Morgan v. Ireland

• Citation: 1 Idaho 786
• Parties: Loraine B. Morgan, Respondent, v. J. N. Ireland And H. H. Mifflin, Appellants.
• Decision Date: 01 September 1880
• Court: United States State Supreme Court of Idaho

1 Idaho 786

Loraine B. Morgan, Respondent, v. J. N. Ireland And H. H. Mifflin, Appellants.

Supreme Court of Idaho

September 1, 1880

DOWER.-Our statute has abolished dower, but has substituted more liberal provisions in its stead.

REVOCATION OF WILL.-Whenever new moral and testamentary duties arise subsequent to the execution of a will, the will is revoked by presumption or operation of law, unless the objects of those duties are provided for, ither by the law or the will.

APPEAL from the Third Judicial District, Oneida County.

Higbee & Smith, for the Appellants. Huston & Gray, for the Respondent.

PRICKETT J.,

delivered the opinion;

MORGAN C. J., and BUCK, J., concurring.

On the sixth day of August, 1878, Morgan M. Morgan, late of Oneida county in this territory, made his last will, whereby

he disposed of his entire estate, both real and personal, to his children. At that time he was a widower, and the father of several children by a previous marriage. On the thirteenth day of October in the same year, he intermarried with the plaintiff; and on the twenty-fifth day of February, 1879, he died. He left, surviving him, a widow-the plaintiff above named-and the children of the former marriage. On the third day of April, 1879, the will was admitted to probate in the probate court of Oneida county, and the defendants were appointed executors thereof. On the seventeenth day of September, 1879, the plaintiff petitioned the probate court to set aside the will, on the ground that it was, presumably revoked. The probate court denied the petition and dismissed the same; from which judgment the plaintiff appealed to the district court of the third judicial district in and for Oneida county; which last named court, on the third day of May, 1880, rendered its judgment reversing the judgment of the probate court and declaring the will revoked, and annulling the probate thereof and the letters testamentary issued thereon. From the judgment of the district court the executors appealed to this court.

The only question in the case is, Do the facts above stated imply a revocation of the will? Or, in other words, does the marriage of a man, under the circumstances of this case, by operation or presumption of law revoke a will previously made?

We are without any statute on the subject of revocation of wills, and are therefore to be governed in the decision of this question by the principles of the common law, as settled by the adjudications of the English and American courts-that law having been adopted by our legislature as the law of this territory, when not in conflict with statutory provisions.

It is laid down as a rule, in the most, if not all of the English cases in which the question has been considered, that marriage, without the birth of issue, does not operate to revoke a precedent will. There are, also, numerous decisions by the English courts on the question whether the subsequent birth of a legitimate child alone will have that effect; in some of

which it is held that it will, and in others to the contrary; in some that it operates as a revocation of the will as to the personal estate alone; and in others that it has that effect, both as to real and personal property. But it must be borne in mind that the reasons given by the English courts for their decisions upon these questions are based, principally, upon the existence of the common-law right of dower and upon the English law of primogeniture, neither of which exists here. The English rule and the reasons therefor are very concisely stated by Greenleaf in his valuable work on evidence, vol. 2, par. 684, as follows:

"In regard to implied revocations, these are said to be founded on the reasonable presumption...