the maker married and her husband survived her, the will was revoked unless it provided for him or manifested an intention to disinherit him. In 1923 Berger died. In 1924 Mrs. Berger died childless, and her 1911 will was offered for probate. In the ensuing contest the parties made the same contentions which are being made here. In denying probate the California Supreme Court recognized that wills...