In Re McGraw's Estate , 233 Mich. 440 ( 1926 )

This proceeding involves the last will of Howard A. McGraw, deceased. Mary H. McGraw, the divorced wife of deceased, is the proponent. The brother and sister of the deceased are the contestants. The will was allowed in probate court and affirmed on appeal in the circuit court by a directed verdict. This court reviewed the judgment and reversed it. (228 Mich. 1.) A retrial has been had and the will sustained by the verdict of a jury. It is now here again for the consideration of this court.

Howard A. McGraw and the proponent were married in November, 1912. They resided in Detroit or vicinity most of their married life. In June, 1918, Howard executed the will in question, making proponent the sole beneficiary after the payment of debts. In 1918 Howard enlisted in the United States service and went overseas leaving proponent in the home of his mother. After Howard left proponent became a chorus girl, and while following this vocation on the stage she applied for a divorce in the courts at Providence, Rhode Island, and a decree of absolute divorce was granted her on March 30, 1921. Substituted service was made upon Howard in Detroit, but he interposed no defense.

Contestants' counsel requested a directed verdict at the close of the proofs, on the ground that the material evidence did not differ from the record in the first review. This was denied, and is complained of as error. In the former opinion this court held that the circumstances and conditions existing at the time of the divorce justified the implied presumption of revocation. In view of this conclusion the only question which was open to proof when it reached the trial court again was evidence of facts which would show a republication of the will. Instead of confining the proofs to this question both parties were permitted to place before a jury a flood of evidence bearing directly and indirectly on the intention of Howard A. McGraw, whether he intended to allow his will to remain unrevoked. This testimony was incompetent and immaterial. If the will were revoked at the time of divorce, as we held, it was immaterial what the unexecuted intentions of Howard were afterward. One may not dispose of his property by mere intentions, unless they find expression in some of the ways pointed out by the statute.

Attempt was made upon the hearing in this court to reargue the question whether the circumstances and conditions supported the presumption of revocation, and it was asserted that the presumption which we found was based on the fact of divorcealone. A casual reading of the former opinion will disclose that we expressly stated we would not pass on the question whether divorce alone would support the presumption because it was unnecessary in this case, and stated the reasons why. We said:

"There has been some discussion by the courts elsewhere whether Lansing v. Haynes did not hold that revocation of wills might be implied from divorce alone. And the question is discussed in the present case. It is quite evident that in the two Michigan cases there is no such holding, because the element of settlement was present in both cases. What the viewsof this court might be on the bare question of divorceunattended by proof of any material conditions or circumstancesis a question unnecessary at this time to decide. * * *

"With both dower and alimony waived, the property matters of these parties were as effectually settled as though they had made a voluntary settlement between themselves pending the divorce proceedings. This being true, the case comes squarely within the two Michigan cases referred to." In re McGraw's Estate, 228 Mich. 1.

In our opinion on the former review we found that the circumstances and conditions, namely, the barring of dower and the waiver of alimony, plus the divorce, raised an implied presumption of revocation. It is also said "in the case at bar no presumption of law arises from the mere fact of divorce. It was so held in the former opinion." This is an error. A careful reading of the original opinion will show that no such statement was made.

The presumption which the court found in the first opinion was not rebuttable, but was conclusive. This finding established the law of the case and will not again be considered or reviewed.

Nothing was said, however, in the opinion whether the presumption of revocation was rebuttable. There appeared to be no necessity for it, as the briefs of both counsel indicated they understood the presumption was not rebuttable, and both counsel observed the rule in urging their respective claims. Proponent's counsel, in their brief on that hearing, said:

"Under the decisions, unfortunately, any evidence of testator's feelings toward proponent after the divorce, as evidenced by his words and actions, was barred, so the record is silent upon this. Revocation in these cases is entirely a question of law. The rule is fixed and we abide by it."

The question as to whether this presumption was rebuttable is so clearly settled in Wirth v. Wirth, 149 Mich. 688, that no one who reads it need be deceived. In that case the same class of testimony bearing on the intention of the testator was offered as was received in this case, but it was rejected, and this court approved it, saying:

"These facts having appeared on the trial, the proponent offered in rebuttal to show the relationship of the parties all through their married life and up to the time of testator's death as bearing upon his intention to revoke the will; that after the divorce the testator seemed to retain his affection and respect for proponent, and to realize that he alone was to blame for the separation; that he visited her and wrote her letters; and his declaration both to her and to others in relation to the balance of the property, and a declaration that he desired to have the will in question remain in the probate office and take effect after his death.

"This offer of testimony presents the question whether the change in the relations of the parties to the settlement of their property affairs raises a rebuttable presumption of revocation, or whether such divorce and settlement operatesipso facto to revoke the will. We think the circuit judge correctly held that the divorce and settlement revoked the will, and that the revocation was made and completed when the decree was signed, and that no subsequent act of the testator not accompanied by the solemnities requisite for the making of a valid will could revive the instrument in question and make it a valid will."

Lansing v. Haynes, 95 Mich. 16 (35 Am. St. Rep. 545), in considering the same question, said:

"The question is not to be controlled by a possible presumption, but by the reasonable presumption. The possibility, therefore, that deceased might have desired that the remainder of his property should go to his divorced wife cannot be considered in determining the question of an implied revocation in this case."

This rule obtains and is applied wherever statutes like ours are in force. In a recent case in the Nebraska court, where a like statute is in force, it was said:

"Circumstances occurring after the revocation is presumed to have taken place cannot be resorted to as an aid to determine whether there has been, in fact, a revocation. Declarations made by the testator after the divorce and settlement cannot, by reverting back, modify the effect of a state of facts which was at the time sufficient. To allow that to be done would indeed make unstable, if not utterly destroy, the rule itself. Where the acts, therefore, of the testator, subsequent to the occurrence of facts which work an implied revocation, are not sufficient, under our laws, to accomplish a republication of the will, we believe that the revocation must be held to stand." Martin v. Martin, 109 Neb. 294 (190 N.W. 872).

To the same effect, see Battis v. Montava, 143 Wis. 234 (126 N.W. 9, 139 Am. St. Rep. 1101); Donaldson v. Hall, 106 Minn. 502 (119 N.W. 219, 20 L.R.A. [N. S.] 1073, 16 Ann. Cas. 541, 130 Am. St. Rep. 621), and cases cited.

The judgment is reversed and one will be entered in the trial court disallowing the provisions in the will in favor of proponent. Contestants will recover their costs in both courts.

STEERE, FELLOWS, WIEST, CLARK, and McDONALD, JJ., concurred with BIRD, C.J.