山 264 SECTION 4.-SO-CALLED REVOCATION BY CIRCUM STANCES 310 DOE d. WHITE v. BARFORD. (Court of King's Bench, 1815. 4 M. & S. 10.) At the trial of this ejectment, before Heath, J., at the last Cambridgeshire Assizes, the case was this: The plaintiff claimed under the will of one J. Bonteel, who, being seised in fee in 1791, married, and in 1792 made his will, and devised and is pointed out that Eschbach v. Collins, supra, recognized that a testator may revoke by cancellation one or more clauses in his will without invalidating the rest, "if such revocation does not operate to enlarge the estate of any one who takes under the will, or to change the character of the remaining provisions of the instrument." 107 Md. 555, 69 Atl. 379. In Miles' Appeal, supra, the refusal of the lower court to give effect to the cancellation of a specific legacy to the increase of the residue was first supported on the ground that the evidence failed to show that the cancellation was by the testatrix or in her presence as required by the statute (substantially the Statute of Frauds provision), and then the court went on to say: "held that perhaps be too strict a construction of the statute referred to, if we held that under no circumstances could there exist a partial revocation of a will or codicil, effected by burning, canceling, tearing or obliteration; that such rev. ocation must extend to the whole instrument and be operative to revoke the whole, or be without effect. Such a construction has indeed been given to very similar statutory provisions in several other jurisdictions. But probably the weight of authority upon the question is otherwise. The entire subject is most exhaustively and ably treated in a note to the case of Graham v. Burch, 28 Am. St. Rep. 344. But, on the other hand, if we were to declare, following the language of the opinion often cited in Bigelow v. Gillott, 123 Mass 102 [25 Am. Rep. 32], that the authority to revoke an entire will included the lesser power to revoke any portion of it only, and to stop there, as the court in Massachusetts does, it seems to us that an inference might be drawn that would extend entirely too far. For, if such conclusion, looking at the statute in question alone, might be drawn, there is another statute appearing upon the same page of the General Statutes, namely section 538, providing how wills must be executed. If a case arises which is simply and purely one of revocation, section 538 will not apply. But if such revocation involves alteration, it certainly must apply. The difference in meaning be tween the two terms is aptly stated by Mellish, L. J., in Swinton v. Bailey, 45 L. J. Ex. 427, where a testator by his will had devised his real estate to E., 'her heirs and assigns forever.' He subsequently obliterated these words with pen and ink. The judge said (page 429): "The difference between revocation and alteration seems to me to be this: if what is done simply takes away what was given before or a part of what was given before, then it is revocation, but if it gives something in addition, or gives something else, then it is more than Tevocation and cannot be done by mere obliteration.' In Eschbach v. Collins, 61 Md. 478 [48 Am. Rep. 123], is an able discussion of this matter. In that case the effect of erasures was to enlarge the estates of the devisees from life estates to fees. The court held such erasures inoperative under a statute which provided that a will, or any clause thereof, might be revoked by canIcellation. The court said (page 499): "The will has not been revoked; it has been altered. It cannot be supposed that when the Legislature uses the word "revocation," it is to be construed to mean "mutation." When by the obliteration of certain words a different meaning is imparted there is not the premises in question to his niece, from whom the plaintiff derived title. J. B. died leaving his wife enseint, which was unknown to either of them at the time of his death, and afterwards the wife was delivered of a daughter, from whom, as heir at law, the defendants derived title. And the question was, Whether this alteration of circumstances was an implied revocation of the will. The learned judge ruled that it was not, and there was a verdict for the plaintiff. And now Blosset, Serjt., moved for a nonsuit. Lord ELLENBOROUGH, C. J. The argument seems to be, that because the testator, had he known his situation, ought to have revoked his will, therefore the law will impliedly revoke it. But if it is to be understood that every will is made upon a tacit condition that it shall stand revoked whenever the testator by the circumstance of the birth a mere revocation. There is something more than the destruction of that which has been antecedently done. There is a transmutation by which a new clause is created. There is another and a distinct testamentary. disposition which must be authenticated by the observance of the statutory requirements.' The court gives as an illustration of how fully such a transmutation might be made by mere erasures, this example: Suppose the original words were, "To my son William I give nothing, and give all my estate to my son John.' The will with no addition could be made to read. "To my son William I give all my estate. This may seem an extreme illustration, but probably there are few wills made, of any considerable length, in which alterations in meaning, by mere erasure, could not be effected, as objectionable, if not as marked as this. Indeed, without holding that there are none, it seems to us that there are few cases that could arise where the revocation of a portion only of a will, would not operate to alter other portions of it. If an entire clause-meaning by that word one of those distinct and generally numbered subdivisions into which wills are frequently aparted, or an entire unconnected provision making disposition of property-be erased or canceled, and what was thus disposed of becomes intestate, it may be said that there is a revocation, and nothing more. The same thing has been affirmed by some courts where, instead of such intestacy, the property passes into a prescribed residuum. But this appears to us to be more questionable. The residuary devisee or legatee takes by virtue of the will, defeating the heir, and he takes by force of the alteration what he did not take without it. The mischief seems the same. The distinction is more apparent than the difference. Take the very case before us: There were originally two clauses. One disposed of certain stock; the other of the balance of the estate. By revoking the first, there ceased to be any residue, unless the estate in its entirety can be so styled. But look at the object of the change. Was it revocation, or was it alteration? One of the brothers of the testatrix procured a copy of the will from another brother who had it in his possession. He was apparently curious until he knew its contents, and dissatisfied when he learned them. He said to his sister, 'By your will you have given my brother Charles' family twenty-four shares of the New York and New Haven Railroad stock, and you have given my brother David and myself eight.' She said 'I won't have ft so; I will scratch it out.' What was this interested brother's motive? To defeat his nieces of their legacies? Or was it rather to increase his own? What would the old lady 'not have so'? That her nieces should be remembered, or that the families of those brothers should be treated unequally? It seems to us the answer is obvious, and that to all just intents and purposes here was not merely revocation, but substitution; not destruction, but reconstruction; a 'scratching out' indeed, but one equivalent to a writing in; the making of a new testamentary disposition, and in a manner not permitted by law-a law passed in the interest of public policy, the wisdom of which such a case as the present abundantly demonstrates." COST.WILLS-18 of a child becomes morally bound to provide for it, I do not see why the birth of any one of a numerous succession of children would not equally work a revocation. But where are we to stop? Is the rule to vary with every change which constitutes a new situation giving rise to new moral duties on the part of the parent? Marriage, indeed, and the having of children, where both those circumstances have concurred, has been deemed a presumptive revocation, but it has not been shown that either of them singly is sufficient. I remember a case some years ago of a sailor who made his will in favor of a woman with whom he cohabited, and afterwards went to the West Indies and married a woman of considerable substance; and it was held, notwithstanding the hardship of the case, that the will swept away from the widow every shilling of the property; for the birth of a child must necessarily concur in order to constitute an implied revocation. In Doe v. Lancashire, 5 T. R. 49, it was adjudged that marriage and the pregnancy, of the wife with the knowledge of the husband, and the subsequent birth of a posthumous child, came within the rule, the same as if the child had been born during the parent's life. In this case it is desired of us to extend the rule a step farther, but I own I am afraid of so doing. LE BLANC, J. Lord Kenyon considered the rule as founded upon a tacit condition annexed to the will, that if the party should marry and have a child it should not take effect. PER CURIAM. Rule refused.28 28 On "revocation" of wills by marriage and birth of issue, see 9 Prob. Rep. Ann. 423, note; 7 Am. & Eng. Ann. Cas. 786, note. But it should be remembered that statutes have been passed giving to children born after a will and not provided for therein certain inheritance rights, even though in most jurisdictions their birth does not revoke the will.In Iowa the birth of a child alone will revoke the will. McCullum v. McKenzie, 26 Iowa, 510 (1868); Negus v. Negus, 46 Iowa, 487, 26 Am. Rep. 157 (1877). The Iowa rule was adopted before there was a statute on the subject. It is now a statutory matter there. Fry v. Fry, 125 Iowa, 424, 101 N. W. 144 (1904). In Re Del Genovese's Will, 56 Misc. Rep. 418, 107 N. Y. Supp. 1033 (1907), affirmed 120 N. Y. Supp. 1121 (1909), it was held that the will of a man was revoked by his marriage and the subsequent birth of issue, although the wife's first husband had the right to have the marriage annulled A will has been held revoked by a subsequent marriage and birth of a child, although the testator was married to his first wife at the time of making the will. Christopher v. Christopher, Dick. 445 (1771). But see Yerby v. Yerby, 3 Call (Va.) 334 (1802). In Gibbons v. Caunt, 4 Ves. 840, 848 (1799) the Master of the Rolls suggested that a revocation might be held where there was "the birth of children by the first wife after the execution of the will, and after the death of the wife, a subsequent marriage, and no children by that." REVOCATION OF WILLS v. TYLER (Supreme Court of Illinois, 1857. 19 Ill. 151.) SKINNER, J. The case shows, that Stephen H. Tyler, and the complainant intermarried in this state, in 1842, and here lived as husband and wife until his death in 1855; that he died, never having had a child, and leaving a considerable estate, real and personal, in this state, and that the defendants claim his estate under a will executed in the state of Connecticut, where Tyler then lived, in 1834, which will devises his entire estate to his blood relatives. The material question is whether this will, by the change of condition of the deceased, is revoked. It is essential to a valid will that it be the mind and intention of the maker, in relation to the matters to which it relates, at the time of his death. And an instrument executed in legal form, purporting to be a last will and testament, whenever made, is received as the last will and purpose of the maker, until shown to have been revoked in some of the ways known to the law. Our statute contains substantially the same provisions in relation to revocation of wills, as the English statute of 29 Charles II; and the courts of that country have uniformly held, that marriage and the birth of a child, effecting a radical change in the condition, relation and duties of one who before had made a will providing for no such contingency or change of condition, by operation of law and presumptively revoke such will; but that marriage alone will not raise such presumptive revocation. [Citations omitted.] By the law of descents, both in England and in this country, the child may inherit the parent's estate; but there the wife is not heir to the husband, while here she, in case there be no child or descendant of a child of the husband, is such heir and may inherit the one-half of his lands. The reason of the law is the essence and soul of the law; and the reason of the common-law rule existing here by force of our statute, making the wife heir to the husband and the husband heir to the wife, where there is no child or lineal descendant [having gone], the rule should go with it. Where a statute of the mother country or of a sister state is adopted into our law, the rule is that with it is adopted the construction of such statute which, prior to its adoption, uniformly obtained. The wife, ordinarily, where there are no children to provide for, is a far more meritorious object of the husband's bounty than collateral kinsmen, and is presumed to engage more intensely his emotions of interest and affection. It cannot, therefore, be supposed that he would willingly die leaving her disinherited and unprovided for. 29 The statement of facts and the concurring opinion of Breese, J., are omitted. We hold that marriage, under our statute making the wife heir to the husband and the husband heir to the wife, where there is no child or descendant of a child, is, in the absence of facts showing an intention to die testate arising subsequent to the marriage, a revocation of a will of the husband, made prior to the marriage, disposing of his entire estate without making provision in contemplation of the relations arising out of it. Decree reversed and cause remanded.30 SWAN v. HAMMOND. 481 P-4553 4799 19373 (Supreme Judicial Court of Massachusetts, 1884. 138 Mass. 45, 52 Am. Rep. 255.) COLBURN, J. It appears by the record and agreed facts in this case that Susan E. Haven, an unmarried woman, made her will May 20, 1853; that she was then possessed of real and personal estate, all of which by her will she devised and bequeathed to her sister, who was named as executrix: that on October 3, 1861, she married Thomas F. Hammond, and lived with him until her death, on January 18, 1883. Her husband had no knowledge of the existence of the will until after 30 See Colcord v. Conroy, 40 Fla. 97, 23 South. 561 (1898); In re Teopfer's Estate, 12 N. M. 372, 78 Pac. 53, 67 L. R. A. 315 (1904); Brown v. Scherrer, 5 Colo. App. 255, 38 Pac. 427 (1894); Scherrer v. Brown, 21 Colo. 481, 42 Pac. 668 (1895). Compare In re Petridge's Will, 47 Wash. 77, 91 Pac. 634 (1907). But see Hoy v. Hoy, 93 Miss. 732, 48 South. 903 (1908); Hulett v. Carey, 66 Minn. 327, 69 N. W. 31, 34 L. R. A. 384, 61 Am. St. Rep. 419 (1896), In Hoy v. Hoy the state statute made the widow an heir, and the court said: "We think there can be no doubt the decided weight of author ity inclines to the view that a man's will is not revoked by a subsequent marriage without birth of issue. It would protract this opinion' to undue length to review in detail the authorities from Florida, Idaho, Illinois, New Mexico, and Colorado holding to the contrary view. They are criticised in the case of Hulett v. Carey, supra. But one general observation may be made. All of the cases, except Brown v. Scherrer, supra, are decided in states where an unrevoked will would leave the widow without any redress. If it be correct, as most of the American authorities hold, that the common-law rule is based upon the consideration that, if the will is permitted to stand, the heir would not receive any part of the estate, no reason can exist why the rule should be altered in this state, since the widow is well cared for by the right to renounce the will. It is not an accurate statement of the effect of our statute that the wife is placed in the precise attitude of other heirs. She is more than that. She has the right to defeat absolutely any effort of the husband to prevent her participation in the estate. In this aspect, the right of renunciation is akin to that of dower." 93 Miss. 763, 764, 48 South. 907, 908 (1908). On the revocation of wills by marriage alone, see 10 note. In the Matter of the Will of Esther R. Tuller. Prob. Rep. Ann. 230, Ill. 99, 22 Am. Rep. 164 (1875), the rule in Tyler v. Tyler, supra, was so qualified as not to apply to a case where at the time of the marriage the testator had children who under the state statute would inherit to the exclusion of the other party to the marriage. The matter was finally covered by statute making marriage alone a revocation. Under that act marriage revokes the whole will. McAnnulty v. McAnnulty, 120 Ill. 26, 11 N. E. 397, 60 Am. Rep. 552 (1887) Compare In re Larsen, 18 S. D. 335, 100 N. W. 738 (1904). 582 |