Stewart v. Mulholland

• Decision Date: 15 December 1888
• Citation: 10 S.W. 125,88 Ky. 38
• Parties: STEWART et al. v. MULHOLLAND et al.
• Court: Kentucky Court of Appeals

10 S.W. 125

88 Ky. 38

STEWART et al. v. MULHOLLAND et al.

Court of Appeals of Kentucky.

December 15, 1888

Appeal from court of common pleas, Jefferson county; EMMET FIELD Judge.

Proceedings instituted in the county court of Jefferson county for the probate of the will of Mary H. Stewart, nee Jacob. The will was propounded by James R. Stewart, her husband, and others and contested by James C. Mulholland and others, her next of kin. The county court having refused probate, an appeal was taken by proponents to the common pleas, where the decision was affirmed, and proponents again appeal.

Brown Humphrey & Davie, for appellants.

James S. Pirtle, for appellees.

PRYOR J.

Mrs Mary Hall Jacob, being about to intermarry with James R. Stewart, was desirous of entering into an antenuptial contract by which she could secure to herself the right to hold and own her property as her separate estate, and to make such disposition of it as she saw proper by last will and testament. She communicated her wishes to her intended husband, and, obtaining his consent, prepared a will in her own handwriting, by which she devised her estate,--one-half of it to her future husband, Stewart, and the remaining half to her two nieces, excluding from the general devise an interest in a dwelling-house in Elizabethtown that she devised to her nephew. She had three brothers and a nephew who were not made the beneficiaries by that instrument, and who are now contesting its probate. A sister of Mrs. Jacob had died many years before the date of the will, leaving children, and among them two infant daughters, one eight days old, and the other two years of age. These children were taken charge of by Mrs. Jacob, and raised to womanhood, and are made, together with her husband, the objects of her bounty in the disposition she has made of her estate. The will is dated on the 9th of January, 1876. The marriage contract seems to have been written on the 11th of January, two days after the will was written, and signed by the contracting parties on the 12th of January, the next day, and the same day on which the marriage ceremony was performed. After the ceremony was over, and the parties made man and wife, the wife, on her way from Elizabethtown to Louisville, on the same day she was married, handed the paper inclosed by an envelope to a friend of hers, telling him to keep it safely; that it was her will. This was in the presence of her husband. This friend, the husband of her deceased sister, took charge of the paper, and placed it in the vaults of a bank, where he kept it for three or four years; and Mrs. Stewart, having removed to Wisconsin, it being her husband's home, wrote after the lapse of three or four years to her friend to send her the will. This he did. The will was received by her, and kept in a tin box in her custody and that of her husband until offered for probate. The paper is identified by Samuels, the friend with whom it was left, as the same paper he had the custody of, he having read it, and is identified as the same paper received by Mrs. Stewart from Samuels, and the same taken from the tin box after her death. That she spoke of her will often while living in Wisconsin, is abundantly established, and that the paper offered for probate is the paper alluded to by her, is settled beyond controversy. The preparation and the execution of this paper by Mrs. Stewart on the eve of her marriage is not in fact contradicted, or, if denied, is a fact well established.

The propounders of the paper as the last will of Mrs. Stewart are met with the objection by her three brothers, who are the contestants, that the marriage of their sister with Stewart revoked her will by reason of an express provision of our statute in regard to wills, and the court below, adopting that view of the case, denied its probate. The ninth section of chapter 113, Gen. St. tit. ""Wills," provides: "Every will made by a man or woman shall be revoked by his or her marriage, except a will made in the exercise of a power of appointment, when the estate thereby appointed would not, in default of such appointment, pass to his or her heir, personal representative, or next of kin." Section 11 of the same chapter also provides: "No will or codicil, or any part thereof which shall be in any manner revoked, shall, after being revoked, be revived, otherwise than by re-execution thereof, or by a codicil executed in the same manner hereinbefore required, and then only to the extent to which an intention to revive the same is shown thereby." It is manifest under these two sections of the statute that a will once revoked can only be revived by a re-execution of the instrument in the manner pointed out by the statute. It is, in fact, the making of another will, and must be executed in the same manner in which the original will was required to be executed.

The will offered for probate is all in the handwriting of the testatrix, who at the time of its execution was the widow of Jacob; and, it being holographic, it is contended that its preservation by Mrs. Stewart for so many years, and her frequent recognition of the paper as her will, so often made during a long period of time, amounts not only to a republication of the paper as her will, but such a re-execution of the instrument as makes it a complete will. There can be no doubt from the testimony of those intimately acquainted with the testatrix, that she always, from the date of the execution of the paper until her death, regarded it as her last will, and as having given her property to those whose claim upon her affections made them the objects of her bounty. This manifest intention, however plain on the part of Mrs.

Stewart, will not be permitted to override the plain letter of a statute that was enacted for the purpose of preventing a litigation over the question of intent, and admitting to probate a paper already revoked, that has no stronger proof of its validity than the mere intention of the maker to impart a new life to the instrument.

The statute in regard to wills, and particularly the two sections referred to, with their meaning and purpose properly understood, leaves but little room for construction. This court, in the case of Porter v. Ford, reported in 82 Ky. 191, where testatrix executed a paper in her own handwriting, purporting to be her will, while she was a married woman, and after she became discovert not only recognized the paper as her will, but made indorsements upon it to that effect, held that, as she was then capable of making a will, such a recognition made it a valid instrument, and, being all in her own handwriting, there was nothing in the statutes requiring the paper to be rewritten or resubscribed by her after her disability was removed in order to make it a testamentary paper. It was also held in that case, in construing the section of the statute in regard to revocation, that the section did not apply, because the paper at no time during the coverture was valid, but absolutely void, and its recognition after the death of her husband gave to the paper for the first time legal vitality. That case, relied on as authority in this case in support of the will, is not analogous, because the question here involved is whether this will of Mrs. Jacob had ever been revoked; for, if revoked, new life could never be imparted to it by mere recognition or a republication, because the statute requires where a will has been once revoked there must be a reexecution, and the will of Mrs. Jacob cannot well be held to be the will of Mrs. Stewart, if that paper was revoked by the marriage with Stewart.

By the rule of the common law the marriage of a woman revoked a will previously made by her, because, if allowed to stand, it would affect the marital rights of the husband, and during marriage no power existed by reason of the disability of the wife either to revoke, alter, or make another will. At common law, however, where the wife had the right of disposing of her separate estate by an antenuptial agreement, her will previously made was not revoked by her subsequent marriage and in this state a married woman may dispose of her separate estate by last will and testament. ...