Parker v. Foreman

• Decision Date: 24 March 1949
• Docket Number: 4 Div. 525.
• Citation: 39 So.2d 574,252 Ala. 77
• Parties: PARKER v. FOREMAN.
• Court: Alabama Supreme Court

39 So.2d 574

252 Ala. 77

PARKER v. FOREMAN.

4 Div. 525.

Supreme Court of Alabama

March 24, 1949

C. L. Rowe, of Elba, for appellant.

W R. Martin, of Ozark, for appellee.

SIMPSON Justice.

Mrs Nancy Ann Leonard Andrews Foreman, while married to J. W Andrews, from whom she was subsequently divorced, made a will devising all of her property to her sister, Mrs. Lula Parker the appellant, except Item 2nd of said will that recited:

'Inasmuch as my husband, J. W. Andrews, has left me and is no longer living with me, it is my desire that he share not in any wise in any of my property other than the debts which he now owes me; in other words, in order that this will may not be construed that I overlooked him in the making of the same, I do hereby give, will, devise and bequeath unto my husband, J. W. Andrews, the debts he now owes me, this to be in lieu of any other portion of my estate of any sort whatsoever.'

This will was duly executed December 27, 1939, and thereafter testatrix, having become divorced from Andrews, married appellee, J. M. Foreman. She died during this last coverture and the single question presented is, did her second marriage revoke her ante-nuptial will made while married to her former husband. The issue arose between Mrs. Parker, who presented the will for probate, and Mr. Foreman, who contested on the alleged ground that his intermarriage with testatrix revoked her previous will because of § 9, Title 61, Code 1940, which provides: 'If, after the making of a will by an unmarried woman, she marries, the marriage operates as a revocation of the will.'

Although the quoted section clearly and specifically limits such revocation to wills made by an unmarried woman, it is the appellee's contention, which prevailed in the lower court, that the ante-nuptial will of a married woman likewise stands revoked under the statute by her subsequent marriage.

The statute has come to us unchanged from the Code of 1852 and as far as we can find has never before been under review by this court, but we do not think it can be accorded the interpretation contended for. Certain well-recognized canons of construction of necessity lead to such result.

a. The right to dispose of property by will is not a natural one and may properly be regulated and restricted by the legislature; and the mode of its execution, the manner of its revocation, and the class of persons who may make a will, and what changes in the personal status of such persons after its execution shall operate as a revocation or be sufficient reasons for denying it probate, are all matters within and committed to legislative competency. Wills, Dig. Key No. Series 1; In re Berger's Estate, 198 Cal. 103, 243 P. 862, 863; In re Comassi's Estate, 107 Cal. 1, 40 P. 15, 17, 28 L.R.A. 414; Barnett v. Bellows, 315 Mo. 1100, 287 S.W. 604; Hibberd v. Trask, 160 Ind. 498, 67 N.E. 179; Phillips v. Phillips, 213 Ala. 27(1), 104 So. 234.

b. Statutes, such as the one under review, are in derogation of the general power to make a will, are in the nature of exceptions thereto, and must be accorded a strict construction, and no obtrusion to include a class not clearly comprehended therein will be recognized or permitted. Hibberd v. Trask, supra; 68 C.J. 839, note 33a.

c. In considering the scope of its operation, it is not for the courts to pronounce what should or ought to be the status declared by an act, but to confine consideration to the statute itself to determine whether the condition is within the conditions named and when the language is clear, will not search for a reason to enlarge or improve it. '* * * statutes do not depend upon reason for their force and vigor. It is sufficient that the Legislature enacted the statute and that it violates no constitutional restrictions. * * *' Barnett v. Bellows, supra, 315 Mo. 1100, 287 S.W. 604, 605; In re Berger's Estate, supra; Matter of McLarney's Will, 153 N.Y. 416, 47 N.E. 817, 60 Am.St.Rep. 664.

When Mrs. Foreman made her will, manifestly she was not within the influence of the statute. She was a married woman and fully competent to dispose of her separate property by will. Code 1940, Title 34,§ 78. The class of persons whose wills are deemed to be revoked by subsequent marriage under § 9, supra, are women who have made wills while unmarried, that is, one without a husband, whether single by widowhood or by never having been married. It will be observed that the language of the statute is that if, after the making of a will by an unmarried woman, she shall marry, the will is deemed revoked by such marriage. There is no possible scope for any other construction and no reason for the court, in construing the section, to change its evident meaning or interpolate words not found within it. It is not a marriage of every woman which operates under the section to revoke a will previously made. It is where the will has been made by an unmarried woman that such revocation occurs.

Careful examination of the reported cases in other jurisdictions discloses that this interpretation has been unanimously accorded similar statutes, as is noted in the recent edition of Page on Wills, Vol. 1, p. 952, § 518, from which we quote:

'If the statute provides in effect that a will shall be revoked by a subsequent marriage, the will of a married woman is revoked if her husband dies after she had made her will, or is divorced, and subsequently she remarries.

'If the statute provides that the will of an 'unmarried woman' is revoked by a subsequent marriage, the will of a widow which is made after the death of her first husband is revoked if she remarries thereafter; but a will which is made by a married woman during coverture is not revoked by her later marriage after the death of her husband, or after divorce.' A leading case is the Comassi case, above cited, which fully expresses our view:

'It is as useless to conjecture the motives that may have governed the legislature in singling out an unmarried woman as the only person whose will shall be affected by her subsequent marriage, as it is to conjecture why...