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The distinction between a will of real and personal estate, could not well be supported ; and Lord Mansfield declared, that he saw no ground for a distinction. The great point was finally and solemnly settled, in 1771, by the Court of Er chequer, in Christopher v. Christopher, that marriage, and a child, were a revocation of a will of land. The Court of K. B. have since decided, after great deliberation, that marriage, and the birth of a posthumous child. were an implied revocation of a will of real estate.
It is generally agreed, that the implied revocation by a subsequent marriage, and a child, being founded on the presumption of intention, may be rebutted by parol evidence. This was so held by the K. B. in Brady v. Cubitt, but the rule was subsequently questioned, and there has been great difficulty in prescribing the extent of the admission of circumstances which would go to rebut the presumption of a revocation. The Court of K. B., in Kenebel V. Scraften, held, that marriage, and a child, were a revocation of a will, when the wife and children were wholly unprovided for, and there was an entire disposition of the whole estate. But whether the revocation could be rebutted by parol proof of subsequent declarations of the testator, or other extrinsic circumstances, though there was no provision in the will for those near relatives, was a question on which the court gave no opinion. If the wife and children be provided for by a settlement, it is now understood to be the rule, that marriage, and a child, will not revoke a will; and this case forms an exception to the general rule.
a Wellington v. Wellington, 4 Burr. Rep. 2165.
The English law on this subject was reviewed in this state in the case of Brush v. Wilkins ;' and it was adjudged to be the law in New York, founded on those decisions, that subsequent marriage, and a child, were an implied révocation of a will, either of real or personal estate, and that such presumptive revocation might be rebutted by circumstances. But the better opinion is, that under the English law there must be the concurrence of a subsequent marriage, and a subsequent child, to work a revocation of a will; and that the mere subsequent birth of children, unaccompanied by other circumstances, would not amount to a presumed revocation. This was the rule laid down by Sir George Hay in Shepherd v. Shepherd,' and by the Court of K. B. in White v. Barford. Sir John Nicholl, in Johnston v. Johnston,' pressed very far, and very forcibly, the more relaxed doctrine, that it was not an essential gingredient in these implied revocations, that marriage, and
a child, should both occur to create them ; and he held, that a birth of a child, when accompanied with other circumstances, leaving no doubt of the testator's intention, would be sufficient to revoke the will of a married man. The case in which he pressed the rule to this extent, was one that contained so much justice and persuasive equity in favour of the revocation, that it must have been difficult for any court, with just and lively moral perceptions, to resist his conclusion. He placed the doctrine of implioek revocation, not where Lord Kenyon had placed it, on any tacit condition annexed to the will, but on the higher and firmer ground, where Lord Mansfield, and, indeed, the civil law, had placed it--on a presumed alteration of intention, arising from the occurrence of newmorat duties, which, in every age, and in almost every breast, have
u 4 Johns. Ch. Rep. 506.
6 4 Maule & Selw. 10.
swayed the human affections and conduct. It was doubied, however, in the case of Brush v. Wilkins, whether Sir John Nicholl had not carried this point of revocation fur ther than the English law would warrant, and which had never adopted the notion of the inofficiosum testamentum of the civil law. In a subsequent case, Sir John Nicholl seems to have regained the former track of the law, and he lays down the general doctrine, that a will is presumptively revoked by marriage and issue, and that the presumption may be rebutted by unequivocal evidence of an intention that the will should operate, notwithstanding those subsequent events.
In this country we have much statute regulation on the subject. There is no doubt that the testator mar, if he pleases, devise all his estate to strangers, and disinherit his children. This is the English law, and the law in all the states, with the exception of Louisiana. Children are deemed to have sufficient security in the natural affection of parents, that this unlimited power of disposition will not be abused. If, however, the testator has not given the estate to a competent devisee, the heir takes, notwithstanding the testator may have clearly declared his intention to disinherit him. The estate must descend to the heirs, if it be not legally vested elsewhere. This is in conformity to the long established rule, that in devises to take place at some distant time, and no particular estate is expressly created in the mean time, the fee descends to the heir. But by the statute laws of the states of Maine, Vermont, New-Hampshire, Massachusetts, Connecticut, New-York," Pennsylvania, Delaware, Ohio, and Alabama, a posthumous chiled, and in all of those states except De
a Gibbons v. Cross, 2 Addams' Rep. 455.
6 Denn v. Gaskin, Cowp. Rep. 657. Jackson v. Schauber. 1 Cowen's Rep. 187. S. C. 2 Wendell, 1.
i N. Y. Revised Statutes, vol. i. 65. sec. 49.
Glaware, and Alabama, children born after the making of
the will, and in the lifetime of the father, will inherit in like manner as if he had died intestate, unless some provision be made for them in the will, or otherwise, or they be particularly noticed in the will. The statute law in Maine, New-Hampshire, Massachusetts, and Rhode Island, goes further, and applies the same relief to all children, and their legal representatives, who have no provision made for them by will, and who have not had their advancement in their parent's life. In South Carolina, the interference with the will applies to posthumous children ; and it is likewise the law, that marriage, and a child, work a revocation of the will. In Virginia, and Kentucky, a child born after the will, if the testator had no children before, is a revocation, unless such child dies unmarried, or an infant. If he had children before, after-born children, unprovided for, work a revocation pro tanto. In the states of Maine, Massachusety, Connecticut, New-York, Maryland, and, probably, in other states, if the devisee dies in the lifetime of the testator, his lineal descendants are entitled to his share. Al'his is confined, in Connecticut, to a child, or grandchild; in Massachusetts and Maine, to them, or other relations; and, in New York, to children, or other descendants. The rule in Maryland goes further, and, by statute, no devise or bequest fails by reason of the death of the devisee, or legatee, before the testator ; and it takes effect in like manner as if they had survived the testator.b
a It would appear, by the reading of the statute of Connecticut, of 1801, that an after-born child, and no provision for it, revokes the whole will. In Pennsylvania and Delaware, marriage, or an after child not provided for, is a revocation pro tanto only. In Ohio, the birth of a child avoids the will, if it was made when the testator had no child.
6 Laws of the several States, in Mr. Anthon's collection.' Griffith's Law Register, h. t. 6 Harr. & Johns, 54. N. Y. Revised Statutes, Vol. ij. 66. sec. 52. It is not improbable that I may be involved in some
By the New-York Revised Statutes, if the will de poses of the whole estate, and the testator afterwards marries, and has issue born in his lifetime, or after his death, and the wife or issue be living at his death, the will is deemed to be revoked, unless the issue be provided for by the will, or by a settlement, or unless the will shows an intention not to make any provision. No other evidence to rebut the presumption of such revocation is to be received This provision is a declaration of the law of New York as declared in Brush v. Wilkins, with the additional provision of prescribing the exact extent of the proof which is to rebut the presumption of a revocation, and thereby relieving the courts from all difficulty on that embarrassing point.
The will of a feme sole is revoked by her marriage. This is an old and settled rule of law; and the reason of it is, that the marriage destroys the ambulatory nature of the will, and leaves it no longer subject to the wife's control. It is against the nature of a will, to be absolute during the testator's life, and therefore it is revoked in judg ment of law by the marriage. If the wife survives her husband, the will, according to the opinion of Serjeant Manwood,' revives and takes effect equally as if she had continued a feme sole. But the strong language of the judges in the modern cases, in which they declare that the
little inaccuracies in respect to the variations in the laws of the several states. The regulations cross each other so constantly, that it is difficult to be perfectly exact, without giving a very minute detail of the laws of each state, and which the limits of the present work would not permit.
a Vol. ii, 64. sec. 43.
6 The statute must mean here to refer equally to the posthumous issue.
c Forse and Hemblig's case, 4 Co. 60. b. Supra, vol. č. 143. S. P. d Plovod. Rep. 343. a..