Gartin v. Gartin , 371 Ill. 418 ( 1939 )

I am unable to concur in the foregoing opinion. Gladys Gartin, the wife of the deceased, filed her suit for divorce against the testator, Charles Newton Gartin, June 18, 1936, praying for divorce and alimony. A decree was entered in her favor which provided, among other things, for a divorce and that the plaintiff should receive a lump sum of $1500 in full settlement for alimony and support, and releasing any interest she might have in the personal property of the defendant, other than the amount awarded. Within 30 days after the entry of this decree the testator died. A prior will, which had left his personal property to his then wife, Gladys Gartin, was not destroyed, but was produced by her after his death. While it is true that a divorce does not nullify a will and it is not revoked by law, nevertheless the situation is different, in my opinion, when there has been a property settlement which was intended to fix the property status of the parties. This was accomplished by the decree which was not appealed from and was in favor of the plaintiff here. The doctrine of revocation of wills by implication is in effect in Illinois and has been for a number of years. Moreover, the decree, in my opinion, worked a revocation of the will by implication. It was clearly the intention of the parties by the entry of the decree, which was not objected to, that this property settlement was to be in full of all claims against testator or his estate. In re Gilmour'sEstate, 260 N.Y. Supp. 761; Lansing v. Haynes, 95 Mich. 16.

Mr. JUSTICE JONES, also dissenting.