Hoy v. Hoy

48 So. 903, 93 Miss. 732

Opinion

Fletcher, J.,

delivered the opinion of the court.

One Louis Hoy, on the 23d day of April, 1898, made a will in which he divided his property equally between appellee, Leroy Hoy, his nephew, and his then -wife, Ellen Hoy. Some time thereafter Ellen Hoy died, -and in 1900 Louis Hoy married the appellant, Oidora Hoy, and died without making any express revocation of his will. He left no children or descendants of children. Soane time after the death of Louis Hoy, the surviving wife and the nephew, Leroy Hoy, were advised by counsel that the widow had the right to renounce the will and thereby secure one-half of the estate; and upon this understanding of the measure of her rights she executed a conveyance of all her property to appellee, reserving a life estate in the home place upon the further agreement by appellee that the widow should be paid an annuity of $75. This agreement was entered into in the utmost good faith by both parties to the contract, and seems to have been faithfully, carried out by Leroy Hoy. Appellant, however, having been advised that the will of her husband was by operation of law revoked by the second marriage, and that, instead of being entitled to one-half of the estate, she was in faet the sole heir of her husband, brought this suit to have her deed of conveyance sét aside, upon the ground that it was entered 'into under a misapprehension of her legal rights. The chancellor, upon a record which presents no issues of fact dismissed the bill; and from this decree this appeal is prosecuted.

It is argued on behalf of the appellee that, since the deed was executed with full knowledge of the facts, it must stand, even if conceded to have been made under a mistake as to the law. We think, however, that the purport and effect of the -holding in A. & V. R. Co. v. Jones, 73 Miss. 110, 10 South. 105, 55 Am. St. Rep. 188, destroy this contention. The deed was admittedly executed in the light of appellant’s understanding of her legal rights as derived from the advice of eminent counsel, ’ and it is clear to us that she would not have made the agreement had she believed that she was entitled to the entire estate. The mistake, if one was made, was as to her interest in the property, and this was á “mistake as to her own private legal rights and interests.” 2 Pomeroy, Equity Jurisprudence, 811 et seq. We are therefore, and for the first time in Mississippi, called upon to decide whether marriage, without birth of issue, revokes the will mad¿ by a person before marriage, and not in contemplation of marriage. There is no dispute as to the com mon-law rule upon this subject. The authorities are all agreed that at common law the will of an unmarried man is not revoked by implication upon his marriage, unless a child be bom of such marriage, but that the birth of issue does work a revocation or at least raises a strong presumption that a revocation has-been wrought. This qualification of the rule will be considered' presently in considering one phase of the argument.

It is said, however, on behalf of the appellee, that the statutes of Mississippi provide a complete scheme by which wills are executed and revoked; that the law of wills and their .revocation in this state is all contained in the statutes, and that we need not concern ourselves with the common-law doctrine of implied revocations through marriage, or marriáge and birth of issue; that sections 4489 and 4490 of the Annotated Code of 1892 are inconsistent with any theory of implied revocations, except such as are there mentioned and provided for. It must be admitted that the argument is forceful, and might prevail, if it were a matter of first impression in this state. Certainly this view has been taken by other courts of respectable authority. Thus by the civil code of California it was provided, by section 1292: “Except in the cases in this chapter mentioned, no written will, nor any part thereof, can be revoked or altered otherwise than: (1) By a written will or other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which a will should be executed by such testator; or, (2) by being burnt, tom, canceled, obliterated or destroyed with the intent and for the purpose of revoking the same, by the testator himself, or by some person in his presence, and by his direction.” In construing this statute the California court held that: “The effect of these provisions is to do away with the doctrine of implied revocation, which was for so many years a subject of controversy in the English courts, and which, in many of the states of this country is still permitted, under a clause in their statutes authorizing a revocation to be implied by law from subsequent changes in the condition or circumstances of the testator.’ ” In re Comassi's Estate, 107 Cal. 1, 40 Pac. 15, 28 L. R. A. 414. So in Texas, where the statute was substantially the same as ours (Pasch. Dig. arts. 5363 and 5364), it was held: “A statute which accomplishes effectually, as the one under consideration does, by engrafting upon every will the statute itself, the purpose of protecting, without revocation, the interest of after-born children, evidences that it was not the intention of the legislature, in providing how wills might be revoked, or for what causes, to permit them to be revoked by implication in order to protect such persons, and thus let in the claims of all persons to a part of the estate who, but for the will, would bo entitled to take under the statutes regulating the descent and distribution of the estates of intestates.” Morgan v. Davenport, 60 Tex. 230.

But the difficulty which precludes us from adopting this simple and apparently obvious view is that as early as 1854 the High Court of Errors and Appeals in this state plainly repudiated this contention. By comparing our present statute with section 15, c. 49, art. 1, p. 649, Hutch. Code, it will be seen that the present statute is identical with the statute in effect in 1854, and it was then said: “It is urged by the counsel for the appellants that the common-law rule, that the marriage revokes the will of a woman before marriage, is changed by the act of 1821, which provides that ‘no devise made,’ according to the statute, ‘or any clause thereof, shall be revocable but by the testator or testatrix canceling or obliterating the same, or causing it to be done in his or her presence, or by a subsequent will, codicil, or declaration in writing made as aforesaid.’ Hutch. Code, p. 649. This statute is, in substance, the same as the sixth section of St. 29 Car. II. But, notwithstanding that statute and others to the same effect in this country, it is well settled in England and the United States that the statute applies to acts of direct and express revocation, and that a will may be revoked by implication or inference' of law by various circumstances not within the purview of the statute (Christopher v. Christopher, Dick. 445; Doe v. Lancashire, 5 T. R. 49; Brush v. Wilkins, 4 Johns. Ch. [N. Y.] 507), among which is included the subsequent marriage of the woman (4 Kent’s Com. 527; Osgood v. Breed, 12 Mass. 526). A doctrine so firmly settled, we do not feel disposed to call in question.” Garrett v. Dabney, 27 Miss. 335. This view was clearly rennnouuced in the case of Jones v. Moseley, 40 Miss. 261, 90 Am. Dec. 327, where it was stated that a will would be impliedly revoked by certain changes in the condition of the testator. So, in view of the fact that our present statute has been five times re-enacted without change since the decision in Garrett v. Dabney, we cannot see our way clear to disregard the holding in that case, sanctioned as it is by the lapse of time and the numerous readoptions of the statute so construed. We must recognize the doctrine that implied revocations are still possible in spite of the statute.

We have seen that at common law a will was generally held to be revoked by implication in case of marriage, accompanied by the birth of issue, but that this result was not accomplished by marriage alone. It is contended by appellant, upon principle, and upon the authority of Tyler v. Tyler, 19 Ill. 151; In re Teopfer's Estate, 12 N. M. 372, 78 Pac. 53, 67 L. R. A. 315; Morgan v. Ireland, 1 Idaho 786; Brown v. Scherrer, 5 Colo. App. 255, 38 Pac. 427, and Colcord v. Conroy, 40 Fla. 97, 23 South. 561, that this rule of the common law, while in force to .a limited extent, is yet so modified of necessity by reason of the change in the status of the wife — a change wrought by statute, and which permits the wife to inherit directly from the husband — that marriage alone is now sufficient to work an implied revocation. It is said that the reason why, at common law, marriage alone did not lead to revocation, was because by marriage no new heir was brought into the family, but only a person whose property rights were determined by the law of dower; that the wife never took as heir upon the death of her husband, but as an incident to the marriage, and by virtue of the implied covenants of the marriage contract. Therefore it is said that, since by our law the wife is an' heir, the rule upon any reasonable or logical interpretation mtist be held to be now in this state so modified as to make marriage alone the equivalent of marriage and birth of issue. Unquestionably this view finds some support in the authorities mentioned, although all of them, except Brown v. Schemer, may be explained upon a consideration to be mentioned presently.

Looking at the question alone from the viewpoint of the reason of the common-law rule, it is said that the doctrine of implied revocation rests, not upon the view that without a revocation issue subsequently loom would not otherwise be provided for, but solely upon the ground that the testator will not be presumed to have intended to disinherit the natural objects of his bounty. The importance of this distinction is obvious. If the first be the correct view, the reason of the common-law rule does not wholly fail in this state, since the law makes special provision for the wife, in that she is given the right to renounce the will and thereby defeat her husband’s neglect or hostility. But if the second view be correct, that the will must be held to be revoked because the testator is not presumed to intend to omit the natural objects of his bounty, this is unquestionably a valid argument in favor of appellant’s contention. This second view seems to have much weight with Chancellor Kent in his opinion in the leading case of Brush v. Wilkins, 4 Johns. Ch. (N. Y.) 506. In the opinion in this case he says: “It had become a settled rule of law and equity, as early as the year 1115, that implied revocations of wills were not within the statute of frauds, and that marriage and a child, taken together (though neither of them taken separately was sufficient), did amount to an implied revocation, and that such presumptive revocations might not be rebutted and controlled by circumstances. Without going minutely into all the cases, a cursory view of them will be sufficient to establish this position, and it can be shown to have received continued and unceasing sanction down to this. day."

Let’ us notice particularly that Kent states that the revocation is only presumptive, and that this presumption may be rebutted and controlled by circumstances. It would seem that, this idea is entirely consistent with the view that the rule is-bottomed upon a presumed intent, rather than upon the alleged disinclination of the law to leave an heir unprovided for; for, if the revocation is implied because of a presumption as to intention, it must be essentially a presumption of fact, and hence a rebuttable presumption. Now, if Kent is correct as to this-being only a presumption, this case was clearly properly decided ; for, the will being only presumptively revoked, it might well be that the widow knew of facts and circumstances which would have tended to overthrow this presumption. If so, she did no more, in executing the deed, than to compromise a doubtful case, or, rather, to decline a contest which she might have-known would be hopeless. It is no answer to this observation to say that the burden of proof was upon the appellee to show the existence of these facts and circumstances. That would, of course, be true in a contest directly affecting the will. But this is a suit predicated of the contention that the will Ayas utterly destroyed by the second marriage, and that the surviving widow was certainly entitled to the property. If there were, at the time of the settlement between the parties, unsettled issues of fact,, vvhich there might well have been, rendering the result doubtful, there was then a sufficient basis for a settlement which the courts would be slow to disturb; and this, we think, is what comes of the víoav that the common-law rule rests upon a presumed intent.

We have intimated that, but for the holding in Garrett v. Dabney, supra, we would incline to the view that our statutes furnish an all-sufficient scheme in which revocations by implication have no place. Let us see what Garrett v. Dabney, does hold, and why it holds it. The opinion in that case gives, as the sole reason for allowing implied revocations despite the statute, that the statute is almost an exact’ rescript of the statute of England (St. 29 Car. II), and that the English courts, in construing this statute, had universally held that implied revocations áre not thereby abolished. This must mean that the English statute was adopted in Mississippi, together with the construction put upon it by the English courts. In other words, as we see it, our court in Garrett v. Dabney, construed our statute as if there was read into it a proviso that implied revocations would still occur in case of marriage with birth of issue, but not in case of marriage alone. The Massachusetts court in Swan v. Hammond, 138 Mass. 45, 52 Am. Rep. 255, held that a statute providing, “but that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator,” had the effect of limiting an implied revocation to the circumstances under which revocation would occur at common-law; and to the same practical effect is Brown v. Clark, 77 N. Y. 369. If these words, placed in a statute by the legislature, work this result, why is the same result not reached when they are written into the statute by the court?

No more convincing discussion of this question has been called to our attention than is found in the opinion of the New Hampshire court in Hoitt v. Hoitt, 63 N. H. 475, 3 Atl. 604, 56 Am. Rep. 530. That court held that a subsequent marriage without birth of issue did not revoke a will, and upon the general subject made these pertinent observations:

“The English statute was doubtless the basis and model of our statute, directly or indirectly; and the proviso in the latter we think, is to be regarded as merely explanatory for the preceding part of the section, prescribing the manner of express revocation.. Practically, and in effect, it was an adoption, under then existing conditions, of such implied revocations as had been introduced and established by the English courts, contrary to the plain meaning of the English statute, and solely through the usurpation of legislative power. But the English courts did not go the length of establishing a rule that revocation might be shown by any change of circumstances affording satisfactory evidence of the testator’s revoking intention, but stopped far short of it, and restricted its application to a few exceptional cases, as- to which it was held the statute did not apply. Hence there is no tenable ground for holding that any causes of revocation were intended by our legislature to be embraced in the proviso to the act of 1822, aside from the existing exceptions established by the English courts upon supposed equitable considerations; and much less can it be held that any alteration was effected or intended by the revision of 1842, making the proviso a separate section and slightly changing its. phraseology. And as strongly tending to show that the purpose of the legislature was such as had been indicated, and that such ‘ has been the universal understanding of the bar of this state,- it is a significant fact that no litigation has arisen as to- the legislative intent, or the meaning of the language used in its expression, during the more than sixty years which have elapsed since the statute was first enacted.”

This opinion makes two observations of value here: First, that the whole doctrine of implied revocation is a judicial defeat of a plain legislative intent, and second, that it rests upon equitable considerations which can only be such as grow out of the manifest injustice of leaving an heir otherwise unprovided for.

The question received careful consideration at the hands of the Minnesota court in the case of Carey v. Hewlett, 66 Minn. 327, 69 N. W. 31, 34 L. R. A. 384, Am. St. Rep. 419. In view of the fact that the opinion reviews the authorities- relied on by appellant and discusses the whole question, we set out the views of this court at some length. It is there said:

“This brings us, to- the last and most important question in the case, viz.: Was the will of Hulett revoked by his marriage-to the respondent? At common law the marriage of a woman absolutely revoked her will. The reason usually given was that, a married woman having no testamentary capacity, her will was no longer ambulatory. But the marriage of a man did not revoke his previous will in regard to either real or personal estate. This was not considered such a change of condition as would work a revocation by implication or inference of law. The reason usually given was that the law made for the wife a provision, independently of the act of the husband, by means of dower. But the marriage and the birth of issue conjointly revoked a man’s will, whether" of real or personal estate; these circumstances producing such a total change in the testator’s condition as to lead to a presumption that he could not intend a disposition of property previously made to continue unchanged. The issue, the birth of which would revoke a will; must have been such as could have inherited the property which was the subject of the will, so that the effect of throwing open the property to the disposition of the law would have been to let in the after-born child or children, for whoste benefit alone the implied revocation obtained. The chief reason why marriage and the birth of issue were deemed such a change of condition on the part of the testator as would work a revocation of his will was that otherwise his issue, which was the natural object of his bounty, would be wholly unprovided for, differing in that respect from the widow, for whom the law had made provision by means of dower. Hence it seems to have been the rule that marriage and the birth of issue would not produce the revocation of a will, where provision was made by the will itself for the children of the future marriage. At common law a married woman could not inherit from her husband. In case of her husband dying intestate, she was not entitled to anything out of his estate except her dower. While by our statutes dower eo nomine has been abolished, yet the law makes provision for the -widow, independently of the act of the husband, much more liberal.than the common law did. She is entitled, first, to á life estate in the homestead of her deceased husband, free from any testamentary devise or other disposition to which she shall not have assented- in writing, and free from all debts or claims against his estate; Second, to an undivided third in fee simple, or such inferior tenure as the deceased husband was at any time during the coverture seized or possessed thereof, off one undivided third of all other lands of which the deceased was at any time during coverture seized or possessed, free from any testamentary or other disposition thereof to which she shall not have assented in writing, but subject in its just proportion with other real estate to the payment of such debts of the deceased as are not paid from the personal estate. Of the personal estate of which her husband dies possessed the widow is entitled to all his wearing apparel, his household furniture, not exceeding in value $500, other personal property to be selected by her not exceeding in value $500, a reasonable allowance for her maintenance during administration, .which, in case the estate is insolvent, is not to be for more than one year. Gen. St. 1894, §§ 4470, 4471, 4477. Such is the provision which the law makes for the widow. The statute then provides that, where the husband dies intestate, the residue of his estate, real and personal, shall descend and be distributed as follows: First, to his children and to the lawful issue of any deceased child by representation; second, if there be no child, and no lawful issue of any deceased child, then to the surviving wife.

“It is mainly on this last provision by which the wife may inherit from her husband that counsel for the respondent base their contention that in this state marriage alone will revoke by implication of law the prior will of the husband. Their argument may all be summed up- in the proposition that, inasmuch as a widow may now inherit from her husband (which she could not do at common law), therefore marriage alone effects the same change in the condition or circumstances of the husband as was effected under the common law' by his marriage, and the birth of issue who would inherit. The courts of two of three Western states have taken substantially this position. See Tyler v. Tyler, 19 Ill. 151; Morgan v. Ireland, 1 Idaho, 786; Brown v. Scherrer, 5 Colo. App. 255, 38 Pac. 427, approved and affirmed in 21 Colo. 481, 42 Pac. 668. In Tyler v. Tyler, supra, the question was not discussed at any great length, and the weight of that case as authority is somewhat impaired by the fact that in a subsequent case the court placed its refusal to reconsider the question mainly on the ground that the legislature had subsequently enacted that marriage alone, without the birth of issue, revoked a will, and hence that any decision which the court might make would be merely retroactive. The most able and forcible presentation of the argiu ments on that side of the question is to be found in the opinion of the Colorado Court of Appeals in Brown v. Scherrer, supra. But, after carefully considering all that has been said on that side, we are compelled to the conclusion that due weight has not been given to the fact that the main reason why, at common law, marriage and the birth of issue was deemed such a change in the condition or circumstances of the husband as would work as implied revocation of his prior will, was that otherwise his issue would be wholly unprovided for, a thing which was not to be supposed to have been in the contemplation of the testator; whereas, under our statutes, and, we assume, without special examination, under the statutes of those states in which the de cisions cited were rendered, even if the will stands, very liberal provision has beén made for the widow independently of any act of the husband. There is a prevailing sentiment, often expressed by courts and text-writers, that marriage alone should be deemed such a change in condition and circumstances as will revoke a prior will. A statute to that effect was passd in England in 1837 (St. 1 Vict. c. 26), followed by the enactment of statutes to the same effect in many of the states of the union. How far this sentiment may have unconsciously influenced the decisions referred to it is impossible to say; but no court has ever assumed to hold on this ground alone, and in the absence of legislation affecting the question, that the common-law rule was abrogated, or so far modified, that marriage would revoke a will.

“It is also suggested that the common-law rule had its origin in part in the ancient desire to build upon families and family estates, a consideration which has no place in this country. It is undoubtedly true that many of the doctrines of the common law had their origin in social or political conditions which have-in whole or in part ceased. But this fact alone will not usually justify courts in holding that these doctrines, when once thoroughly established, have been abrogated, any more than it would justify them in holding that-a statute had been abrogated because the reason for its enactment had ceased. Any such rule would leave the body of the common law very much emasculated, as, for example, that pertaining to real estate. While, undoubtedly, the common law consists of a body of principles-applicable to- new instances as they arise, and not of inflexible-cast-iron rules, yet where the rules of the common law have become unsuited to changed conditions, political, social, or economic, it is the province of the legislature, and not of the courts, to modify them. While we do not wish to be understood as intimating that no condition of legislation upon the-subject of the rights of married women in their estates of their husbands Avould effect by implication a change of the common-law rule, yet our conclusion is that, in view of the main reason upon which the common-law rule was based that marriage alone would not, but that marriage and the birth of issue conjointly would, revoke the prior will of a man, and in view of the very liberal provision made by statute for the widow, independently of the act of her husband, the mere fact that she may now, under the statute, in certain contingencies, inherit more from her husband, is not sufficient to warrant us in holding that the co-mmon-laAV rule has been changed, that marriage alone is such a change of condition or circumstances as will work an implied revocation of the prior Avill of the husband. We- should have stated that our statute relating to the revocation of wills is substantially, if not literally, the same as that of St. 29 Car. II, which has been so generally adopted by the American statutes.”

This view has been widely accepted. It is indorsed in Indiana (Bowers v. Bowers, 53 Ind. 430), Wisconsin (In re Lyon’s Will, 96 Wis. 339, 71 N. W. 362, 65 Am. St. Rep. 52), Connecticut (Goodsell’s Appeal, 55 Conn. 171, 10 Atl. 557), Maryland (Roane v. Hollingshead, 76 Md. 369, 25 Atl. 307, 17 L. R. A. 592, 35 Am. St. Rep. 438), and Maine (In re Hunt’s Will, 81 Me. 275, 17 Atl. 68). All of these eases, while containing some points of difference, support the doctrina' of the Minnesota case in all substantial particulars. At least, they announce the continued existence of the common-la,w rule without modification, and disregard the argument that changed conditions should work a change in the rule. In the note to Carey v. Hulett, as reported in 61 Am. St. Rep., at page 431, it is stated the common-law rule is still in effect in the Hnited States unless abrogated by statute. It is useless to say that great confidence can ordinarily be placed in the accuracy of these careful and scholarly notes. We think there can be no doubt that the decided weight of authority inclines to the view that a man’s will is not revoked by a subsequent marriage without birth of issue.

It would protract this opinion to undue length to review in detail the authorities from Florida, Idaho, Illinois, New Mexico, and Colorado, holding to the contrary view. They are criticised in the case of Carey v. Hulett, supra. But one general observation may be made. All of these cases, except Brown v. Scherrer, are decided in states where an unrevoked will would leave the widow without airy redress. If it be correct, as most of the American authorities hold, that the common-law rule is based upon the consideration that, if the will is permitted to stand, the heir would not receive any part of the estate, no reason can exist why the rule should be altered in this state, since the widow is well cared for by the right to renounce the will. It is not an accurate statement of the effect of our statute that the wife is placed iu the precise attitude of other heirs. She is more than that. She has the right to defeat absolutely any effort of the husband to prevent her participation in the estate. In this aspect, the right of renunciation is akin to that of dower. We think that the view by which we are bound is that indicated in Garrett v. Dabney, that the English statute has been incorporated into our law, and we cannot escape the conviction that the statute must be enforced as construed by the English courts.

Affirmed.