Barnett v. Bellows

Action to have a will declared revoked. From a judgment for plaintiff, defendants have appealed.

The testatrix was Delia Butler. She was a widow of John P. Butler, a former circuit judge of this State, and was childless at the time she executed the will in question. Subsequently she married one W.L.M. Witter. No children were born of that marriage. Respondent is a nephew of a deceased sister of testatrix. The residue of the estate, after making provision for certain small specific bequests, was given by the will to appellant Wineva Witter Phillips, a half sister of respondent Barnett. The estate amounted to $40,000 or more. Witter, the surviving husband of testatrix, demanded one-half of the estate under the provisions of Section 320, Revised Statutes 1919.

The trial court held that the marriage of testatrix, after she executed her will, revoked such will under the provisions of Section 510, Revised Statutes 1919, and found for plaintiff, respondent here.

Appellants offered testimony tending to show that, after her marriage to Witter, testatrix orally republished her said will. This testimony was offered on the theory that, if the court held that the will was revoked under Section 510, by the marriage of testatrix, it was nevertheless in force at the time of the death of testatrix, because she had orally republished same. The only questions for consideration, therefore, deal with the correctness of the trial court's rulings in such respects.

Section 510 reads as follows: "A will executed by an unmarried woman shall be deemed revoked by her subsequent marriage."

Appellants contend that said section has been repealed by implication because of the enactment of our several married woman's acts, including the right of a married woman to make disposition of her property by will. On the other hand, respondent contends that the married woman's acts have not had such effect.

Appellants argue that Section 510 "is but declaratory of the common law enacted at a time when a married woman could not make a will, and when her incapacity to make a will after marriage prevented her from altering or revoking one made before marriage; and, this incapacity constituted the reason upon which the common-law rule as to revocation by marriage was founded; and, since these `fetters' and disabilities have been one hundred per cent removed by enabling statutes, the reason of the rule has ceased to exist, and it has accordingly been held that the rule itself is repealed."

It is true that Section 510 is but declaratory of the common law. At common law a married woman could not make a will and dispose of her separate property unless in accordance with an antenuptial agreement. It was therefore necessary that marriage should be held to revoke a will made while the woman was single, because her subsequent marriage destroyed her power to change her will. When the common-law rule that married women could not devise their property by law was abrogated by statutes giving them the same right to make a will as was possessed by a femmesole, the reason for the common-law rule, that the will of a single woman is revoked by her subsequent marriage, ceased to exist, and, when the reason for the rule failed, the rule itself failed. Such in substance is the holding in the cases cited by appellants. However, the cases throughout the country are not all in harmony even upon that point.

But Missouri has enacted a statute on the subject which is declaratory of the common law. Let it be assumed that there is no longer in this State any reason for the existence of Section 510, for the reason that, by Laws of 1921, page 117, a woman of twenty-one years or upwards, whether married or single may dispose of her real and personal property by will. But the repeal of a statute by implication, on the ground that the reason for the existence of such statute has failed, is a thing far different from holding that a rule of the common law ceases to be in force when the reason for such common-law rule has failed.

A statute can be regarded as repealed by implication only when such statute and a subsequently enacted statute upon the same subject are in such conflict that both cannot stand. This rule is well stated in one of the cases cited by respondent. [St. Louis v. Kellman, 235 Mo. 687.] The rule is so well established that citation of further authority is unnecessary.

Appellants have not undertaken to show that there is any necessary conflict or repugnancy between Section 510, providing for the revocation of the will of a single woman upon her subsequent marriage, and any subsequent statute. It may be granted that the reason for Section 510 no longer exists. But statutes do not depend upon reason for their force and vigor. It is sufficient that the Legislature enacted the statute and that it violates no constitutional restrictions. That Section 510 no longer serves any useful purpose, because a woman upon her marriage may immediately execute the same character of will which she had executed while single, may also be granted. Yet, unless there is necessary and unavoidable conflict or repugnancy between said section and statutes subsequently enacted, Section 510 must be held to be in force. No such conflict has been pointed out and we are unable to discover any.

The right to dispose of property by will is not a natural right. It is entirely competent for the Legislature to regulate both the manner and the extent of such disposition or to impose such restrictions or conditions thereon as it wills. [State ex rel. McClintock v. Guinotte, 275 Mo. 298, l.c. 310 to 315.] As the Legislature has not seen fit expressly to repeal Section 510, it must be regarded as in full force and effect, because the Legislature has not enacted subsequent laws upon the same subject which can be said to be in conflict therewith. It may be that the Legislature should repeal said section as a useless incumbrance upon our statute books. But it is sufficient for the courts that the Legislature has not done so.

In Cohen v. Herbert, 205 Mo. 537, it was held that the will there being considered might have been contested upon the ground that testatrix contracted marriage after the will was executed. But, as the will was not contested upon that ground within five years and said will had been duly probated in New York, the will, made while testatrix was single, was given full force and effect in this State. The case really rode off on the last consideration named and the court merely assumed, without fully considering the question, that what is now Section 510 was in full force and effect. Hence what was there said about the effect of said section was obiter. But we think it was a correct statement nevertheless.

In the State of New York a statute provided that upon marriage a single woman's will "shall be deemed revoked." It was held that the so-called married woman's acts giving married women the right to make wills did not repeal the statute. [Lathrop v. Dunlop, 4 Hun (N.Y.) 213.] See also Brown v. Clark, 77 N.Y. 369, and Matter of McLarney, 153 N.Y. 416.

We hold that Section 510 is still in force and that the trial court did not err in applying such statute to the will in question and in holding that said will was revoked by the subsequent marriage of testatrix.

We will next consider whether the court erred in refusing to admit testimony tending to show an oral republication of the will by testatrix after her marriage. The offer of proof made by applicants was that, within two or three days after her marriage to Witter, testatrix called at the office of Judge Calfee, who drew the will and signed it as one of the witnesses, and that testatrix, in the presence of Judge Calfee and his daughter, who also witnessed the will, then and there orally declared in substance that the will was as she wanted it and that she wanted said will to stand and to be as it had been written.

We have examined the cases cited by appellants. They relate only to the formalities required to be observed in the publication and attestation of a will when first executed and do not discuss the requirements attending the republication of a will.

We have no doubt that the proof tendered would constitute sufficient proof of publication, if made at the time the will was originally executed and signed by the witnesses. But where the statute lays down certain formalities to be observed in the execution of the will itself, proof of oral declarations made by the testatrix tending to show reaffirmation of the will as originally written does not constitute sufficient or valid proof of republication. [40 Cyc. 1213; Carey v. Baughn, 36 Iowa 540, and cases cited; Stewart v. Mulholland, 88 Ky. 38, l.c. 45; Means v. Ury, 141 N.C. 248.]

Section 513, Revised Statutes 1919, is as follows:

"If, after making any will, the testator shall duly make and execute a second will, the destruction, canceling or revocation of any such second will shall not revive the first will, unless it appear, by the terms of such revocation, that it was his intention to revive and give effect to the first will, or unless he shall duly republish his first will."

While this statute does not provide for reaffirmation or republication of a will revoked by law, such as Section 510 declares to be the result of the subsequent marriage of a testatrix, it throws some light on the attitude of our Legislature upon the formalities required to be observed in republishing revoked wills. Under said Section 513, when a second will is destroyed, a former will cannot be revived unless it appears by the terms of the revocation of the second will that it was the intention of testator to revive and give effect to the first will, or unless he shall duly republish his first will. The word "duly" can only mean that the formalities required by the statute are observed. The cause "terms of the revocation" indicates a revocation in writing.

We, therefore, hold that the trial court did not err in excluding the proof offered which tended to show an oral republication of the will.

Appellants contend that the trial court erred in holding Section 510 to be constitutional. We do not find that the constitutionality of said statute was assailed in the answer or raised in declarations of law presented to the court. We find no ruling of the court on the point anywhere, except that such an assignment was made in the motion for new trial, which was overruled by the court. No specific section of the Constitution was there pointed out as violated by said section, nor was it anywhere suggested how the Constitution was violated. The supposed constitutional question is not properly before this court and does not require our consideration.

The judgment is affirmed. All concur.