APPEAL from the Circuit Court of Pike County; the Hon.
WINTHROP B. ANDERSON, Judge, presiding.
MR. CHIEF JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the probate division of the circuit court of the Eighth Judicial Circuit admitting certain instruments to probate as the last will and codicil of Frank G. Stolte, deceased, and issuing letters testamentary thereon. The widow of the decedent appeals directly to this court raising certain constitutional questions.
This case involves an interpretation of the various provisions of section 46 of the Probate Act as amended in 1941, 1957 and 1965, concerning the effect of marriage on a pre-existing will.
Frank G. Stolte, the decedent, executed a will on August 31, 1955, and on November 5, 1956, executed a codicil thereto. The effect of these instruments was to leave his property to a brother, sister, certain nieces and nephews, and they contained no language as to the effect of a subsequent marriage by him. On June 29, 1958, he married Viola Neff. By a letter dated July 14, 1958, Frank Stolte was informed by the attorney who drafted his will and codicil that the law of the State of Illinois at that time stated that unless a will provided to the contrary, his recent marriage revoked the will the attorney had drawn and that Stolte should give attention to the drafting of a new will. Stolte died June 16, 1966, leaving surviving him, his widow, Viola Stolte. On June 30, 1966, petition for probate and letters testamentary were filed in his estate by his nephew and named executor, Harold J. Stolte. On July 20, 1966, objections to the admission of the will to probate were filed by his widow, Viola Stolte, which stated that their marriage revoked his will by operation of law and that he had never republished his will, that Stolte intended to die intestate as he had been advised by his attorney that the marriage revoked the will, and that the admission to probate of the will would be in contravention of section 10 of article I of the constitution of the United States and of section 14 of article II of the constitution of Illinois, i.e., impairment of contracts. Thereafter the probate division of the circuit court admitted the will to probate.
The appellant contends that her marriage to Frank Stolte in 1958 constituted a contract between them and that the applicable laws of the State of Illinois existing at that time became a part of the contract and that if the 1965 amendment to section 46 hereinafter set forth works a revivification of the will and codicil of the decedent, which was revoked by reason of his marriage, then there is an impairment of contract which is constitutionally impermissible. In other words, it is contended that if the 1965 amendment to section 46 of the Probate Act, effective January 1, 1966, (Ill. Rev. Stat. 1965, chap. 3, par. 46,) eliminating the prior provisions that marriage after execution of a will revoked that will is construed to apply retroactively, it violates the constitutional provisions of both the United States and the State of Illinois that no State shall pass any law impairing the obligation of contracts. Aside from the constitutional question, Mrs. Stolte also argues that, properly construed, the 1965 amendment did not revive previously revoked wills.
The executor, however, contends that the 1965 amendment in effect at the death of decedent controls; that under such amendment the will is not revoked; and that the 1965 amendment is valid.
At the time of the execution of the instruments in question, section 46 provided, insofar as applicable here, as follows: "Marriage by the testator shall be deemed a revocation of any existing will executed by the testator prior to the date of the marriage." Ill. Rev. Stat. 1941, chap. 3, par. 197.
At the time of the testator's marriage to Viola Stolte, section 46 provided in part as follows: "Unless the will expressly provides to the contrary: (1) marriage of the testator revokes a will executed by the testator before the date of marriage; * * * No will which is in any manner revoked shall be revived otherwise than by the re-execution thereof, or by an instrument in writing declaring the revival and signed and attested in the manner prescribed in this Article for the signing and attestation of a will." Ill. Rev. Stat. 1957, chap. 3, par. 197.
At the time of the death of decedent in 1966, the 1965 amendment to section 46 was in effect, providing in part as follows:
"No will or any part thereof shall be revoked by any change in the circumstances, condition or marital status of the testator, except that divorce or annulment or the marriage of the testator shall revoke every devise, legacy, or interest or power of appointment given to or nomination to fiduciary office of the testator's former spouse in a will executed before the entry of the decree of divorce or annulment, and the will shall take effect in the same manner as if the former spouse died before the testator.
"A will which is totally revoked in any manner shall not be revived other than by its re-execution, or by an instrument in writing declaring the revival and signed and attested in the manner prescribed by this Article for the signing and attestation of a will. If a will is partially revoked by an instrument which is itself revoked, the revoked part of the will is revived and shall take effect as if there had been no revocation.
"This amendatory Act of 1965 applies to wills of decedents dying after December 31, 1965."
It is clear that if the decedent had died prior to January 1, 1966, his will would have been revoked by his subsequent marriage in the absence of a contrary intention expressed in the will itself. The marriage of the testator operated per se as a revocation. In re Estate of Kent, 4 Ill.2d 81; Sternberg v. St. Louis Union Trust Co., 394 Ill. 452.
The issue therefore is whether the 1965 amendment to the Probate Act was intended to retroactively change the effect of a subsequent marriage, or in the alternative, ...