Opinion
20832.
ARGUED MARCH 15, 1960.
DECIDED APRIL 7, 1960.
Probate of will. Fulton Superior Court. Before Judge Pharr. December 18, 1959.
Norman H. Fudge, Samuel L. Eplan, for plaintiff in error.
Joe W. Gerstein, Edward E. Carter, contra.
The act of the General Assembly (Ga. L. 1952, pp. 196, 197), providing that the total divorce of the testator, when no provision of his will is made in contemplation of such event, shall be a revocation of the will, is applicable in a case where both the execution of the will and the divorce occurred prior to the passage of the act.
ARGUED MARCH 15, 1960 — DECIDED APRIL 7, 1960.
Jake Friedman, the executor named in the will of Iswald David Friedman, offered the same for probate in solemn form. Stella Friedman Cohen filed a caveat to the probate of the will, and alleged that a divorce of the said Iswald David Friedman granted August 29, 1950, effected a revocation of the will, by virtue of the act of the General Assembly of Georgia approved February 15, 1952 (Ga. L. 1952, p. 196), amending Code § 113-408 so as to make a total divorce of a testator subsequent to the execution of a will in which there was no provision for such event a revocation of such will.
The case came on for trial in the ordinary's court, and from the judgment of the ordinary an appeal was taken to Fulton Superior Court. The judge of the latter court entered a judgment on the pleadings, denying the propounder's application to probate the will and declaring the will to be "revoked, void, and of no effect." To this judgment the propounder excepted.
The sole question for decision in this case is whether the provision added to Code § 113-408 by the act of 1952 (Ga. L. 1952, pp. 196, 197), that a total divorce of the testator when no provision of the will is made in contemplation of such event shall be a revocation of the will, is applicable in a case when both the execution of the will and the subsequent divorce occurred prior to the passage of the amendatory act. The text of 57 Am. Jur. 370, § 535, states: "A statute providing that the divorce of the testator subsequent to the execution of the will revokes the will as to the divorced spouse controls a will of a testator who died after its effective date, although the execution of the will and the subsequent divorce both occurred before the effective date." The rule stated there is accepted in most jurisdictions of this country. Dwight v. Dwight, 129 A.L.R. 855, and annotations at p. 873.
Code § 113-401 reads: "A will, having no effect until the death of the testator, is necessarily revocable by him at any time before his death; and even in case of mutual wills with a covenant against revocation, the power of revocation remains."
The language of Code (Ann.) § 113-408 is: "In all cases, the marriage of the testator, total divorce or the birth of a child to him, subsequent to the making of a will in which no provision is made in contemplation of such an event, shall be a revocation of the will."
The latter Code section makes it clear that an act of the testator that revokes his will is "obtaining a total divorce when the will contains no provision in contemplation of such event," and explicitly provides that the Code section, including the quoted clause, applies "to all wills." The words of the statute. "all cases," can be given no other interpretation than that they make the provisions of the Code section added to the same by the act of 1952 applicable to wills executed prior to as well as since the passage of the act. In this connection see construction of the term "all," appearing in 3 Words Phrases 222.
Judgment affirmed. All the Justices concur.