In Re the Will of Tenner

102 S.E.2d 391 (1958) 248 N.C. 72

In the Matter of the WILL of Lukie L. TENNER, Deceased.

No. 252.

Supreme Court of North Carolina.

March 19, 1958.

Weinstein & Muilenburg, Charlotte, for propounders, appellants.

Ralph V. Kidd, Charlotte, and Archibald C. Rufty, Salisbury, for caveator, appellee.

PER CURIAM.

G.S. § 31-5.3 provides that "a will is revoked by the subsequent marriage of the maker, except as follows * * *." The two exceptions set forth in the statute do not apply in the instant proceeding.

The contention of the propounders is that when a man marries a woman subsequent to making his will, that G.S. § 31-5.3 does not revoke the will in its entirety, but revokes it only to the extent necessary to permit the wife to share in his estate as if her husband had died intestate, and otherwise his will is to remain in full force and effect. Pursuant to their theory of the law, they assign as errors the failure of the court to submit an issue to the jury as to such partial revocation of the will; the failure of the court to instruct the jury that "under the evidence in this case the entire will should not be revoked but only so much thereof should be revoked as may be necessary to allow the caveator to share in said estate to the extent provided by law if the testator had died intestate, otherwise the provisions of the will shall remain in full force and effect as written and attested to"; the court's submission to the jury of the third issue "Is said paper writing offered for probate, and each part thereof, the last will and testament of Lukie L. Tenner, deceased?"; and the court's instruction to the jury on the third issue to the effect that if the jury should find from the evidence that Lukie L. Tenner married Willie Mae Irby Tenner subsequent to the execution of his will, the jury should answer the third issue No.

The object of G.S. § 31-5.3 is set out as plainly as language can do it. The statute provides that a person's subsequent marriage ipso facto, with certain exceptions, revokes all prior wills made by such person. The statute does not provide for any partial revocation, as contended by the propounders. Sinclair v. Travis, 231 N.C. 345, 353, 57 S.E.2d 394, 400; Potter v. Clark, 229 N. C. 350, 49 S.E.2d 636; In re Will of Coffield, 216 N.C. 285, 4 S.E.2d 870; In re Will of Watson, 213 N.C. 309, 195 S.E. 772; Moore v. Moore, 198 N.C. 510, 152 S.E. 391; In re Will of Bradford, 183 N.C. 4, 110 S.E. 586; Means v. Ury, 141 N.C. 248, 53 S.E. 850. See Sawyer's Legatees v. Sawyer's Heirs, 52 N.C. 134; Winslow v. Copeland, 44 N.C. 17.

All of the propounders' assignments of error are overruled. In the trial below we find

No error.