Vanek v. Varnick)

• Decision Date: 12 April 1919
• Docket Number: 22,046
• Citation: 104 Kan. 624,180 P. 240
• Parties: MAY VANEK, a Minor, by T. P. GILE, Her Next Friend, Appellee, v. EDWARD VANEK (commonly known as EDWARD VARNICK) et al., Appellants
• Court: Kansas Supreme Court

180 P. 240

104 Kan. 624

MAY VANEK, a Minor, by T. P. GILE, Her Next Friend, Appellee, v. EDWARD VANEK (commonly known as EDWARD VARNICK) et al., Appellants

No. 22,046

Supreme Court of Kansas

April 12, 1919

Decided January, 1919.

Appeal from Republic district court; JOHN C. HOGIN, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. WILL OF BACHELOR -- Subsequent Marriage -- No Issue -- Will Not Annulled--Rights of Widow. The fact that the statute, in effect, makes the wife an heir of the husband (giving her also a right corresponding to dower, enabling her to hold half of his property notwithstanding any will he may have made) does not require the modification of the rule of the common law that the will of a bachelor is not revoked by his marriage unless issue results; the proviso that nothing in the section which enumerates the methods by which a will may be revoked by affirmative action "shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator" (Gen. Stat 1915, § 11793), refers to the effect of some fixed and definite rule of either the statute or the common law, and does not authorize the courts to treat a will as annulled whenever such a change has taken place since its execution as to warrant a belief that if the testator had anticipated it he would have made a different disposition of his property.

2. SAME--Construction of Statute. The provision of the statute that "any married person having no children may devise one-half of his or her property to other persons than the husband or wife" (Gen. Stat. 1915, § 11791), applies to the operation of wills made before marriage as well as after.

J. M. Livingood, T. D. Leedom, both of Belleville, I. M. Mahin, F. W. Mahin, both of Smith Center, and L. A. Hasty, of Camp Green, N. C., for the appellants.

W. D. Vance, and R. E. McTaggart, both of Belleville, for the appellee.

OPINION

MASON, J.:

On July 8, 1914, James Vanek, a bachelor, made a will bequeathing all his personal property to his brother, Edward Vanek, to whom he also devised a life interest in his realty, the remainder to vest in Edward's oldest son if he should be survived by one, otherwise in Hary Vanek, a nephew of James, upon his payment of $ 2,000 to Edward's widow. On February 29, 1916, the testator was married. He died on April 25, 1917. No issue resulted from the marriage. The will was admitted to probate. The widow, May Vanek, brought an action in the district court against the claimants under the will asking to have it, together with the order of probate, and letters of administration that had been granted, set aside on the ground that it had been revoked by the marriage. Judgment was rendered in her favor, and the defendants appeal.

1. The principal question involved is whether or not, under our statutes, the subsequent marriage of a testator, without the birth of a child, may revoke a will. At common law, a will made by a single man was ordinarily revoked by his subsequent marriage and the birth of issue, but not by the marriage alone. (40 Cyc. 1198, 1200.) Some courts affirm, and others deny, that where the statute makes the wife an heir of her husband (the word "heir" being used for convenience, although not strictly accurate) marriage, even without issue, should have the effect of revoking his antenuptial will. (Hoy v. Hoy, 93 Miss. 732, 48 So. 903, and cases cited therein, and in the note thereto in 25 L.R.A. N.S. 182.) To the citations in the note referred to on the negative of the proposition should be added the later case of Herzog v. Trust Co. of Easton, 67 Fla. 54, 64 So. 426, Ann. Cas. 1917 A, 201. In Toepfer v. Kaeufer, 12 N.M. 372, the reasoning of the cases supporting the affirmative is adopted, although the will involved was that of a woman, so that the legal questions presented were somewhat different. The courts which take the affirmative view do so mainly upon the ground that the bringing into existence of a new heir makes such a change in the testator's condition that it should be conclusively presumed that he did not desire the previously executed will to remain in force--that this reasoning was the basis of the common-law rule and should be given effect by modifying the latter so as to apply the same principle to the changed state of the law of descents and distributions. The courts which take the contrary view proceed largely upon the proposition that the reason why the mere marriage of the testator did not at the common law revoke the will was because the widow's dower gave her sufficient protection against the effect of any will of her husband, whenever made (1 Jarman on Wills, 6th ed., 144), and that the force of this consideration is not impaired by the abolishment of dower, where a right of substantially equal value is substituted for it. The decisions are to some extent affected by the precise character of the local statutes. For illustration, in one instance where the will was held to have been annulled, if the ruling had been to the contrary, the widow (as we interpret the opinion) would have received nothing whatever from her husband's estate. (Morgan v. Ireland, 1 Idaho 786.) Of the two lines of reasoning, that supporting the decisions holding that marriage alone does not annul the will appeals to us the more strongly, especially in view of the provisions of our own statutes.

To the section of our statute of wills which provides for express revocation is added: "but nothing herein contained shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator." (Gen. Stat. 1915, § 11793.) We do not interpret this proviso as intended to give to the courts the power to treat a will as revoked upon what might be deemed equitable grounds, whenever, between the execution of the will and the testator's death, a change has taken place such as to warrant the belief that if he had anticipated it he would have made a different disposition...