
    Pardee et al. v. Grubiss.
    (Decided June 17, 1929.)
    
      Mr. William J. Corrigan, for plaintiffs in error.
    
      Messrs. White, Hammond, Brewer & Curtiss, for defendant in error.
   Williams, J.

This proceeding in error is brought to review a judgment entered in a will contest, upon a verdict finding that the paper writing in question was not the last will and testament of the testator, Anna Grubiss.

In October, 1926, the deceased, Anna Grubiss, and her husband, Anton Grubiss, executed mutual wills devising property, but without any contract between them so to do. By her will Anna Grubiss bequeathed to her husband, Anton Grubiss, all her personal property, absolutely, and a life estate' in her real estate, and, subject to said life estate, gave her real estate in fee simple to her children, share and share alike. Anton Grubiss by his will made like provisions for his wife and children.

A short time after these wills were executed, trouble arose between the husband and wife, and, as a result thereof, an agreement was entered into for a division of all of their property, subject to the approval of the court in case a decree of divorce should be granted.

In August, 1927, a decree of divorce was entered, and said agreement was approved and embodied in the decree.

Anna Grubiss died November 7, 1927. The two wills, which had been left with the scrivener who prepared them, still remained in his hands where they had been left.

It has been held in Ohio that a mere divorce! decree does not of itself revoke the will of a husband or wife, made in favor of a surviving spouse. Charlton v. Miller, Admr., 27 Ohio St., 298, 22 Am. Rep., 307. It is, however, an open question in Ohio whether such revocation will be effected by a divorce and full settlement of property rights.

Section 10555, General Code, after prescribing certain specific ways of revoking wills, provides that “nothing herein contained shall prevent the revocation implied by law, from subsequent changes in the condition or circumstances of the testator.” Similar statutes exist in many of the states, and are only declarative of the common law. 4 Kent’s Commentaries, 521. The matter, therefore, does not rest wholly on statute.

By the great weight of authority, where a divorce is coupled with a settlement of property rights, there is an implied revocation of a prior will in favor of the divorced spouse, whether there is such statute or not. Wirth v. Wirth, 149 Mich., 687, 113 N. W., 306; Donaldson v. Hall, 106 Minn., 502, 119 N. W., 219, 20 L. R. A. (N. S.), 1073, 130 Am. St. Rep., 621, 16 Ann. Cas., 541; Lansing v. Haynes, 95 Mich., 16, 54 N. W., 699, 35 Am. St. Rep., 545; Battis’ Will, 143 Wis., 234, 126 N. W., 9, 139 Am. St. Rep., 1101; In re Martin’s Estate, 109 Neb., 289, 190 N. W., 872.

Under the authorities cited, the divorce and settlement are held to work a revocation of the will only as to the bequest or devise to the divorced spouse. The judgment of the trial court sets, aside the whole will in the instant case. Anton Grubiss, however, is the only plaintiff in error, and no cross-petition in' error has been filed. It is true that Helen Grubiss Pardee, one of the children, is named as plaintiff in error, and the averments and prayer of the petition in error purport to be those of plaintiffs in error, but no plaintiff in error except Anton Grubiss signs the petition in error, either personally or by attorney. The children take a greater estate as heirs at law than they would as devisees under the will, for as heirs at law they receive a fee in the real estate which is not subject to the life estate of Anton Grubiss. If any of the children were here as plaintiffs in error, or by cross-petition in error, we could not say that prejudice resulted to any of them by the judgment below under the circumstances.

We also call attention to the annotation in 25 A. L. R., at page 49, where the authorities are collected.

The court saw fit to submit the question whether the will was revoked to the jury, and the jury found that it had been revoked and was not the last will and testament of the deceased testator.

There was no reversible error committed by the trial court, and the judgment entered on the verdict does substantial justice between the parties.

The judgment will therefore be affirmed.

Judgment affirmed.

Hughes and Justice, JJ., concur.

Judge Williams, of the Sixth Appellate District, and Judges Hughes and Justice, of the Third Appellate District, sitting by designation in the Eighth Appellate District.  