#### Will of Battis: Battis, Appellant, vs. Montaba, Respondent.

*April 9*—

October *4, 1910.*

*Wills: Implied revocation of bequest: Jurisdicfion of county court: Effect of divorce: Evidence as to intent.*

1. After the admission, of a will to probate the county court may, on petition, determine whether a certain bequest made therein had been impliedly revoked by subsequent changes in the condition and circumstances of the testator.

2. A divorce accompanied by a final division of the husband's property is such a change in his condition and circumstances as impliedly revokes a provision which he had made in his will for his wife’s benefit.

3. In case of such an implied revocation of a will or of a portion thereof, evidence that the testator meant the will to stand as written cannot be received unless it shows a republication.

Appeal from a judgment of tbe circuit court for Winnebago county: Chesteb A. Eowlek, Judge.

*Reversed.*

On April 28, 1890, Allan P. Battis and tbe respondent were married. On December, 13, 1902, Allan P. Battis, tbe testator, made bis will. Thereby be gave to a cousin all bis interest in bis boiler-sbop business, tbe buildings in which it was conducted, and tbe lots upon which tbe buildings stood. Pie gave to Helen Wiesenberg, a stranger, certain bank stock and money or real-estate mortgages sufficient to make tbe *235sum of $8,000. Tbe fourth and fifth paragraphs of the will are as follows:

“Fourth. I give and bequeath unto my wife *Frances May*Battis, of the city of Oshkosh, the sum of ten thousand dollars. To have and to hold the same unto her, the said *Frances May Battis,*her heirs, executors, administrators and assigns forever.

“Fifth. I hereby give, devise and bequeath unto my brother, *Martin T. Battis,*of the city of Oshkosh, all the rest, residue and remainder of my property of every name and nature, real, personal or mixed, to have .and to hold the same unto him the said Martin T. Battis, his heirs, executors, administrators and assigns forever.”

On July 5, 1903, the respondent secured a divorce from Allan P. Battis on the ground of cruel and inhuman treatment. The judgment provided that the plaintiff should retain the piano and household furniture, and that the defendant should pay her her disbursements and $2,500 “as her full and final share and allowance in the final division and distribution of the estate and property, real and personal, of the defendant, and that the plaintiff upon payment of said” sum should be “divested of all right, title, and interest in and to the property of the defendant, either, real or personal.” Subsequent to the divorce Allan P. Battis visited at the home of his former wife, manifested a solicitude for her health and happiness, and made her small gifts. He also sustained friendly relations with her mother and family, visited regularly at the home of her mother and sister, made presents to them, and stated to them that he had made such provision in his will for his former wife that she would not suffer from want. To the knowledge of Allan P. Battis, his former wife married Abe Montaba. On January 16, 1907, Allan P. Bat-tis was sick and addressed a letter to his former wife’s mother, expressing a desire to see *Frankie*before he died, asked that she be given his regards, and wished her good luck as long 'as she lived. Allan P. Battis died May 4, 1908, leaving no *236'brothers or sisters except the brother *Martin T. Battis,*and no widow or issue.

The will was admitted to probate. The executor complied with some of the provisions of the will, and, while he still 'had some $50,000 in his hands for distribution, the residuary legatee, the brother of the deceased, petitioned the county •court to have it adjudged that the divorce and the final distribution of the estate and property of Allan P. Battis in 1903 had annulled and revoked the fourth paragraph of his will, and that the residue of the estate, after compliance with the other provisions of the will, should be awarded to the petitioner. The county court entered judgment adjudging that the bequest to the respondent was annulled by the divorce and final division and distribution of the estate and property of Allan P. Battis and that *Frances May Montaba*should take nothing under the will. Upon appeal to the cir•cuit court the court entered judgment dismissing the petition. This is an appeal from the judgment of the circuit •court.

Eor the appellant there were briefs by *Weed & Hollister,*attorneys, and *Charles Barber,*counsel, and oral argument by *Mr. H. I. Weed*and *Mr. Barber.*

Eor the respondent there was a brief by *Eaton •& Eaton,*■and oral argument by *M. II. Eaton*and *F. J. Eaton.*

The following opinion was filed April 26, 1910:

SiebeckeR, J.

The respondent avers that the admission ■of the will to probate precludes the appellant by his petition from invoking the power of the court to declare the fourth paragraph of the will to have been revoked and annulled. The argument is made that the admission of the will to probate established the whole writing and made it operative and effective in all its parts, and hence that appellant cannot in this manner establish a revocation of any part thereof. The ■question raised by the petitioner is whether or not 'pai’agraph 4 *237of tbe will was revoked by tbe judgment awarding a divorce between tbe Husband and wife, and, pursuant to sec. 2364, Stats. (1898), a final division and distribution of tbe testator’s estate. No attempt is made to annul tbe probate of the-will or to Have tbe will declared ineffective because of its-revocation. It need not, therefore, be determined wbetber tbis proceeding would lie to assail a will in its entirety after probate. Tbe inquiry for determination is wbetber tbis is-a proper and appropriate proceeding wherein tbe court may ascertain wbetber or not paragraph 4 of tbe will was revoked by -the subsequently changed condition and circumstances of tbe testator respecting bis relations to bis divorced wife. Tbis in no way affects tbe validity of tbe other parts of tbe will, its execution, or tbe admission to probate. Manifestly tbe writing probated embodies tbe. will of tbe testator. If paragraph 4 is found to have been annulled under tbe condition and circumstances submitted to tbe court, all tbe other parts of tbe writing will stand as tbe will of tbe .testator. In tbe proceeding admitting tbe will to probate tbe question-actually presented to tbe court was wbetber tbe writing propounded as decedent’s will was entitled to probate, and no-other question was presented. Tbe determination of this-question in no way specifically included a determination respecting tbe annulment of paragraph 4. Tbe legal effect and tbe validity of tbe contents of tbe writing are not involved.' As a matter of practice, such questions are usually considered separately in probate and administration proceedings. *Farmer v. Sprague,*57 Wis. 324, 15 N. W. 382. Tbe statutes impose on tbe county courts tbe duty of ascertaining what persons are entitled to receive a- testator’s estate under bis will. Tbis necessarily involves a determination of wbetber any part of tbe writing presented as tbe will should be rejected as annulled, in order that distribution of tbe estate may be directed pursuant to tbe effective parts of tbe writing. Tbis proceeding appropriately presents these considerations *238'to the court. We are therefore of opinion that appellant’s petition was properly entertained, and that the court thereby •acquired jurisdiction to determine whether this paragraph of the written paper admitted to probate as the will had been impliedly revoked and annulled under the provisions of sec. 2290, Stats. (1898), by the changed condition and circumstances of the testator subsequent to the making of the will.

This section enacts that no will shall be revoked except as therein provided, with the intention of revoking it; “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.” In *Will of Ward,*70 Wis. 251, 35 N. W. 731, it was held that this exception from the operation of this section “manifestly means such as had previously been implied at common law.” *Will of Lyon,*96 Wis. 339, 71 N. W. 362; *Glascott v. Bragg,*111 Wis. 605, 87 N. W. 853. These cases call attention to the fact that in the common law the marriage of a female, and the marriage and birth of issue in case of a man, were recognized as “subsequent changes in the condition or circumstances of the testator,” which implied a revocation of the will. The appellant contends that this exception was not intended to be limited to those cases which had arisen for adjudication in the courts prior to the adoption of the statute law of this state, but that the statute is' declaratory of a rule of justice imposed on testators respecting the disposition of their property by will in the light of their relations and duties toward persons Who would naturally be the objects of their bounty. The decisions of the courts of this country are not in harmony as to the application and scope of the rule. There has been much discussion of the subject in various jurisdictions, and we call attention to the foregoing cases in this court and the following-recent adjudications in other jurisdictions: *Lansing v. Haynes,*95 Mich. 16, 54 N. W. 699; *Wirth v. Wirth,*149 *239Mich. 687, 113 N. W. 306; *Baacke v. Baacke,*50 Neb. 18, 69 N. W. 303; *Estate of Brown,*139 Iowa, 219, 117 N. W. 260; *Donaldson v. Hall,*106 Minn. 502, 119 N. W. 219. What subsequent changes in the condition and circumstances of the testator revoke a will or a part thereof bj implication, within the rule embodied in this statute, has commonly been applied to a change in the testator’s property, in his family, or in the beneficiaries. See note to *Graham v. Burch,*28 Am. St. Rep. 339, 356 (47 Minn. 171). The rule rests on the idea that the changed condition and circumstances of the testator respecting his property, his family, or beneficiaries, imposing different moral and legal duties, affords strong evidence that the testator intended that his will should become revoked as to the provisions affected by such subsequent change in the testator’s condition and circumstances.

Is the change in the condition and circumstances of one who has made a will, brought about by a divorce accompanied by an adjudication making a final division and distribution of his estate, both real and personal, as between him and his wife, in the light of their legal and equitable rights, their character and situation under all the circumstances of the case, of such probative force as to sustain the conclusion that the husband intended that the provision he had theretofore made in his will for his wife’s benefit should be revoked thereby ? The change in the condition and circumstances of a testator incident to a separation of the parties and a division and distribution of the husband’s estate operates to produce a complete destruction of their legal and moral relations and consequent obligations and duties. It is difficult to conceive of a condition and circumstances which are pregnant with as strong an intent to annul the testamentary provision made for the benefit of a testator’s wife and from which he would be led to conclude that the wife’s claim upon his estate and his bounty had been fully discharged.. These changed conditions and circumstances of a testator are of a nature which natu*240rally implies a different intent respecting bis wife as tbe object of bis bounty. Tbe decree divorcing them and awarding, a final division and distribution of bis estate makes tbem strangers to each other, and tbe bestowal on her of such a portion of bis estate as be ought in justice and right under the-conditions and circumstances to bestow on her operates to discharge all bis moral and legal duties toward her. It was-upon such considerations that courts acted in establishing tbe doctrine of implied revocation of wills. Tbe changed condition and circumstances of a testator thus brought about are of a nature and, in effect, of such probative force as to imply that tbe testator intended that tbe testamentary provisions theretofore made for tbe wife should become revoked thereby.

At tbe trial respondent offered evidence to show that after tbe divorce tbe testator entertained a friendly feeling for bis-former wife and did things evincing affection for her, and that be declared to her mother and sister that be bad made provision in bis will for her comfort and needs for tbe remainder of her life. It is contended that this evidence was competent to rebut any presumption of implied revocation of tbe provision made for her in tbe will. In many of the earlier English and American cases tbe right to rebut tbe presumption of such revocation was recognized. In recent times, however, this right has been denied in many cases. An exhaustive and full discussion is found in *Brush v. Wilkins,*4 Johns. Ch. 506; *Marston v. Roe,*8 A. & E. 14, and cases cited above. In *Glascott v. Bragg,*111 Wis. 605, 607, 87 N. W. 854, this court in commenting on this phase of this question stated:

> “Tbe earlier cases seemed to go upon tbe theory that such 'marriage and birth raised a mere presumption of an intent to revoke, but tbe rule held in the later cases was finally confirmed in tbe Privy Council in tbe last case cited *(Israell v. Rodon,*2 Moore P. C. 51), where it was expressly held that ‘marriage and birth of a child do not afford presumptive evidence of intention to revoke, but are in themselves an abso*241lute revocation of a will made previous to tbe marriage but not in contemplation of it.’ ”

Tbis declaration gives approval to the rule that must be deemed to have been applied in the case then under consideration. We have discovered no good and sufficient reason to depart from the rule thus applied in this court, and hence must hold that evidence cannot be received to rebut the presumption of an implied revocation of the provision in a will, or to show that the testator meant his will to stand as written,, unless such evidence amounts to a republication of it. It is not claimed that the evidence offered shows that the testator republished his will after being divorced from his wife. In *Wirth v. Wirth,*149 Mich. 687, 113 N. W. 306, the question was presented to the court in a case like the instant one. The holding of the court is stated in the headnote, as follows:

> “A divorce and settlement of their property rights between husband and wife operates *ipso facto*to revoke his will previously made, and no subsequent act of the testator not' accompanied by the solemnities requisite for the making of a valid will will revive it.”

The evidence offered by the respondent is not proof that the testator revived the provision in the will which had been revoked by the divorce proceeding.

These considerations lead to the conclusion that the circuit court erred in dismissing the proceeding on the petition of *Martin T. Battis.*

*By the Oourt.*— -The judgment appealed from is reversed, and the cause remanded to the circuit court with directions that the court enter judgment affirming the judgment of the county court of Winnebago county.

Upon a motion for a rehearing there was a brief for the respondent by *Baton & Baton,*attorneys, and *Collins & Baton,*of counsel; and for the appellant a brief by *Weed &*Hollister.

The motion was denied October 4, 1910.