Robertson v. Jones

• Decision Date: 23 January 1940
• Docket Number: 36095
• Citation: 136 S.W.2d 278,345 Mo. 828
• Parties: Zuella Robertson, formerly Zuella Jones, v. William S. Jones, Charles A. Jones, George A. L. Jones, Mattie Fox, Etta Leveck, Anna Jayne, Stella Clifford and Della Lyon, Appellants
• Court: Missouri Supreme Court

136 S.W.2d 278

345 Mo. 828

Zuella Robertson, formerly Zuella Jones, v. William S. Jones, Charles A. Jones, George A. L. Jones, Mattie Fox, Etta Leveck, Anna Jayne, Stella Clifford and Della Lyon, Appellants

No. 36095

Supreme Court of Missouri

January 23, 1940

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Affirmed.

Harvey E. Hartz for appellants.

(1) The court erred in holding that plaintiff had any right, title or interest in the real estate in question. The devise to plaintiff as "my beloved wife" under the last will and testament of John M. Jones, deceased, executed by him during coverture lapsed and was revoked and annulled by the divorce and property settlement between plaintiff and her former husband. (2) This is not a will contest action. In such proceeding the only matter presented to the court is -- whether or not the writing produced is the will of the testator. Cox v. Cox, 101 Mo. 171; Van Raalte v Graff, 299 Mo. 513, 253 S.W. 220; Ewart v Dalby, 5 S.W.2d 428. (3) A will may be revoked and annulled. (a) By act of the testator. Section 520, Revised Statutes 1929, provides that no will shall be revoked, except by a subsequent will, in writing, or by burning, canceling, tearing or obliterating the same by the testator. This statute is taken from the English Statute of Frauds and covers only acts of direct and express revocation of a will. Dunlap v. Hart, 274 Mo. 600, 204 S.W. 525; 68 C. J. 797. (b) By operation of law. At common law certain changes in the condition or circumstances of the testator worked a revocation of his will by implication, such as: marriage, birth of issue, divorce with property settlement, conveyance of property or other alteration of estate, or loss of estate. Section 520, Revised Statutes 1929, did not change this common-law rule. Dunlap v. Hart, 274 Mo. 600, 204 S.W. 525; 1 Alexander on Wills, p. 722; 68 C. J. 824. Our Legislature has passed statutes embodying some of the above mentioned features constituting revocations at common law. (4) At common law, a divorce coupled with a property settlement in favor of the wife constituted a revocation of any devise in her favor under a will executed by her former husband during coverture. This is known as a revocation by implication or inference of law and is not within the purview of Section 520 of our statutes. 68 C. J. 841; 1 Schouler on Wills (6 Ed.), 744; 1 Woerner on Administration, 156; 1 Alexander on Wills, 722; 9 R. C. L. 495; 4 Kent's Commentaries, 521; In re Estate of Martin, 109 Neb. 289; In re Gilmour's Estate, 260 N.Y.S. 761; Lansing v. Haynes, 95 Mich. 16; In re Hall's Estate, 106 Miss. 502, 119 N.W. 291; In re Battis, 143 Wis. 234, 126 N.W. 9; Wade v. Wade, 108 S.W.2d 1060. (5) The court erred in rendering judgment for plaintiff; under the law and the evidence in this case, the judgment of the trial court should have been for defendants. Plaintiff's claim was under lapsed devise, which had been revoked and annulled by her divorce and settlement of all property rights and claims against her former husband. Wade v. Wade, 108 S.W.2d 1060.

William E. Carson, David P. Dabbs and J. Gordon Siddens for respondent.

(1) Divorce with a property settlement did not operate as a revocation of a will at common law. 2 Blackstone's Commentaries, 502; 30 American & English Encyclopedia of Law, p. 652; 33 Michigan Law Review, p. 637; In re Brown's Estate, 117 N.W. 263; Card v. Alexander, 40 Am. St. Rep. 187, 48 Conn. 492; Sec. 520, R. S. 1929; Baacke v. Baacke, 69 N.W. 303; 28 Am. St. Rep. 357; Charlton v. Miller, 22 Am. St. Rep., 310, 27 Ohio St. 298; In re Jones Estate, 60 A. 915; In re Nenaber's Estate, 225 N.W. 719. (2) The statutory methods for revocation of a will are exclusive in Missouri. Sec. 520, R. S. 1929; Fisher v. Kiethley, 142 Mo. 252; Graham v. Karr, 55 S.W.2d 1001, 331 Mo. 1157.

OPINION

Douglas, J.

This question for determination is whether a divorce and property settlement revoke a provision of a will. The statutes have no provision for revocation based on such circumstances. Therefore, in reaching a decision we must first ascertain whether revocation by implication is recognized in this State.

The question arises from these facts. John M. Jones married Zuella Robertson, the plaintiff. Two years after his marriage, in 1927, he made a will leaving his property in equal shares to his mother and to his "beloved wife, Zuella Jones." Then in 1935 in connection with a suit for divorce he made a property settlement with his wife. In consideration of a substantial cash payment she released all her rights in his property including her inchoate right of dower. As part of the settlement she joined in a transfer of the same real property which constitutes his estate and in which she is now seeking to establish her interest. The divorce was granted. Six weeks later he died without making a new will. His 1927 will was probated. She brings this action for determination of title and partition against all his brothers and sisters who are his only heirs, his mother having predeceased him. She claims one-half of the real estate under the devise to her. The defense is based on the theory that the divorce accompanied by the property settlement constituted a revocation of the devise so that she has no interest in the property. Judgment was for the plaintiff and the defendants have appealed.

The revocation of a will, or a part thereof, is governed by statute. Section 520, Revised Statutes 1929 (1 Mo. Stat. Ann., p. 315) states that "no will in writing, except in the cases hereinafter mentioned, nor any part thereof, shall be revoked, except by a subsequent will, in writing, or by burning, canceling, tearing or obliterating the same, by the testator, or in his presence, and by his consent and direction." Then in Section 521 are now found "the cases hereinafter mentioned." There, it is provided that if a testator shall marry and die leaving issue surviving or if issue of such marriage are born after his death then his will shall be deemed revoked unless provision shall have been made for such issue. Formerly, there was another section immdiately following this one and also within "the cases hereinafter mentioned" which specified that the will of an unmarried woman was deemed revoked by her subsequent marriage. This section was repealed in 1927. Succeeding sections modify common-law rules of revocation and are not pertinent.

In no section is there any provision that a divorce and settlement operate as a revocation. Nor is there any provision incorporating implied revocation as an exception to Section 520, such as we find in other states. Even so, it is argued that we should apply the common-law doctrine of implied revocation and extend it to cover cases of divorce and settlement. It is true the common law of England, so far as it is applicable, is in force in this State except where changed by statute. [Sec. 645, R. S. 1929, 7 Mo. Stat. Ann., p. 4894.] In our opinion the statutes have abrogated this common-law doctrine of implied revocation and are exclusive. Their very wording indicates this and it is entirely competent for the Legislature to enact such laws as it deems proper regarding wills because the right to dispose of property by will is not a natural right. [Barnett v. Bellows, 315 Mo. 1100, 287 S.W. 604.]

The history of implied revocation under the common law is interesting. The English Courts developed a theory that an alteration in the circumstances of the testator either furnished a presumption of intention to revoke a previous will or, ipso facto, did revoke such a will. This was held to be an exception to the Statute of Frauds. The Ecclesiastical Courts held that marriage and birth together was such a change in circumstances as to amount to an implied revocation. Confusion resulted because the rulings of the Ecclesiastical Courts and the Courts of Common Law in the application of the doctrine of implied revocation were not in harmony. [Marston v. Roe, etc., 8 Ad. & E. 14 (1838).] The Wills Act was passed to end this confusion. It expressly provided that no will should be revoked by "any presumption of intention on the ground of an alteration in circumstances;" and that a will was revoked by subsequent marriage. The usual provisions for the revocation of a will by a subsequent will or by burning, etc., were also included. [7 Wm. IV & 1 Vict. Cap. 26.] Marriage or birth of children subsequent to making a will seem to have been the chief causes of the origin of the doctrine. Our statutes have met these situations by Section 521 and by other sections preserving marital rights. They are comprehensive and leave no field for the operation of the doctrine of implied revocation.

This court has heretofore announced, but without discussion, that revocation by implication is not favored. [Neibling v Methodist Orphans' Home, 315 Mo. 578 at 588, 286 S.W. 58.] This has been followed in Mort v. Trustees of Baker University, 229 Mo.App. 632, 78 S.W.2d 498. We have not even looked upon the prior alienation of property specifically devised as an implied revocation. Outside of a change in the family conditions this seemed to be the most usual instance of revocation by operation of law accepted by the common law. [Page on Wills (2 Ed.), sec. 455.] Although we have applied the principle, we have held it was not a real revocation of such devise. We said in Fisher v. Keithley, 142 Mo. 244, 43 S.W. 650, that such an alienation merely operated as a revocation of the devise and could not be regarded as an exception to the statutory mode of revocation but as a failure of the subject of the devise. This was repeated with approval in Graham v. Karr, 331 Mo. 1157, 55 S.W.2d 995 at page 999. And in Dunlap v. Hart, 274 Mo. 600, 204 S.W. 525...