Opinion
15093
May 29, 1940.
Before LIDE, J., Pickens, November, 1939. Order of the Court of Common Pleas affirmed.
Proceeding by Otis McJunkin, as executor of the last will and testament of J.F. McJunkin, deceased, of Pickens County, South Carolina, opposed by Janie Moody and others, for the probate of the last will and testament of J. F. McJunkin, deceased, of Pickens County, South Carolina. From an order of the Probate Judge holding that the will had been revoked under and by virtue of statute and that it could not be admitted to probate, Otis McJunkin, as executor of the last will and testament of J.F. McJunkin, deceased, of Pickens County, South Carolina, appealed to the Court of Common Pleas. From an order of the Court of Common Pleas affirming the order of the Probate Judge, Otis McJunkin as executor of the last will and testament of J.F. McJunkin, deceased, of Pickens County, South Carolina, appeals.
The order of Judge Lide follows:
J.F. McJunkin, late of the County of Pickens, made a will dated March 10, 1921, wherein he gave his property, both real and personal, to his wife, Martha McJunkin, for life, and after her death to his son, Otis McJunkin; and wherein he appointed Martha McJunkin executrix, with a provision that at her death Otis McJunkin should be executor. Mrs. McJunkin afterwards died and J.F. McJunkin thereafter married one Ellen Reding. There were no children of this latter marriage. J.F. McJunkin died on August 31, 1935, without having made any other will leaving his widow Ellen Reding McJunkin and several children and grandchildren.
The will above mentioned was probated by the Judge of Probate for Pickens County, and Otis McJunkin qualified as executor thereof. Thereafter the executor was required to have the will proven in solemn form, and all parties in interest were duly brought before the Court of Probate. In the meantime, Ellen Reding McJunkin had made an agreement in writing dated September 5, 1935, wherein and whereby for the consideration therein mentioned she released all claims that she might have against the estate "whether by dower or by inheritance."
The case came on to be heard before Honorable E.A. Lewis, Probate Judge for Pickens County, upon an agreed statement of facts, there being no dispute as to the facts involved in the cause, and the Judge of Probate by his order dated September 7, 1939, held that the will having been revoked under and by virtue of Section 8922, Code 1932, the same could not be admitted to probate in due form of law; and the case comes before me upon appeal from his order, and argument was heard by me thereon in open Court at Pickens on October 6, 1939, and the matter taken under advisement.
Section 8922, Code 1932, reads as follows: "If any person making a will shall afterwards marry, and die, leaving his widow or leaving issue of such marriage, unless the will shall have been made in contemplation of marriage expressed on its face, and shall contain provision for future wife and children, if any, it shall be deemed and taken to be a revocation to all intents and purposes."
The language of this section is clear and the instant case comes directly under its terms. The will made by Mr. McJunkin of course was not made in contemplation of any future marriage, expressed on its face or otherwise, and this being so, the law says "it shall be deemed and taken to be a revocation to all intents and purposes."
It is argued that since this statute was enacted for the benefit of the widow of the second marriage, and since she has made a settlement satisfactory to herself, nobody else can complain; but the language of the statute does not admit of such an exception. Moreover, in the case of In re: Will of Roton, 95 S.C. 118, 78 S.E., 711, 712, our Supreme Court held that the will of Annie L. Roton made while she was a widow was revoked immediately upon her marriage to Roton, "and the will being revoked to `all intents and purposes whatsoever,' then she died as if intestate, and her property is to be divided under the statute of distribution, and the exceptions are overruled." See also 68 C. J., 836, wherein it is stated that "in the absence of any provision in the statute indicating that the will of the testator is revoked pro tanto; revocation by reason of the subsequent marriage of the testator is absolute," and the cases cited in support thereof.
The order of the Probate Court is affirmed.
Messrs. Mann Mann, for appellant, cite: As to revocation of will where testator subsequent to making will had wife and children: Sec. 8922, Code 1932; 28 R.C.L., 187; 95 S.C. 118; 78 S.E., 711; 8 Rich. L., 135.
Mr. W.E. Findley, for respondents, cites: Revocation of will: 95 S.C. 118; 78 S.E., 711.
May 29, 1940. The opinion of the Court was delivered by
This Court being satisfied with the correctness of the concise and excellent order of Honorable L.D. Lide, presiding Judge, from which this appeal is taken, we adopt said order as the opinion of the Court, and direct that it be published herewith.
MR. CHIEF JUSTICE BONHAM and MESSRS. JUSTICES CARTER and FISHBURNE and MR. ACTING ASSOCIATE JUSTICE J. STROM THURMOND concur.