will itself coupled with the facts shews the mistaken apprehension on which the devise has been grounded, the case falls within the principle of Campbell v. French, already cited'. And to a case so circumstanced perhaps the principle on which Lord Kenyon seemed in great part to ground his opinion in Doe v. Lancashire, may seem to apply; for there appears to be a sort of tacit condition annexed to, or accompanying, in legal consideration, such a devise, that if the facts were otherwise than apprehended by the testator, the devise should not stand.

PART XVII.

Accident and Surprise.

THERE may be something also in the circumstance of a testator's being prevented by surprise, or even

i 3 Vez. Jun. 321.

Wright, 2 Bos. et Pull. 26. Harwood v. Wallis, 2 Vez, Jun, 195. Young v. Young, 1 Dick. 295, 303. 5 Vez. Jun. 596. and Sir J. Morshead v. Frederick, in Mr. Sugden's Appendix to his Law of Vend. and Purch. No. 7.

by a sudden accident, when coupled with other particulars in his situation, indicating the probability of an intended revocation, which may be allowed to operate a revocation of his will. Wells v. Wilson*, determined at the Cockpit in 1756, on appeal from the West Indies, lends support to this supposition; which case was as follows:

A. wrote his will on one side of a sheet of paper, but neither signed or sealed it. On the other side he wrote another will, and signed and sealed it. They appeared to be both written at the same time, though it seemed impossible to determine which had been written first. There was a trifling difference. He had provided for the infant then in ventre sa mere, and who afterwards was born in his lifetime. Sometime after this A. died, leaving his wife ensient with a child which was afterwards born. The question was, whether the will was thereby revoked as the posthumous child was entirely unprovided for. Evidence was produced to shew that in his most serious moments he had declared that he had made no will, but was resolved to do so on the first opportunity, mentioning that the situation of his family required such precaution.

While he was in this state of mind, he had the misfortune to receive his death wound by a fall from his horse, and in the short interval between the fall

• Cited by Sir Geo. Hay, in Shepherd v. Shepherd.

and his death, his thoughts were employed on the making of his will; and accordingly he sent for a professional person, but losing his senses and dying soon after, the paper was all that was found. The great doubt with the court was, whether the will was prior or posterior to the paper written on the back of it. And in order to come at this, they adjourned the case for six months, that they might enquire further as to that fact. But this enquiry was fruitless; and therefore the Court directed that it should stand for argument on its particular circumstances. And at length, the Lords of the Council, upon a view of the whole matter, and the co-operating argument of a child's being then unprovided for, set aside the will. The decision did not turn upon the naked fact of the birth of a child unprovided for, but upon that and the frequent declarations of the testator; the state of his mind; and his repeatedly declared intention in the interval between the fall and his death."

This is the manner in which the judgment in that case is accounted for by the learned Judge of the Prerogative Court, in Shepherd v. Shepherd: he seems, however, to have omitted that circumstance in the case, without adverting to which, the propriety of admitting the evidence of declared intention, seems palpably open to the objections arising. from the statute of frauds, viz. the suddenness of the accident, which was a surprise upon those intentions so natural under the circumstances of the testator's

family to have existed in his mind, and afforded a foundation for the reception of that testimony, which, without such a foundation, has always been rejected by the better opinions. A case of this sort is mentioned in the first volume of Roll's Abridgment. A. made his will, according to the statute and afterwards revoked it by parol, and then declared his intention to alter it when he came to D., but before he could come to D. was murdered; the will was held to be revoked.

PART XVIII.

Effect of a woman's marriage upon her will.

a woman after

ALTHOUGH marriage, and the birth of a child The marriage of must both happen to revoke the will of a man, yet making her will it has been settled that a woman's marriage alone is alone enough will be a revocation or rather countermand of her will, if she dies in her husband's life-time (1). This was so determined in the case of Forse v.

to revokeit,without the birth of

a child.

614.

(1) If a feme sole surrenders to the use of her will, and marries ; her marriage is a revocation, or at least a suspension of the surrender. Ambler. 627.

Hembling, in Coke's Reports. It was objected that although after the marriage, the wife could not revoke her will, (quod fuit concessum per totam Curiam), yet that was no reason why the mar riage should be a countermand: for, it was said, that if a man of sound memory made his will and afterwards became non compos mentis, he could not countermand his will, and yet such his disability was no countermand.

But the court were unanimous that the marriage and coverture at the time of the death, was a countermand, and that for several reasons. 1st. The making of a will is but the inception of it, and it does not take effect till the death of the devisor; but it would be against the nature of a will to be so absolute that he who makes it, being of good and perfect memory, cannot countermand it; and therefore the taking of a husband, shall amount to a countermand at law.

But when a man of sound memory makes his will, and afterwards by the visitation of God, becomes of unsound memory, (as every man for the most part before his death is), it would be hard, indeed, if this act of God should be a revocation. 2dly. It would be mischievous to women, if their wills, after their marriage, were to stand irrevocable. And this they must be, unless the marriage were a revocation, for the law will neither allow a will to be made or revoked 1 And. 181, Godsb. 109.

a 4 Rep. 61. a.