Luther v. Luther , 211 Ala. 352 ( 1924 )

On Rehearing. We did not deem it necessary to discuss the general authorities on the doctrine of dependent relative revocation of wills, for the reason that the statutes adverted to in the opinion are the rule obtaining in this jurisdiction. Where the doctrine is given application, it is of a presumed intention (McIntyre v. McIntyre, 120 Ga. 67, 47 S.E. 501, 102 Am. St. Rep. 71, 1 Ann. Cas. 606, the theory being that the original disposition would not have been revoked unless the new will was given effect. (38 L.R.A. [N. S.] 802; 28 R. C. L. p. 182, § 141). No such presumption can be indulged against the alleged testator in the face of his positive statement under oath and before the attesting witnesses that the former will had "been lost, destroyed or stolen," and "that said will is void, as anew will has been made since that time." (Italics ours.) The revocation was accomplished as provided by statute (Code 1907, § 6174), by the "other writing subscribed by the testator," which was sought to be set up in the last pleading No. 7, to which demurrer was sustained. The cause of the revocation of the former will was that it had "been lost, destroyed or stolen"; its revocation was accomplished in due and statutory form by affiant's (G. C. Luther) writing stating that "said will is void." This revocation was not a dependent relative revocation, and was not taken from under the statute by the further statement of one of the reasons for the act, "as a new will has been made since that time." The intentional and formal compliance with the terms of the statute for revocation was sufficient. The fact that the subsequent will was not found (or, as for that, not made or executed as required by law) and produced after the death of the testator (an act of a third person) did not authorize a disregard of his expressed intention of revocation and of his statutory compliance as to such revocation.

In the absence of the recited second will, we cannot know whether in fact the subsequent will was executed, or, if so, whether it was duly executed. To hold that the statute was not complied with in the instant case, without the production of the subsequent will, would put it in the power of a third person to defeat the formal declared intent of revocation of the "lost, destroyed or stolen will." It is sufficient that the statutory requirements of revocation were accomplished by Mr. Luther during life, whatever may have been his reasons therefor. And after his death the doctrine of dependent relative revocation cannot set up for him a will he had revoked pursuant to the statute, and defeat his revocation because of the failure of third persons to produce the subsequent will in question.

The application is overruled.

All the Justices concur.