In Re McGraw's Estate

This court did not hold in the former opinion in this case (228 Mich. 1) that an implied revocation might be presumed from the mere fact of divorce. After referring to the holdings inLansing v. Haynes, 95 Mich. 16 (35 Am. St. Rep. 545), and Wirth v. Wirth, 149 Mich. 687, it was said:

"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."

The conclusion on which the action of the court was based was thus stated:

"I am of the opinion that the conditions and circumstances attending the decree of divorce are sufficient upon which to presume an implied revocation of his will."

Under the rule of stare decisis, so uniformly followed in this State, the law as thus stated is binding on the *Page 446 court in disposing of the case before us. It must be borne in mind that no proof was submitted on the former trial except the testimony offered to prove the due execution of the will and the divorce proceedings in the Rhode Island court. On the record thus made, this court held as above stated. There was no ruling made as to the right of either party to submit other proof tending to support or negative the presumption of implied revocation.

The "conditions and circumstances," to which reference was then and is now made, are that by the divorce, without a property settlement, the testator was relieved of all legal and moral duty to support and maintain proponent, and that there were no infant children born as a result of the marriage.

If this court had intended to hold, as Mr. Justice BIRD now does, that the divorce, attended by these circumstances, was sufficient in law to raise a presumption of revocation which could not be rebutted, it would have said so and no new trial would have been granted. It was clearly intimated to court and counsel that other circumstances might be shown which would affect this presumption. Would not the contestants have had the right to prove, if it were the fact, that proponent had the will in her possession at the time the divorce was granted and thereafter retained it? If so, might not proponent prove, as she did, that the will was then, and at all times thereafter, in the possession of the testator and kept by him with such other papers as clearly indicated that he had not overlooked its existence? He had every opportunity to destroy it or attach a codicil thereto. He did neither.

While as a matter of law the testator was relieved by the divorce decree of the legal duty which theretofore had rested on him to support and maintain her, may it not be shown that he had not theretofore performed *Page 447 such duty for the reason that he was unable to do so; that he appreciated the fact that his wife might be better able to secure employment if unmarried, and that he was willing that the provision he had made for her in the will, expectant upon his receiving a share of his father's estate, should stand and to that extent act as recompense to her for his failure in that respect?

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. In law he had the right to dispose of his property as he pleased. He had no children. If he believed that he was alone to blame for the separation that caused the divorce, and still retained his affection for his former wife, he was at liberty to permit the provision he had made for her in the will to stand. Instances of continued affection and desire to bestow property upon a party from whom one has been divorced are not infrequent. A deed executed under such circumstances was sustained in Stevens v. DeBar, 229 Mich. 251.

The conditions and circumstances recognized by the courts to create the exception in the statute at the time 'it was enacted were, alteration in the estate devised, marriage of the testator if a woman, and birth of children to the testator. To these this court added divorce accompanied by a property settlement in the cases above cited. If we are now to extend the exception, as was held in the former opinion, it would seem that we should extend the rule as to the proof which might be considered to determine the mental attitude of the testator at the time the decree was granted, this being the time at which the intent to revoke is implied.

In a suit to establish a lost will, a presumption of *Page 448 revocation arises from the fact that the will cannot be found. It will be presumed that it was destroyed. But this presumption may be rebutted, not only by the circumstances and conditions showing where it was kept and who had access to it, either before or after the death of the testator, but by proof of the acts, declarations and conduct of the testator indicating that the will made by him had not been destroyed or otherwise revoked. This court has many times so held. In re Keene'sEstate, 189 Mich. 97 (Ann. Cas. 1918E, 367), where the earlier cases are cited; In re Walsh's Estate, 196 Mich. 42 (Ann. Cas. 1918E, 217); In re Bradley's Estate, 215 Mich. 72. It clearly appears from what is said in all these cases that the purpose of receiving testimony as to the declarations of the testator is to determine his state of mind, his mental attitude at the time the will was made, and the continuance of that attitude until his death.

In the case at bar, no presumption of law arises from the mere fact of divorce. It was so held in the former opinion. The burden is then cast on the contestants to submit proof from which a revocation will be implied by law. The reasoning which will admit proof of the intent of the testator to revoke his will or let it stand is much stronger in this case than in the case of a lost will, as in the latter the law implies a presumption that it has been revoked by its destruction.

In my opinion, no question of waiver is presented. The wife could not have secured a provision for alimony in the decree which would have been enforceable in this State, because there had been no personal service on the defendant. Fisher v.Fisher, 224 Mich. 147. Contestants' counsel so concede. The proponent is not here seeking to recover alimony. As was said in Re Brown's Estate, 139 Iowa, 219 (117 N.W. 260):

"The wife's rights thereunder after the testator's *Page 449 death rest not upon coverture, but are conferred by a will which has not been revoked."

The lack of authority bearing on this precise question, and I can find none, is due to the fact that the law seems well settled in other jurisdictions that a revocation will not be implied from the granting of a decree of divorce unless a property settlement has been theretofore made. Our former holding "that the conditions and circumstances attending the decree of divorce" may be considered and be "sufficient upon which to presume an implied revocation" is an innovation. It is the law of this case, however. Such proof can be considered relevant only because it tends to disclose the intent of the testator. If the law will imply a presumption of such intent from such conditions and circumstances, proof tending to rebut such a presumption is, in my opinion, admissible.

The judgment should be affirmed, with costs to appellee.

Justice MOORE took no part in this decision.