
    IMPLIED REVOCATION AS TO AFTER.WARD ACQUIRED PROPERTY DEVISED BY WILL.
    [Circuit Court of Jackson County.]
    M. T. Ridenour v. Mary E. Callahan et al.
    Decided, June 7, 1906,
    
      Wills—When a Will Speaks—Implied Revocation—Revocation Pro • Tanto—The Wills Act—Sections 5956 and 5957—Pleading■—Par-tition.
    
    1. The doctrine of implied revocation that existed at common law prior to the English Wills Act of 1837, does not obtain in Ohio as to after-acquired property devised by will; or to devised specific property conveyed by a testator after the execution of the will and reconveyed to him before his death.
    2. Where It made a will in 1900, devising specific real estate, and thereafter conveyed such real estate to another, and later and before the death of R the same was reconveyed to the testatrix, said devise passes under the original will and is not revoked.
    3. Under the facts stated in the second proposition of the syllabus, said will is construed, as to such devise, to speak from the death of the testatrix.
    Jones, J. (orally); Walters, J., concurs; Cherrington, J., dissents.
    This was an action in partition begun in the court of common pleas of this county.
    Several of the defendants filed demurrers, alleging that the petition did not state a cause of action; the court of common pleas sustained the demurrers, and proceedings in error have been instituted in this court to reverse the judgment of the court of common pleas.
    The petition in the case is filed by one of the children of Eliza B. Ridenour asking for partition. He has made parties defendant in the case, the heirs of Eliza B. Ridenour, together with the guardian of one of the imbecile children, and the administrator with the will aimexpd of Rlifii] B, Ridenour, jyho js niño n ¡¡Ml of Ho tenate
    
      The plaintiff sets forth the various interests of these heirs or children, of whom there were five, and claims that he has a one-fifth interest as tenant in common in the two tracts of land described in the petition. The petition alleges that on November 20, 1900, Eliza B. Ridenour, the testatrix, being then seized of the real estate described, executed a will, in which she provided that her imbecile child, Charles E., was to have a home and care, etc., and that her daughter, Mary, was to furnish this home, care and provision for her imbecile brother, and for that she was to have the property described in the petition for life. If Charles survived Mary, the plaintiff in error here, who is one of the testatrix’ children, was to look after Charles’ welfare.
    Upon the death of both Charles and Mary, all the balance of the property remaining unconsumed was devised to her other three children, M. T. Ridenour, James Ridenour and W. D. Ridenour.
    On June 3, 1904, the testatrix executed a deed to Mary E. Callahan, her daughter, for the first tract named in the petition, which I will call the “Bridge street” property. This deed was executed for the nominal consideration of one dollar, and the further consideration of the care of herself and Charles for their respective lives, and to pay their funeral expenses, taxes, and certain other debts that she mentioned in the deed.
    And on the same day she also executed a deed to one of her sons, James S. Ridenour, for the second tract, or the farm property, for the nominal consideration of one dollar, and love and affection, and to make him even with the balance of the children; she, however, reserving to herself for life the profits out of this farm property after the payment of repairs and taxes thereon.
    The petition further alleges that on June 25, 1904, for the purpose of having all of this property equally divided among them, that all the children except the imbecile, entered into a written agreement that these two tracts of property should be reconveyed to the testatrix, and that the expenses for the care of the mother, the testatrix, and of Charles, the imbecile, and William D., should be borne equally by all of the five children.
    
      The petition alleges that while the testatrix was a party to the written agreement she did not sign it.
    The property thereupon was reconveyed by the two children, Mary and James S., and the petition alleges the testatrix accepted this conveyance in pursuance of the agreement. On September 27, 1904, the testatrix died.
    The contention in this ease, which counsel upon both sides ( have presented, is this: After a testator has devised specific property to another, and between the date of the execution of the will and the time of the testator’s death has conveyed the t specific property, and later has had the property reconveyed to i him, whether the aforesaid devise will pass the property under i the original will, or whether by reason of that conveyance by [ the testator there has been an implied revocation of the will as to that property. '
    It will be observed that the will was executed in November, 1900. She made the deeds to the property in 1904, and before her death on September 27, 1904, the property that she so deeded after the execution of her will, was reconveyed to the testatrix.
    Under the old English law, at least prior to July 3, 1837, when's the Wills Statute was passed, there was no question but that if, after the execution of a will by a testator, he devised any of that property, a conveyance would abrogate the will pro tanto so far as that property was concerned, and a reconveyance would not'i re-invest him with the property so he could devise it by will ^ unless he would change the will.
    The question is whether that applies now—whether the doc-t trine of implied revocation, as it existed prior to 1837, exists! at this date in Ohio.
    Now, in Ohio, a will can not be revoked orally. We have a statute which provides for the manner in which a will can be revoked, and it can only be revoked in the manner provided by Section 5953, and that is by the testator tearing, canceling, obliterating or destroying the same, or by a new will or codicil executed in writing under the same solemnities as the old will.
    So under that section, that is the only method of revoking a will in this state, except it may still be revoked under the doctrine of implied revocation.
    
      The latter part of Section 5953 provides, in reference to the method in which wills may be revoked, as follows: “But nothing herein contained shall prevent the revocation implied by law, from subsequent changes in the condition or circumstances of the testator. ’ ’
    So that we still have in Ohio the doctrine of implied revocation.
    Then the question is, has this will been revoked pro tanto as to this property by a conveyance thereof by the testatrix during her lifetime?
    There is no question but that at the time the case of Brush v. Brush was decided in the 11 0., page 287, this would have been an implied revocation, and since our present will statutes in Ohio were not in force m 1842, when that case was decided, that the testatrix would not be re-invested with the property so as to make this property pass under the will.
    The position of plaintiff in error perhaps is better stated in Page on Wills, Section 278, and counsel can see why, in the early years of the English laws, the doctrine of implied-revocation applied with so much strictness as it did then. But prior to 1837, as I have stated, the will took effect at the date of its execution, and if a testator during that time devised property, no after-acquired property, whether such was the same property or other property, would pass by that will. It was only property that he had possession of at the date of the execution of the will and of which he had continuous seizin at the time of his- death that passed under the will at that period.
    “This rule at common law rested upon the principle that testator by a devise of his property could dispose only of the real property then owned by him; while after-acquired property could not be devised, but passed to the heirs. As we have seen, this was the result of the common law theories of seizin. Hence, if testator after making his will altered his estate in such a way as to divest himself of the seizin, even for a short time, his new estate in the property was looked upon as an afteracquirecL estate, and could not pass by will. To make a valid devise, testator had to be seized at his death of the same estate that-lie was seized of at the date of the will,” F^tge on Wills, ^edition 8TB, ‘ ‘ ' '.......■
    
      Now then, the doctrine of implied revocation of the will did obtain' on that day. What does it mean ? Some of the authorities call it “implied revocation”; others “presumed revocation.” That is, there is merely a‘presumed revocation, because if after the time the will took effect, the property were conveyed, it would leave nothing for the will to operate upon. It was not a revocation arising from any expressed intention of the testator, but was a revocation arising under the legal maxim, “Ex necessitate rei.”
    
    But how has it been since the enactment of the Victorian Statute on July 3, 1837, which are substantially in force in nearly all the American states?
    Section 23 of the English Wills act referred to, similar in effect to Section 5956, reads as follows:
    “And be it further enacted, That no eenvevance or other act made or done subsequently to the execution of a will of or relating to any real or personal estate therein comprised, except an, act by which such will'shall be revoked as aforesaid, shall prevent the operation of the will with respect to such estate or interest in such real or personal estate as the testator shall have power to dispose of it by will at the time of his death.”
    
    Then it changes the old common law as to when the will shall speak in the next Section 24:
    “Be it further enacted, That every will shall be construed,] with reference to the real estate comprised in it, to speak and] take effect as if it had been executed immediately before the\ death of the testator, unless a contrary intention shall appear by the will.”
    Now 'that is the doctrine in Ohio, and in fact found substantially in Section 5969 of the Revised Statutes, but not in the exact language of Section 24 of the Victorian Statutes.
    Section 5969 provides that “property acquired by the tes-1! tator after the making of his will, shall pass thereby, in like manner, as if held or possessed at the time of making the will, if such shall clearly and manifestly appear by the will to have been the intention of the testator.”
    This section means nothing more or less than the will must be construed to speak from the death of the testator, for the statute here passes property acquired after the will’s execution,
    
      Now, in determining whether or not the old doctrine (the common law doctrine of implied revocation of the will) applies to the facts in this case, we must take into consideration these two sections of the statutes of Ohio. The main question is: What is the law of Ohio as to when a will speaks? But before I come to that', I want to refer to the reason why the old rule was changed, and I will read very briefly from various authorities.
    Page on Wills, 279, refers to the old doctrine:
    “The subject of revocation by alteration of estate is practically obsolete at modern law. Nearly all the jurisdictions in which common law is in force have passed statutes to the effect that no alteration in the estate of testator in property devised or bequeathed shall effect a revocation of his will as to such, unless he is wholly divested of his interest therein, or unless in the instrument by which- such alteration is made he declares his intention that it shall operate as a revocation of such previous devise.”
    2 Woerner on the American Law of Administration, Section 886, page 966 (bottom paging) :
    “Under a technical rule of the common law, no real estate could pass by a will of which the testator was not the owner at the time of its execution. This rule has been severely criticised, as calculated to - mislead and defeat the intention of testators, and is now 'abolished by statute in England, as well as in most, if not all, of the states of the Union, providing, substantially, that wills shall be construed, in respect of both real and personal estate, as if executed immediately before the testator’s death, or directing real estate acquired by the testator after the date of the will to pass thereby, if such appear to have been intended.”
    And the authorities cited embrace Ohio as one of the American states which 'has provided for such a statute, and that section is 5969.
    Beach on Wills perhaps has a better statement of this doctoáne than any of the authorities cited.
    Section 67 of Beach on Wills (the Pony Edition) is asf^H lows: * •
    
    “Under the old law it was essential to the validity of a devis^ of freehold lands that the testator should be seized thereof at' the making of the will, and that he should continue so seized without interruption until- his decease. If, therefore, a testator, subsequently to his will, by deed aliened lands which he had disposed of by such will, and afterwards acquired a new freehold estate in the same lands, such newly acquired estate did not pass by the devise, which was necessarily void. And the devise of a freehold lease, which was renewed by the testator after making his will, could not take effect under it. ’ ’
    Why? Because a devise made after the execution of the will must have reference to property only that he was seized of at the date of his will, and if he acquired property under this rule after that, the devise would not pass, for the reason he did not have it at the date of the execution. The same authority goes on to say:
    “But the revocation of devises by an alteration of estate, is placed on an entirely new footing by the statute of I Victoria, eh. 26, which provides:
    “ ‘No will shall be revoked by any presumption of an intention on the ground of an alteration in circumstances; and that no conveyance of real or personal property previously devised, shall a'ct as a revocation as to the estate or interest therein, which the testator may have the right to dispose of by will at the time of his death. ’ In several of the united American states, similar statutes are to be found, providing in substance that no conveyance or alteration of estate which does not wholly divest the testator of all interest in'the property mentioned in the will, shall prevent the operation of the instrument with respect to that which the testator may have power to dispose of at the time of his death. Such provisions are contained in the statutes of the Virginias, Kentucky, Ohio, ’ ’ etc.
    So, also, is to the same effect, 1 Jarman on Wills, Sections 147-162.
    We can very easily see how and why these various textbooks seem to differ, for the reason that under the old law only eh real estate passed as the,testator had when he executed e will.
    Now under our Wills act, whatever real estate the testator as, whether at the execution of his will or at his death, whether such be after-acquired property, or, as in this case, property he had conveyed, and later became re-invested with as after-acquired property, since the will speaks from the date of the testator’s death, such property passes thereunder, and that is the reason why the old rule has been modified.
    In the 30th Volume of the American & English Encyclopedia of Law (2d Edition), page 654, that reason is set forth:
    “It was formerly essential to the validity of a devise of freehold lands that the testator should be seized thereof at the making of the will, and that he should continue so seized without interruption until his decease. If, therefore, the testator aliened lands which he had previously devised, but afterwards acquired a new freehold estate in the lands, such newly acquired estate did not pass by the devise, which was necessarily void. ’ ’
    The text plants the proposition upon the fact that it was necessarily so because he had to be invested with the title at the time of the will. Then the author says:
    “By virtue'of statutes, however, which now exist generally and which provide in substance that a will shall be construed to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appears therein, a conveyance by the testator of land which has been devised by him does not revoke such devise if subsequently, and before his death, the title to the land conveyed revests in him.”
    
    It cites a number of authorities, and one of them is the case of Woolery v. Woolery, 48 Ind., 523, where Jarman on Wills (star paging), 147, states the case as follows:
    “It was held in Indiana where real estate was owned by the testator at the time of making the will, and was some years later, conveyed by the testator, and one year after such conveyance by him, reconveyed to the testator, that the will was not therefore revoked by implication, but that its operation was restored as to this real estate.”
    Beach, also, on pages 152 and 155, distinguishes and applies the doctrine to the laws as they now exist and as they existed prior to the enactment of the Victorian Statute:
    ' “The corresponding English statute regulating this matter enacts that every will ‘shall be construed with reference to thereat and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.’ The effect of this statute and of those of the American statutes which follows its phraseology, is to raise the presumption of an intention to pass the after-acquired estate, unless the contrary be shown, throwing the burden of proving the contrary upon the heirs.”
    And, on page 155, the author says:
    “At common law, a specific bequest was supposed to refer to the property answering the description at the date of the will. Hence, subsequent changes in property so given operated as an ademption thereof. But under the modern statutes by which wills are construed as to the real and personal estate, to speak from the death of the testator, a bequest of a leasehold is not adeemed by the expiration and renewal of the lease; and a subsequently acquired fee in the same property, although described as held for a term of years, passes under the bequest. ’ ’
    The reason for the rule is given as I have stated—that it depends entirely upon when the will speaks.
    The 13th Americáh & English Encyclopedia of Law (First Edition), pages 101 and 102 and the note thereunder, I think, treats briefly and well the question I am now discussing, and much better than the second edition does.
    The text is as follows:
    “Where a testator in his lifetime makes a conveyance of land specifically devised, the devise is thereby adeemed or revoked. If the whole estate is conveyed, the ademption is complete; if only part, the devise may still take effect on the residue. At common law, a devise so adeemed was not revived by reconveyance; whether statutes providing that the will shall speak from the testator’s death would in themselves have that effect is, at least, doubtful; but under such act taken in connection with acts providing that no alteration of estate shall work a revocation, the lands reeonveyed pass under the original description. ’ ’
    And here it cites in the note, among others, Brown v. Brown, 16 Barb. (N. Y.), 569, where it held that lands reeonveyed were held to pass under the original description.
    We have not before us the New York or Indiana wills statutes, but I assume they are substantially very similar to the Victorian Statute as those of Ohio are.
    
      Reading the statutes of Ohio in that connection here (and when these statutes—5956 and 5957—speak of alteration or inconsistencies they refer to such alteration or inconsistencies in an instrument or conveyances that may exist at the death of the testator, not as at common law as they may exist at the time of the execution of the will; and “at the death of the testator” might be read into these statutes for the purpose of this construction), we have the application of the foregoing text.
    Section 5956 provides that:
    “A conveyance, settlement, deed or other act of the testator, by which his estate or interest in property previously devised or bequeathed by him, shall be altered, but not wholly divested, shall not be deemed a revocation of the devise or bequest of such property, but-such devise or bequest shall pass to the devisee or legatee, the actual estate or interest of the testator, which would otherwise descend to his heirs. ’ ’
    “Shall pass”—when? At the time of the death of the testator.
    In other words, under this statute, all that' the jurist must necessarily do is to take the conveyance that is outstanding and say whether at that time (the testator’s death) there is an alteration of the estate.
    And the next section provides for revocation in certain contingencies when the instrument shall be inconsistent with the devise in the will.
    When inconsistent? At some time before the will takes effect? That would be reductio ad abstirdum.
    
    Reading this section:
    “But if the provisions of the instrument by which such alteration is made, are wholly inconsistent with the terms and nature of such previous devise or bequest, such instrument shall operate as a revocation thereof, unless such provisions depend on a condition or contingency, and such condition be not performed, or such contingency do not happen.”
    There is no instrument in this case by which it can be compared. It has lost its vitality. The estate provided therein has gone back to the testatrix, and this statute must be contrued so that this inconsistency be shown at the time the will speaks.
    
      Section 5969 provides that after-acquired estate shall pass l under the will as if held at the time of its execution.
    In other words, it provides that the will speaks from the date of the testator’s death.
    These will statutes of Ohio entirely change the law of implied revocation of devises as it existed prior to 1837.
    Think of it! If the law prior to 1837 should obtain to-day and the testator should make a will, and between that time and his death he should deed a portion of his property to some person for a period of forty-nine years, it would be impossible for the testator to obtain a reconveyance of that property to pass it under the description of the will.
    He would have to make a new will to govern: one would have to make a new will every time he acquired property that he had previously owned and devised.
    That isn’t the intention, we think, of these will statutes as they have existed from 1837 up to the present time.
    It seems to us that there can be no doubt that the revocation that is complained of by counsel for the plaintiff in error does not apply to a case of this kind.
    . A quaere might' arise whether, on the pleadings, the judgment should not be affirmed for the reason that the plaintiff’s amended petition does not definitely state that the testatrix was seized of the real estate in question when the luiib ivas executed.
    
    As the main question is a new one and of considerable im- jj portanee in this state, and was also argued very fully by counsel, ^ we have deemed it best to decide the case on the lines stated. \
    
    The result of the judgment will be that the judgment will have to be affirmed and the cause remanded.
    Exceptions will be noted in behalf of plaintiff in error.
    
      J. 0. Yates, for plaintiff in error.
    
      E. C. Pow.ell, for Mary Callahan and Mary Callahan, guardian.
    
      8. F. White and E. L. Grimes, for J. S. Ridenour, administrator with the will annexed of Eliza B. Ridenour, deceased.
    
      John Harper, for Frank Ridenour.
     