White v. Conference Claimants Endowment Commission of the Idaho Annual Conference of the Methodist Church

• Decision Date: 27 February 1959
• Docket Number: No. 8585,8585
• Citation: 336 P.2d 674,81 Idaho 17
• Parties: Winnifred WHITE, Executrix of the Estate of Edgar L. White, Deceased, Plaintiff-Respondent and Cross-Appellant, v. CONFERENCE CLAIMANTS ENDOWMENT COMMISSION OF THE IDAHO ANNUAL CONFERENCE OF THE METHODIST CHURCH; Board of Missions and Church Extension of Idaho Annual Conference of Methodist Church; Beulah Cass; Methodist Church of Filer, Idaho; Edna Stillwell, Defendants-Appellants and Cross-Respondents, and Edgar L. White, Jr., and Virginia G. White, husband and wife, Defendants-Respondsents and Cross-Appellants, and State of Idaho, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 674

336 P.2d 674

81 Idaho 17

Winnifred WHITE, Executrix of the Estate of Edgar L. White, Deceased, Plaintiff-Respondent and Cross-Appellant, v. CONFERENCE CLAIMANTS ENDOWMENT COMMISSION OF THE IDAHO ANNUAL CONFERENCE OF THE METHODIST CHURCH; Board of Missions and Church Extension of Idaho Annual Conference of Methodist Church; Beulah Cass; Methodist Church of Filer, Idaho; Edna Stillwell, Defendants-Appellants and Cross-Respondents, and Edgar L. White, Jr., and Virginia G. White, husband and wife, Defendants-Respondsents and Cross-Appellants, and State of Idaho, Defendant-Respondent.

No. 8585.

Supreme Court of Idaho.

Feb. 27, 1959.

Earl E. Walker, Twin Falls, for defendants-appellants and cross-respondents.

Stephan, Stephan & Heap, Twin Falls, for plaintiff-respondent and cross-appellant.

Benoit & Benoit, Twin Falls, Stuart & Stuart, Chariton, Iowa, for defendants-respondents and cross-appellants.

Graydon W. Smith, Atty. Gen., Harold Randquist, Asst. Atty. Gen., for defendant-respondent.

SMITH, Justice.

May 19, 1948, Edgar L. White, Sr., then unmarried, executed his will. He bequeathed to appellants Methodist Church organizations sums totaling $12,500, to appellant Beulah Cass $5,000, and to appellant Edna Stillwell $2,500, all payable in five equal annual payments beginning at the end of the first year after death. He bequeathed and devised the remainder of his estate, which included 193 1/2 acres of farm land, to his son, respondent Edgar L. White, Jr. He directed that the probate and distribution of the estate be not concluded until the end of the fifth year following death.

February 5, 1949, Edgar L. White, Sr., married, and on the same date, after marriage he executed and delivered a deed, in consideration of the sum of $1 and love and affection, conveying 80 acres of his land to his wife, Winnifred, as her sole and separate property.

July 31, 1949, Edgar L. White, Sr., in his own handwriting, wrote, signed and dated an instrument, hereinafter referred to as Exhibit L, certifying that he had given his automobile, trailer house, camera equipment and other personal effects as she may desire, to his wife. He then directed in the instrument:

'She shall have rent free use of Residence where she now resides for 5 years from date of my death together with income from the farm.

'After five years from date of my death the place of 113- 1/2 acres shall become the property of my son.'

He named his wife as executrix. He directed her to take such instrument to his attorney, which she did. The attorney prepared a codicil which she took to Mr. White at the hospital, where he was a patient. The district court found that Mr. White executed and published the codicil July 5, 1949.

Mr. White recited in the codicil that he reaffirmed and republished his will of May 19, 1948, 'except as revoked, modified and changed by this Codicil;' also that since marriage he had given to his wife his automobile and trailer house, and had conveyed to her certain real property interests, as her sole and separate property. He then bequeathed to her his camera equipment and certain personal effects. He then recited in the codicil:

'I also give and grant to the said Winnifred White the right to hold exclusive possession of and reside in the home located on my home place comprised of 113- 1/2 acres, where we now reside, for the full period of five (5) years following my demise, and at the end of said five (5) year period possession thereof shall be surrendered to my son, Edgar L. White, Jr. During the said period of five (5) years following my demise the said Winnifred White shall have and she is hereby given and bequeathed all the rents accruing from said home place where we now reside.'

The codicil contains further direction:

'And I now revoke those certain provisions of my said Last Will and Testament dated May 19, 1948, insofar as they conflict with the terms and provisions of this Codicil.'

No formal marriage settlement contract was ever entered into between Edgar L. White, Sr., and his wife.

The death of Edgar L. White, Sr., occurred August 6, 1949.

December 4, 1950, decedent's estate was admitted to probate in the Twin Falls County probate court, and Winnifred White was appointed executrix of decedent's will and codicil; notice to creditors was first published March 2, 1952; inventory and appraisement of the estate was filed March 7, 1952, and due copy mailed to the Inheritance Tax Division of the State of Idaho. No determination of gross value of decedent's estate, nor of the amount of any transfer tax has ever been made.

May 17, 1955, more than five years after decedent's death, plaintiff, executrix, filed a complaint for declaratory judgment, requesting the construction of the will and codicil and directing the manner of executing its trusts; also requesting determination of the question whether by virtue of I.C. § 14-405, she should pay any transfer tax to the State of Idaho, and citing the defendants to set forth and submit their several claims and demands for decision.

The various assignments of the parties appellant raise the following questions for determination:

First, was the testator's original will of May 19, 1948, revoked by his marriage February 5, 1949?

Second, what must be determined as the date of each of the following occurrences:

(1) of execution of the codicil; and

(2) republication of the original will, if not theretofore revoked; or

(3) republication and revival of the original will if theretofore revoked?

Third, did the trial court err in admitting in evidence testator's hand written instrument, Exhibit L?

Fourth, was the original will or a substantial portion thereof revoked by the codicil? If so,

(1) did the codicil revoke all the general bequests in the original will, or

(2) only the charitable bequests?

Fifth, must the executrix pay to the State of Idaho any tax imposed or computed upon the value of the properties of decedent's estate transferred in excess of the statutory exemptions, before the executrix will be permitted to distribute and close the estate?

In approaching the first question whether testator's original antenuptial will of May 19, 1948, was revoked by his marriage of February 5, 1949, I.C. § 14-312 appears controlling. Such section of the statute reads:

'Revocation by marriage.--If, after making a will, the testator marries, and the wife survives the testator, the will is revoked, unless provision has been made for her by marriage contract, or unless she is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation must be received.'

This section of the statute contemplates:

(1) The testator's antenuptial will;

(2) The subsequent marriage of testator;

(3) The death of testator;

(4) The survival of the wife;

(5) Revocation of the will, unless

(a) provision has been made for her by marriage contract, or

(b) she is provided for in the antenuptial will, or

(c) she is mentioned therein in such a way as to show an intention not to make such provision.

Each alternative requirement set out in the 5th paragraph contemplates completed performance prior to the marriage, in order that the will be not revoked.

Here, we have an antenuptial will which neither provided for Winnifred White, nor mentioned her therein in such a way as to show an intention not to provide for her, the subsequent marriage, the testator's death, and his wife's survival. Admittedly there was no written instrument of marriage contract; but was there in existence prior to the marriage any marriage contract contemplated by the statute?

Appellants Methodist Church organizations in their amended answer allege that Edgar L. White, Sr., pursuant to an oral antenuptial marriage agreement, agreed that upon marriage he would, and on February 5, 1949, after the marriage he did, convey to his wife, Winnifred, the 80 acres of land, describing it, by deed duly executed and delivered.

Such conveyance after marriage, by testator to his wife, fails to constitute proof of consummation of a marriage contract contemplated by the statute. Such evidence cannot be received to rebut the presumption of revocation of the antenuptial will, simply because the statute requires the evidence to be the marriage contract itself showing 'provision has been made for her,' the wife yet to be, naming her, in consideration of the marriage to be consummated; provision to be made for her after marriage is insufficient. See In re Poisl's Estate, 44 Cal.2d 147, 280 P.2d 789; Sternberg v. St. Louis Union Trust Co., 394 Ill. 452, 68 N.E.2d 892, 169 A.L.R. 545; In re Kent's Estate, 4 Ill.2d 81, 122 N.E.2d 229; In re Gherra's Estate, 44 Wash.2d 277, 267 P.2d 91; In re Steele's Estate, 45 Wash.2d 58, 273 P.2d 235; Hannah v. Beasley, 132 W.Va. 814, 53 S.E.2d 729; Annotation 127 A.L.R. 768.

Herr v. Herr, 13 N.J. 79, 98 A.2d 55, points out that a postnuptial settlement made pursuant to a parol antenuptial promise, followed only by marriage, amounts to no more than a voluntary settlement and therefore rests in the theory of gift. See also In re Corker's Estate, 87 Cal. 643, 25 P. 922; In re Smith's Estate, 15 Cal.App.2d 548, 59 P.2d 854; In re Poisl's Estate, supra.

The statute I.C. § 14-312, prohibits the reception of any evidence other than the antenuptial will and any marriage settlement contract, to rebut the presumption of revocation of the antenuptial will. The evidence herein fails to overcome such presumption. Testator's antenuptial will of May 19, 1948, was therefore revoked upon testator's marriage February 5, 1949.

The law presumes that a subsequent marriage of the testator has wrought such a change in his condition in life as to cause him to destroy or cancel the previous will. In re Axcelrod's Estate, 23 Cal.2d 761, 147 P.2d 1; In re Turney's Estate, 101 Cal.App.2d 720, 226 P.2d 80; In re Poisl's Estate, supra. This rule...