Wehr v. Wehr (In re Wehr's Will)

• Citation: 18 N.W.2d 709,247 Wis. 98
• Parties: In re WEHR'S WILL. WEHR et al. v. WEHR.
• Decision Date: 15 May 1945
• Court: United States State Supreme Court of Wisconsin

247 Wis. 98

18 N.W.2d 709

In re WEHR'S WILL.

WEHR et al.

v.WEHR.

Supreme Court of Wisconsin.

May 15, 1945.

This is an appeal from a judgment of the County Court of Milwaukee County; M. S. Sheridan, County Judge.

Judgment affirmed.

Edward Wehr and C. Frederic Wehr, executors, and Harry Nacey, Jr., John Nacey, Martin Wales, Robert Wales, and Alice Wales, and Elizabeth Gebhardt and Rose Gebhardt, were the proponents of the last will and testament of William E. Wehr, and a contest was filed by Alberta D. Wehr, widow of deceased. That was tried to the court and a judgment was entered on December 7, 1944 admitting the will to probate. Contestant appeals. The material facts will be stated in the opinion. Miller, Mack & Fairchild, Arthur W. Fairchild, and J. Gilbert Hardgrove, all of Milwaukee, and Joseph E. Davies, of Washington, D. C. (Davies, Richberg, Beebe, Busick & Richardson, of Washington, D. C., of counsel), for appellant.

Olwell & Brady, of Milwaukee (Bernard V. Brady, James N. Johnson, Lines, Spooner & Quarles and Louis Quarles, all of Milwaukee, of counsel), for respondent.

WICKHEM, Justice.

There are no issues of fact in this case. William E. Wehr executed a will on March 10, 1937. He was then a widower without issue. He had four brothers and two sisters and the will made provision for two of the brothers and the two sisters. On August 15, 1938 he married Alberta D. Wehr who is the contestant, and appellant. He died on August 24, 1944, three brothers, a sister and his widow surviving him.

The contention of the widow is that in Wisconsin the will of an unmarried man having no issue is revoked by his marriage, particularly in view of the rule which makes the widow the sole heir of her husband in the event of his death without issue. Appellant, in support of this contention, first takes issue with the claim of respondents that there ever was a rule at common law contrary to her contention here. The English cases are elaborately briefed by appellant, and it is sought to be demonstrated that in no cases where the matter was directly involved did a court ever state that the will of an unmarried man having no issue was not revoked by marriage. There is a measure of truth in this analysis. What the cases hold is that marriage plus the subsequent birth of a child does revoke the antenuptial will of a man who at the time of his marriage had no issue. However, it must be said (1) that there is no English case holding that marriage alone under such circumstances does accomplish a revocation, and (2) that it is almost necessarily implied by the cases holding that marriage plus the subsequent birth of a child does revoke a will that nothing short of this is effective. Further than this, at least one case prior to the Revolution makes a statement contrary to appellant's position: In Shepherd v. Shepherd, 5 T.R. 51 (1770) the court says: ‘Upon the whole, therefore, I am of opinion, 1st, that a will is revoked by subsequent marriage and issue. 2dly, that marriage alone, or birth of children alone, is not sufficient to operate a revocation.’

Appellant, in her analysis of the Shepherd case, asserts that it is not in point on the facts and that the statement was only dictum. However, the absence of any declaration that marriage alone would revoke, plus dictat to the effect that it does not have such an effect is of more than passing importance. Certainly, the opinion of the bench and bar has been that the common law rule was in accord with the statement in the Shepherd case. Chancellor Kent in Brush v. Wilkins, N.Y., 4 Johns.Ch. 506, after a review of the English cases, reached the conclusion that the following was the settled rule of the English common law as early as 1775: ‘* * * that marriage and a child taken together, (though neither of them taken separately was sufficient,) did amount to an implied revocation, * * *.’

This statement is repeated in Kent's Commentaries, 14th Ed., Vol. 4, page 521, 522. Hence, the best that appellant can establish is that it was not directly held in so many words in a case involving mere marriage that that circumstance was not sufficient to revoke a will. However, the rule laid down by the trial court was established by implication, stated in dicta, and understood to exist by the bench, bar and legal writers.

Appellant's next argument is much more difficult to meet and we shall try to state it as accurately as possible. It is that assuming there was a common law rule that marriage alone would not revoke a will in the circumstances involved here, the rule had its foundation in the fact that the wife, so far at least as the real property of the husband was concerned, had no heritable interest until the birth of a child; that the rule that marriage plus birth of a child revoked the will had its foundation in a change of circumstances creating new heritable rights, as well as new moral and legal obligations, this being considered enough (1) to warrant the assumption that testator, had he adverted to the matter, would have changed his will, and (2) to call for a rule of law based on the equities of the situation treating the new circumstance as effecting a revocation. On the point that the rule depends upon this principle, appellant relies on Will of Battis, 143 Wis. 234, 126 N.W. 9, 11,139 Am.St.Rep. 1101, to the effect that the rule that changes in conditions and circumstances of testator revoke the will or part thereof by implication ‘* * * rests on the idea that the changed condition and circumstances of the testator respecting his property, his family, or beneficiaries, imposing different moral and legal duties, affords strong evidence that the testator intended that his will should become revoked as to the provisions affected by such subsequent change in the testator's condition and circumstances.’ From this premise appellant argues that implied revocation can never, as respondents claim, be governed by a fixed rule of common law unchangeable except by legislative enactment; that in its very nature the implication must shift with the creation of new and important property rights in persons with whom the testator subsequently enters into material or parental relationships. From this appellant concludes that when in Wisconsin husband and wife, in the absence of issue, were made heirs of each other, that was such a fundamental change in property rights; such a radical increase in the rights of the wife; such an enlargement of the legal and moral obligations of the husband as to bring into operation an implication of revocation.

Respondents reply that in this country statutes generally secure to the wife, regardless of the birth of issue and of the terms of any will by her husband seeking to exclude her, a specified share of her husband's estate; that in consequence there is no occasion to imply a revocation or to hold one as a matter of law since the widow is protected by legislation to the extent that public policy considers that she should be protected. It is further insisted that the common law rule could not have been founded upon the principle asserted by appellant since the wife at common law prior to the birth of a child had dower rights and a heritable right in personal property-something that is of much more importance in modern times than an interest in real property. This controversy is not new and there has arisen a conflict of authority in this country in respect of it. From our examination of these authorities, it is clear that the great weight of authority has been against appellant's position. Hulett v. Carey, 66 Minn. 327, 69 N.W. 31,34 L.R.A. 384, 61 Am.St.Rep. 419;Hoy v. Hoy, 93 Miss. 732, 48 So. 903, 25 L.R.A.,N.S., 182, 136 Am.St.Rep. 548,17 Ann.Cas. 1137;Hoitt v. Hoitt, 63 N.H. 475, 3 A. 604,56 Am.Rep. 530;Goodsell's Appeal from Probate, 55 Conn. 171, 10 A. 557;Bowers v. Bowers, 53 Ind. 430;In re Alder's Estate, 52 Wash. 539, 100 P. 1019;Vanek v. Vanek, 104 Kan. 624, 180 P. 240;Herzog v. Trust Co. of Easton, 67 Fla. 54, 64 So. 426, Ann.Cas.1917A, 201;Fleming v. Blount, 1941, 202 Ark. 507, 151 S.W.2d 88;Scherrer v. Brown, 21 Colo. 481, 42 P. 668;Tyler v. Tyler, 19 Ill. 151;Teopfer v. Kaeufer, 12 N.M. 372, 78 P. 53,67 L.R.A. 315.

It is our conclusion that, as a matter of principle, appellant is right that the rule of the common law is not so fixed as to be within the constitutional protection of Article XIV, sec. 13, Wisconsin Constitution; that being a rule of implication, it is necessarily one in which changes of circumstances can change specific applications of it. It should be pointed out, however, at this stage, that whatever application of the rule to specific situations has been made must be held to be an important rule of property and one that should not be disturbed unless clearly wrong. Bucher v. Cheshire R. Co., 125 U.S. 555, 8 S.Ct. 974, 31 L.Ed. 795;Wisconsin Power & Light Co. v. City of Beloit, 215 Wis. 439, 254 N.W. 119;State ex rel. Gisholt Mach. Co. v. Norsman, 168 Wis. 442, 169 N.W. 429;Will of Butter, 239 Wis. 249, 1 N.W.2d 87.

This is a field in which the greatest issue at stake is that of certainty. The testator in the instant case could have drafted a new will the day after his marriage cutting his widow down to her statutory rights, or giving her all of his property. The only question is what happens when he did not bother to do this. It is a situation in which it is a great deal more important to have a certain and understandable rule than to have one that appears to be logically more sound. Hence, before going any further into the merits of appellant's contentions we ought to examine the claim of respondents that a rule contrary to appellant's position has been established in this state and has become a rule of property. If it has and is not clearly and indisputably wrong, it ought not to be changed by this court. We proceed, therefore, to a consideration of the Wisconsin cases.

We start with the case of Will of Ward, 70...