17. Conclusion of this learned judge.

18. In North Carolina, the birth of a child and other circumstances not sufficient. n. 20. Cases and opinions in different states bearing on the question.

19. The birth of a child may be an implied revocation, but change of circumstances

not.

§ 24. 1. THE marriage of a feme sole is such an entire change in her condition and relations, that it is generally held to work a revocation of her will, executed before that event. And the result was the same even where she survived her husband, and was thus restored to her former condition.2

2. The marriage of a man, for obvious reasons, is not, upon general principles, considered as having the same effect. But marriage, and the birth of issue, is commonly regarded as having such an effect upon his condition and relations in life, that a prior will is thereby revoked. And the rule is not confined to an unmarried testator, but applies to the case of one whose wife subsequently deceases, and he marries again, and has issue of the subsequent marriage. This point was a good deal discussed in the English courts, and was long held in doubt, especially in regard to the effect produced by the marriage and birth of issue upon a devise of real estate.

' Forse & Hembling's Case, 30 and 31 Eliz. in Com. Banc., 4 Co. Rep. 60, 61. "It was [here] adjudged, on great deliberation, that the taking of a husband, and the coverture at the time of her death, was a countermand of the will." Hodsden v. Lloyd, 2 Br. C. C. 534.

* 1 Jarman, Eng. ed. 1861, 114; Cotter v. Layer, 2 P. Wms. (623), (624); Doe d. v. Staple, 2 Term Rep. 685, 696, Kenyon, Ch. J.

This rule is deduced from the Civil Law. Just. Inst. Lib. 2, cap. 13, sec. 5. Qui filium in potestate habet, curare debet, ut eum hæredem instituat, vel exhæredem eum nominatim faciat.

* Christopher v. Christopher, cited in 4 Burr. 2182; s. c. Dick. 445; 1 Jarman, Eng. ed. 1861, 115.

Overbury v. Overbury, 2 Show. 242; Lugg v. Lugg, 2 Salk. 592; 1 Ld. Raym. 441; 12 Mod. 236; Brown v. Thompson, 1 Eq. Cas. Abr. 413, pl. 15; Eyre v. Eyre, 1 P. Wms. 304, in n. a. See also, Parsons v. Lanoe, 1 Vesey, 189, 192; Amb. 557; Gibbons v. Caunt, 4 Vesey, 840, 848, and Am. note.

3. It seems never to have been decided, in the English courts, whether, if the testator have other children of an existing marriage, after the making of his will, and then survive his wife and marries again, but have no child of the after marriage, this will be in law a revocation. The Master of the Rolls, in Gibbons v. Caunt, seemed to suppose the order of the events could make no difference.6

4. It has been held, that marriage and the posthumous birth of a child, will have the effect to revoke the will of the father, since the effect in producing revocation, in such cases, is not dependent upon any supposed change in the mind of the testator, but is a merely legal presumption, altogether independent of any voluntary action, or purpose, on the part of the testator.7 And although it seems once to have been supposed, that the death of the issue, contributing to produce the revocation, during the life of the testator, would defeat the result, it seems now to be held otherwise.8

5. But it seems to be considered, in the English courts, that the subsequent marriage and birth of issue, will not operate as a revocation of the will, where the father, before making his will, or contemporaneously with it, makes express provision, by a separate deed or instrument, for such future issue. It seems to be considered in this, and other analogous cases, that the testator, by making specific provision, by another instrument, for future issue of a contemplated, or possible marriage, puts the case out of the rule of the implied revocation from such events.10 And if the rule is based, as Lord Ellenborough, in Kenebel v. Scrafton, seems to suppose, upon the ground upon

6 1 Jarman, Eng. ed. 1861, 116.

'Lord Kenyon, Ch. J., in Doe d. v. Lancashire, 5 Term Rep. 49, 59; Israel v. Rodon, 2 Moore, P. C. C. 51; Matson v. Magrath, 1 Rob. 680.

1 Jarman, 118, 119; Wright v. Netherwood, 2 Salk. Ev. Ed. 593, in note; Emerson v. Boville, 1 Phillim. 342; cases cited, 1 Phillim. 343.

Kenebel v. Scrafton, 2 East, 530.

10 Lord Mansfield, Ch. J., in Brady v. Cubitt, Doug. 31, 39.

which it is placed by Lord Kenyon, in Doe v. Lancashire,11 there can be no question of the soundness of the distinction.

6. It seems, from the English cases, that the future marriage

" 5 Term Rep. 58, 59. His lordship here treats it as being "a tacit condition annexed to the will itself, when made," that it shall not take effect, if there should be a total change in the situation of the testator's family. And Lord Ellenborough adds, “and a total want of provision for the family so newly circumstanced." 2 East, 542. This case of Kenebel v. Scrafton, seems to have been overlooked by the learned judge, Sir C. Creswell, in the recent case of Re Cadywold, 1 Swab. & Trist. 34; 27 L. J. Prob. 36, from which the editors of the late edition of Jarman infer, that the decision, although very recent, will not be regarded as law. 1 Jarman, 116, in note.

It seems to us, that, in this class of cases, the instrument whereby such issue is provided for after the death of the testator, may justly be regarded as of a testamentary character, and virtually forming a portion of the testamentary act; and that the admission of such proof does not come within the rule excluding parol evidence, but that it is nothing more than proof of all the contemporaneous writings executed by the testator, which it is common to construe together as one transaction. And where the provision is altogether anterior to the execution of the will, it does nevertheless travel forward, and become a part of the testamentary act, by adoption, inasmuch as it is in its very nature a portion of the testator's disposition of his estate, to take effect only after his death.

And even where such provision for future issue is not made to depend upon the event of the father's death, so as to make it of a testamentary character, it would seem important to be considered, by the court, in giving construction to the will, in order to learn the circumstances and condition of the testator's property and family, so as to place themselves in his precise attitude, in order to enable them to view and consider his language from his stand-point, that they may be able the more clearly to comprehend its import. And the same rule equally applies, where the provision for such after-born child is made, not only at a different time from the execution of the will, but by some other person; and even where such provision is made, either by the testator or another, after the execution of the will, it seems equally proper it should be considered in giving a construction to the will, since the will, for most purposes, is regarded as speaking from the death of the testator; and all such provisions, although made after the date of the will, in legal contemplation, exist at the time the will becomes operative, and may therefore properly be considered as showing the condition of the subject-matter. The Earl of Illchester, Ex parte, 7 Vesey, 348.

of the testator, and birth of issue, will only operate a revocation, where the will, either in terms, as by a residuary clause, or in some other mode, disposes of all the testator's estate.12

7. It has been claimed, that the descent of an estate upon after-born issue, shall operate to prevent the implied revocation, but it would seem, that upon principle, it should not have this effect.13

8. There has been a good deal of discussion in the English courts, in regard to the admissibility of parol evidence to rebut this implied revocation, and many dicta of eminent judges will be found, to the effect that such testimony is admissible. But the question came before all the judges, in the Exchequer Chamber,14 in England, and after very elaborate argument, by such eminent counsel, as Lord Campbell, then Attorney-General, and

1 Lord Mansfield, Ch. J., in Brady v. Cubitt, Doug. 39, Lord Ellenborough, Ch. J., in Kenebel v. Scrafton, 2 East. 541, and Tindal, Ch. J., in Marston v. Roe d. Fox, 8 Ad. & Ellis. 57.

13 Marston v. Roe d. 8 Ad. & Ellis, 14, 57. In this case, the court considered, that the issue took only a mere legal estate, so that the question of the effect of a substantial inheritance did not arise. The revocation will not take effect, except in cases where the issue is capable of inheriting the property disposed of by the will, as where the former children, one or more being a son and heir, inherit the estate, being only of the realty. Sheath v. York, 1 Ves. & B. 390. 14 Marston v. Roe d. Fox, 8 Ad. & Ellis. 14. The cases are here very extensively reviewed by Tindal, Ch. J. And while it is fully admitted, that according to the declaration of Lord Mansfield, in Brady v. Cubitt, Doug. 39, that the presumption of revocation from marriage and the birth of issues, like all other presumptions, "may be rebutted by every sort of evidence," it was nevertheless determined, that in the language of Ch. J. Eyre, in Holford v. Otway, 2 H. Bl. 522, "in cases of revocation by operation of law, ... the law pronounces upon the ground of a presumptio juris et de jure, that the party did intend to revoke, and that presumptio juris is so violent that it does not admit of circumstances to be set up in evidence, to repel it." The case of Brady v. Cubitt is here referred to, and it is said to be difficult to understand it, as a "revocation by operation of law." But Tindal, Ch. J., in Marston v. Roe, supra, is very explicit in declaring that Brady v. Cubitt "rests upon other grounds, which are altogether satisfactory," namely, that the will disposed of only part of the estate.

Sir William Follett, it was declared, in a masterly judgment, delivered by Tindal, Ch. J., C. B.:

9. That where an unmarried man, without children by a former marriage, devises all the property he has, at the time of making his will, and leaves no provision for any child of a future marriage, the law annexes to such will the tacit condition that, if he afterwards marries, and has a child born of such marriage, the will shall be revoked. And it was further held, that evidence, not amounting to proof of republication, cannot be received in a court of law to show that the testator meant his will to stand good, nothwithstanding the subsequent marriage and birth of issue:

10. Such revocation is not prevented by a provision in the will, or otherwise, for the future wife only. The children of the marriage must also be provided for. It was here intimated, that such revocation is not prevented, if property, acquired by the testator after making his will, descend upon the child of such marriage, after the testator's death. It is clearly so, where such child takes only the legal estate. This decision seems to have settled the law in the English courts upon all the questions involved.

11. By the recent English statute, wills are held absolutely revoked by the subsequent marriage of the testator, whether made by a man or woman, unless such will be made in execution of certain specified powers; and it is further provided, that no will shall be revoked, by any presumption of intention, on the ground of an alteration of circumstances.

12. The doctrine of the American courts will be found to coincide with the principles above stated. The question was very elaborately reviewed, at an early day, by the most eminent of the American chancellors, and the conclusion declared, upon a thorough examination of the cases, from the days of Cicero 15

"De orat. lib. 1 c. 38. The case here referred to, is the familiar one of the father giving his estate by will to a stranger, upon the mistaken belief that his