Murphy v. Markis

• Decision Date: 30 October 1925
• Citation: 130 A. 840
• Parties: MURPHY et al. v. MARKIS.
• Court: New Jersey Court of Chancery

130 A. 840

MURPHY et al.

v. MARKIS.

Court of Chancery of New Jersey.

Oct. 30, 1925.

Action by John Murphy and others against William Henry Markis. Decree for defendant.

Cole & Cole, of Atlantic City, for complainants.

Bourgeois & Coulomb, of Atlantic City, for defendant.

INGERSOLL, V. C. On September 19, 1899, the defendant, William Henry Markis, married one Sarah Murphy.

On April 13, 1909, the said Sarah Markis, the wife of said defendant, made, published, and declared her last will and testament, which will contained the following;

"Third, I give, devise and bequeath unto my beloved husband, William Henry Markis, all the remainder and residue of my estate real, personal and mixed, absolutely, of whatsoever kind and wheresoever situate, including all insurance money or monies that my death may produce."

"And, fifth, I hereby constitute and appoint my beloved husband, William Henry Markis, sole executor, without bond, of this my last will and testament."

A number of years after the making of said will, Sarah Markis filed her petition in this court against her husband praying a dissolution of their said marriage, on the ground of adultery, and a final decree was entered in said cause, bearing date November 8, 1910 by which the said parties were divorced from the bonds of matrimony for said cause, and the said marriage was dissolved.

On September 14, 1923, the said Sarah E. Markis departed this life unmarried and without issue, but leaving her surviving the complainants, her sisters, nephews, and a grandniece, respectively.

After the death of Sarah Markis, said William Markis produced before the surrogate of Atlantic county said last will and testament, which was duly probated, and the said William Henry Markis qualified as executor, and has taken upon himself the burden of the administration of the estate of the said Sarah Markis.

The only questions for determination are: Hoes William Henry Markis take under the provisions of section 3 of said will, and is he appointed executor thereof under clause 5?

In some jurisdictions, facts such as are here present are sufficient upon which to presume an implied revocation of the will. Re McGraw (1924) 228 Mich. 1, 199 N. W. 686, 37 A. E. R. 308.

This question is quite thoroughly annotated in 25 A. L. R. on page 49. This annotation carefully distinguishes the cases of revocation of the will, or of the legacy or devise, or the lapse of the legacy or devise. In this state, however, "no devise or bequest in writing * * * or any clause thereof, shall be revocable, otherwise than by some other will or codicil in writing, or other writing declaring the same, or by burning, canceling, tearing or obliterating the same by the testator himself or in his presence, and by his direction and consent: but all devises and bequests * * * shall remain and continue in force until the same be burnt, canceled, torn or obliterated" as aforesaid, or by some other will, codicil or other writing duly executed. 4 Comp. Stat. pp. 5861-5870. No claim is made that the will was revoked.

Chancellor Vroom in Bullock v. Zilley, 1 N. J. Eq. 489. said:

"The only question that can be raised is this: Whether the words 'his wife.' as applied to the complainant in the bequest, are to be taken as mere words of description; if so taken, the rights of the complainant are not affected by the divorce; but if the person taking must necessarily be the wife of Thomas Bullock, and take in that capacity, then her interest is at an end."

This has been the law for nearly a century. Steen v. Steen, 68 N. J. Eq. 472, 59 A. 675; Bell v. Smalley, 45 N. J. Eq. 478, 18 A. 70.

The Chancellor in Bullock v. Zilley, supra, further said:

"Upon what grounds the parties were divorced, or which complained of the other, I am not informed. The bill simply alleges the fact of the divorce. The demurrer admits it as stated, and the court can look no further than the pleadings. I am not aware, however, that any development of facts can change the legal rights of the parties. Considering the case, then, simply upon the intention of the testator, as collected from the will itself, my conclusion is, for the reasons above stated, that the complainant is entitled to relief."

In Van Syckel v. Van Syckel, 51 N. J. Eq. 194, 26 A. 156:

"A devise to A., and at his death to his wife, applies only to the person who was his wife at the date of the execution of the will, and does not extend to a wife taken subsequently thereto."

Vice Chancellor Green distinguishes this case from the cases therein cited and Swallow v. Swallow, 27 N. J. Eq. 278.

In Jones* Estate, 211 Pa. 364, 60 A. 915, 69 L. R. A. 940, 107 Am. St. Rep. 581, 3 Ann. Cas. 221, the opinions of the auditing judge and of the judge on exceptions, and the opinion of Mr. Justice Potter, are very illuminating. The court said:

"What is there in the facts of this case to support the claim that the legacy has lapsed? The person named as legatee did not die in the lifetime of the testator, nor did any other event occur in the lifetime of the testator, which, under the language of the will, would render the testamentary gift inoperative. The donee survived the testator and is alive, and has both capacity and willingness to take under the will. But it is suggested in the argument, that, while not physically dead, the donee by her own act in obtaining the decree of divorce, ended the marital relation, as absolutely as death would have done.

"This consequence did follow the divorce, in so far as the duties, rights and claims accruing to her by reason of the marriage are concerned. * * * What the law gave, it took away; nothing more. The beneficiary * * * is here only as a legatee, and is asking for that only, which the testator gave to her of his free grace, and as a matter of bounty. That which he gave to her in his will was his own, to give or to withhold as he saw fit. A bequest needs no consideration to support it. As a legatee she stands upon the same footing as any other individual, and her relation to the testator has nothing to do...