In Re Blanchard Estate

218 N.W.2d 37, 391 Mich. 644, 71 A.L.R. 3d 1284, 1974 Mich. LEXIS 159

• Court: Michigan Supreme Court
• Decided: May 21, 1974
• Docket: 7 January Term 1974, Docket No. 54,525
• Status: Published

Opinions

M. S. Coleman, J.

FACTS

Virginia and Frederick Blanchard were married on November 15, 1949. In 1952, Fred executed a will designating Virginia as executrix and primary beneficiary.

The Blanchards were divorced in 1960. A property settlement was made. Virginia maintains that the couple remained "on close terms” and that she cared for Fred when he was injured in an airplane accident. They were remarried in 1963 and lived together until Fred’s accidental death in 1970.

Virginia petitioned for admission to probate of the 1952 will. This was opposed by decedent’s children who claimed that the will had been revoked by the divorce. They sought to have Fred’s estate pass intestate.

The probate court denied Virginia’s petition. The circuit court affirmed as did the Court of Appeals at 43 Mich App 752; 204 NW2d 730 (1972). In the latter decision, Chief Judge Lesinski recognized that it "gives rise to what might be a harsh result”. However, the Court of Appeals held that prior decisions of this Court permitted no other result.

ISSUE

Should the will, executed during the marriage and unaltered at any time after execution, be revoked by implication of law when the parties divorced, remarried and subsequently lived together for seven years until the testator’s death?

STATUTE

This case involves that portion of MCLA 702.9; MSA 27.3178(79) emphasized below:

"No will nor any part thereof shall be revoked, unless by burning, tearing, canceling or obliterating the same, with the intention of revoking it, by the testator, or by some person in his presence and by his direction; or by some other will or codicil in writing, executed as prescribed in this chapter; or by some other writing, signed, attested and subscribed in the manner provided in this chapter for the execution of a will; excepting only that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator.”

DISCUSSION

The statute above sets forth specific acts which may revoke a will. Further, a revocation may be "implied by law” if "subsequent changes in the condition or circumstances of the testator” warrant such action.¹ "Subsequent changes” do not mandate revocation. The statute provides that the listing of specific acts of revocation does not preclude a finding that "subsequent changes” might also necessitate the court’s revocation of the will. The facts of this case demonstrate the validity of the 1952 will.

In Lansing v Haynes, 95 Mich 16; 54 NW 699; 35 Am St Rep 545 (1893), the testator and his wife executed mutual wills. There was a subsequent divorce accompanied by a property settlement. The Court noted that the "feeling between them, at least upon her part, became bitter”. The wife stopped speaking to the husband three months before the divorce. She went out of her way to avoid contact with him.

The testator died without having revoked his will. The Court held that a revocation should be implied by law:

"By the decree of divorce in this case, the parties became as strangers to each other, and neither owed to the other any obligation or duty thereafter. There was, therefore, a complete change in these relations * * * . It is not * * * the natural presumption that, after the testator had settled with her, had conveyed to her a good share of his property, and they, by agreement, had terminated all their property, as well as their marital, relations, the will executed nearly 10 years before should remain in force, and operate upon his death as a conveyance of the remainder of his property to her, to the exclusion of his heirs.”

The Court then said that the possibility of a different result would be "unusual, and contrary to common experience” and that the decision should be controlled by a "reasonable presumption” as to testator’s intention.

Lansing established the proper rule for determining whether a revocation should be implied by law, to wit: such presumption must be réasonable and must take in consideration all of the circumstances. It follows that revocation should not automatically occur by operation of law, but only when the conditions or circumstances warrant such operation.

After the Lansing decision, and purportedly based upon that decision, came Wirth v Wirth, 149 Mich 687; 113 NW 306 (1907) and In re McGraw’s Estate, 228 Mich 1; 199 NW 686 (1924).² In these latter cases there are statements to the effect that a divorce coupled with a property settlement creates a presumption of revocation which cannot be rebutted by the acts or declarations of the divorced parties. These statements are, in fact, contrary to the decision in Lansing which urges a "common sense” and "reasonable” interpretation of the law. An irrebuttable presumption leaves no room for reason to fall upon fact nor for common sense to bring the application of the law into the world of reality.

In cases involving wills probated in Michigan, it is said always to be the court’s goal "to effectuate within pertinent precedential and statutory limits” the intent of the testator. Rendle v Wiemeyer, 374 Mich 30; 131 NW2d 45 (1964) citing Johnson v Atchinson, 362 Mich 296; 106 NW2d 748 (1961).³ Justice Sharpe dissenting in the second McGraw case said that the "presumption of revocation is founded upon the inference that, had the testator made a will after the divorce, his former wife would not have been provided for as she was in the will he had theretofore made”. Such an inference may not be drawn from the instant facts.

It should be noted that under the statute there is no mention of divorce and property settlement as acts of revocation. The only reference is a "revocation implied by law from subsequent changes in the condition or circumstances of the testator”.

Each case must be analyzed within the perimeter of its particular facts. The defendants claim that the divorce and property settlement revoked the testator’s will. They would not consider as a succeeding condition or circumstance the subsequent remarriage and the maintaining of that relationship until the husband’s death.

It is understandable that a man or woman having already written one will — and none subsequently — would see no necessity to republish it or write another if the natural object of his or her bounty were the same after remarriage.

In this case, between the making of the will and testator’s death, there was, in addition to the divorce and property settlement,- a remarriage of the testator and beneficiary named in the will and séven years of marriage thereafter. At the time of the testator’s death, the beneficiary and the testator were not strangers to each other. Each owed the other obligations and duties. The beneficiary named in the will, the testator’s wife, was a natural object of his bounty. At the time of death, testator’s circumstances in these respects were the same as when he executed his will.

It is not the natural and reasonable presumption from the chain of conditions and circumstances in this case, including divorce, property settlement and remarriage, to imply revocation under the Lansing rule. The words "subsequent”, "condition” and "circumstances”, according to their generally accepted meaning, cannot be restricted to the facts of divorce and property settlement — and no more.

Neither statute nor common law justify a rule that there is an irrebuttable presumption (a conflict of terms)⁴ of revocation of a prior will arising upon divorce and property settlement. To the extent that Wirth and McGrawgive credence to such a claim, they are overruled.

If, • as in Lansing, we draw a reasonable presumption, taking into consideration all of the conditions and circumstances towards the end that the testator’s intent be respected and followed, we must reverse the Court of Appeals. Such is our conclusion.

Reverse and remand to the probate court for proceedings consistent with this opinion.

T. G. Kavanagh, Williams, and Levin, JJ., concurred with M. S. Coleman, J.

1 Words should be given a common construction according to their generally accepted meaning. Hawley v Snider, 346 Mich 181; 77 NW2d 754 (1956).

2 Retried and appealed, 233 Mich 440; 207 NW 10; 42 ALR 1283 (1926).

3 Also see cases cited in the decision of In re Graham Estate, 379 Mich 224; 150 NW2d 816 (1967) supporting this statement:

We speak of the problem as being one of determining the testator’s intent. That intent must govern.

Although these cases pertain to the construction of will, the same philosophy is pertinent in determining whether certain changes in circumstances and conditions should imply a revocation. The statute should not be interpreted in a manner which frustrates the testator’s intent.

4 9 Wigmore, Evidence (3d ed), § 2492, p 292:

"In strictness there cannot be such a thing as a 'conclusive presumption’. Wherever from one fact another is said to be conclusively presumed, in the sense that the opponent is absolutely precluded from showing by any evidence that the second fact does not exist, the rule is really providing that, where the first fact is shown to exist, the second fact’s existence is wholly immaterial for the purpose of the proponent’s case; and to provide this is to make a rule of substantive law, and not a rule apportioning the burden of persuading as to certain propositions or varying the duty of coming forward with evidence. * * *

"The term has no place in the principles of Evidence (***), and should be discarded.”