The Chancellor.
(1.) The first question arising upon this case is, whetherthe will of the 6th of March, 1807, was revoked by operation of law, by reason of the subsequent marriage of the testator and birth of a son.
I am not apprized that the question has ever arisen and been decided in the Courts of this state; we are, then, to consider it as a case to be governed by the English lav/, as set-, tied at the time of our revolution, or by those general prin-, [510] ciples of reason and justice, which have a uniform and universal application.
It had became a settled rule of law and equity, as early as the year 1775, that implied revocations of wills were not within the statute of frauds, and that marriage and a child, taken together, (though neither of them taken separately was sufficient,) did amount to an implied revocation, and that such presumptive revocations might be rebutted and controlled by circumstances. Without going minutely into all the cases, a cursory view of them will be sufficient to establish this position, and it can be shown to have received continued and unceasing sanction down to this day.
Sir John Nicholl says, that this rule was no part of the ancient jurisprudence of England, or of any other country, and that Overbury v. Overbury, (2 Show. 253) was the first case in which the rule was applied. That was a case before the delegates, upon appeal, in the 34th of Charles II. and it was adjudged that the subsequent birth of a child, was a revocation of a will of personal property; and this decision was expressly founded upon the doctrine of the civilians.
The civil law, in several instances, recognized these implied revocations.
The case stated by Cicero, (de Orat. lib. 1. c. 38.1 is often alluded to; in which a father, on the report of his son’s death, appointed by will another person to be his heir, and his son returning, the case was . brought before the Centumviri, and the son was reinstated in the inheritance. There is like case mentioned in the Pandects, (Dig. 28. 5. 92.) in which the Prince set aside a will made upon a false rumour of the death of the person, whom the testator had previously appointed his heir. The decree was made on the petition of the person whom the testator had supposed to be dead; and it was made decidedly on the ground of giving effect to the real intention of the testator — tamen ex volúntate testan,tis putavit Imperator ei subveniendum. So, also, the subse[511] quent birth of a child unnoticed in the will, annulled it; hwtni ; and this is the rule in the nerally adopted the civil law. (Cic. de Orat. 1. 57. 2. 13. 1. Ferriere’s Traduc. h. t. Huber, lib. 2. tit. 13. s. 5. de liberis eocheredendis, et tit. 17. s. 1. Quibus modis testamenta infirman tur.) The next English case was that of Eugg v. Eugg, (1 Ed. Raym, 441. Salk. 592.) decided by the delegates, of whom Ch. J. Treby was one, in which it was ruled that marriage and a child amounted to a revocation of a will of personal estate, founded on the presumption of a change in the testator’s mind, from the alteration of his domestic circumstances and relations. It appears from the able and elaborate opinion of Dr. Hay, in Shepherd v. Shepherd, (5 Term Rep. 51. note.) that it had continued down to the year 1770, to be the uncontradicted and settled law of Doctors’ Commons, that subsequent marriage and a child amounted to a revocation of a will. the doctrine was, Testamenta
In Brown v. Thompson, (1 Eq. Ca. Abr. 413. pl. 15. 1 P. Wms. 304.note by Cox,) the rule was adopted in the Court of Chancery, by the Master of the Rolls, Sir John Trevor, and applied to a devise of real estate. He held, that marriage and a posthumous child, were a revocation of a will ofland. This decision was afterwards reversed, on appeal, by Lord Keeper Wright, who admitted the general rule; yet held that the case was controlled by the circumstance that the testator had devised his real estate in fee to his future wife, and thereby made provision for the wife, and through her, for his son Mr. J. Buller. (5 Term Rep. 61.) said, he had examined the register book, as to that case, and discovered the special reason which governed the Lord Keeper, which was, that after the testator’s death, the wife had devised to the posthumous son and died, and so there was no injury to any person by the establishment of the will. But he thought, notwithstanding, that the decision at the Rolls [512] was sound, and that the validity of the will ought not to have rested on the subsequent act of the wife.
The application of the rule of the civilians to wills of land, continued long after the case of Brown v. Thompson, to be a matter of doubt and hesitation in the Courts of law. Lord Hardwicke, in Parsons v. Lanoe, (1 Vesey, 189. Amb. 557.) cautiously withheld any opinion on the point; and Lord Northington, in Jackson v. Hurlock, (2 Eden. 263. Amb. 487) said, that the cases did not prove that marriage and the birth of a child would revoke a will of real estate. The distinction, however, between a will of real and personal estate, in respect to this^doctrine of presumptive revocations, could not well be supported; and Lord Mansfield observed, in Wellington v. Wellington, (4 Burr. 2165.) that as it was settled that marriage and a child were a revocation of a will as to persona] estate, he saw no ground of argument why the law should not be the same as to devises of land. This great question was at length finally and solemnly set^e<^^ Pi'll, by the Court of Exchequer, in Christopher v. Christopher, (Dick. Rep. 445.) and it, was adjudged by Ch.'B. Parker, and two of his brethren, in opposition to the opinion of Baron Perrot, that marriage and a child were a revocation of a will of land. The case of Spraage v. Stone, (Amb. 721.) followed soon after, and the principle received, in that cause, the sanction of the most distinguished judges; and it has stood from that time to this day upon an immoveable foundation. In that latter case, Spraage made a will in the island of Jamaica, in 1764, devising his real and personal estate. He afterwards married and had a son, and made a second will in England, giving all his estate to his wife, but this last will was unattested. The Court of Chancery in Jamaica decreed, that the marriage and son, together with the subsequent will, amounted to an implied revocation of the first will, so far only as related to the personal estate, and the first will, as to the real estate, was esta[513] Wished. On appeal, before the Lords of the Committee, at the Cockpit, consisting, among others, of De Grey, Ch. J. of the C. B., Sir J. E. Wilmot, late Ch. J. of the C. B., Sir Thos. Parser, late Ch. B. of the Exchequer, it was adjudged that the Jamaica decree be reversed, so far as it established the first will as to the real estate; and it was declared that the subsequent marriage and a son, were an implied revocation of the whole will of 1764, and that the real estate descended to the son as heir at lav/.
This whole subject has continued to receive great discussion in the English Courts, since the sera of our revolution; and it has led to much refinement, and been accompanied with many distinctions, growing out of new cases constantly arising amidst the endless variety of human affairs. The principle established in the preceding cases has, however, remained perfectly unmoved.
In Brady v. Cubitt, (Doug. 31.) Lord Mansfield said, he did not recollect a case in which marriage and a child had been held to raise an implied revocation, where there was not a disposition of the whole estate; and all the judges agreed, in that case, that these implied revocations by a subsequent marriage and a child, might be rebutted by parol evidence. As to this latter point, I apprehend it will be found that the Courts have rather cautiously abstained from any decided opinion as to the admissibility of extrinsic evidence to rebut the presumption of revocation from the circumstance of the marriage and child, and this decision in Douglas has been repeatedly questioned. The K. B. in Doe, exdem. Lancashire, v. Lancashire, (5 Term Rep. 49.) decided, upon very great deliberation, that marriage and the birth of a posthumous child, also, amounted to an implied revocation of a will of real estate. This was nothing more than the recognition of the very just and plain doctrine, that a posthumous child had equal rights, and was to be considered in the same situation, with a child born in the lifetime [514] of the father. But Lord Kenyon took Occasion to observe* that the foundation of the principle of these implied revocations was a tacit condition annexed to the will, that the party does not then intend that it should take effect, if there should be a total change in the situation of his family.
The subject next came before the Master of the Rolls, in Gibbons v. Caunt, (4 Vesey, 848.) upon a new state of facts, and presented a case which had never been decided. There was a marriage prior to the will, and then 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. Lord Almnley did not say the rule of decision would be the same, but he observed, that there was not a single argument that would not apply to the one case as much as to the other;, and he showed the inclination of his mind to be in favour of the implied revocation. But he further observed, that “ they do go the length of permitting evidence to be received against those implied revocations, and that he did not like it; and Lord Kenyon, in 5 Term Rep. did not form his opinion upon it.”
A case under a new aspect next presented itself before Lord Loughborough, (5 Vesey, 663.) in which the question was, whether a will was revoked by marriage and the birth of a child, when the testator had, shortly before the marriage, by will, given the residue of his estate over, after having provided an annuity for the person with whom he then cohabited, and a large provision for the children he might thereafter have by her. He then married that person, and had several children by her. The Lord Chancellor thought the case new, and submitted it for the opinion of the Court of K. B. This is the case of Kenebel v. Scrafton, reported in 2 East, 530. The Court of K. B., after great considera- , tion, decided, that the will was not revoked by the subsequent marriage and children, inasmuch as those new objects of duty were contemplated and duly provided for by the will. Lord Ellenborough, in delivering the opinion ojf [515] the Court, declared the rule to be settled, that marriage and a child, without provision made for the objects of these relations, operated a revocation of a will of lands; but that the rule only applied in cases where the wife and children were wholly unprovided for, and where there was an entire disposition of the whole estate, to their exclusion and prejudice. He approved of the ground of reason on which the doctrine of implied revocations was put by Lord Kenyon, and which was not a presumed alteration of intention, but a tacit condition annexed to the will when made, that it should not take effect, if there should be a total change in the situation of the testator’s family. Here the wife and children were specifically contemplated and provided for, though under a different character and denomination. And we observe, that in this case, the Court cautiously withheld an opinion on the point, whether the revocation, where there was no such provision in the will, could be rebutted by subsequent parol declarations of the testator in favour of the will.
So, in the case ex parte the Karl of Ilchester, (7 Vesey, 348.) Lord Kldon, with the assistance of the Master of the Rolls, and the Ch. J. of the C. B., held, that a second marriage and the birth of a child, the wife and children being provided for by the settlement, and there being children by the former marriage, was a case of exception to the rule, that marriage and a child, operate a revocation of a will.
Another qualification of the general rule is to be found in Sheath v. York, (1 Vesey and Bea. 390.) A widower having a son and two daughters, devised his estate, real and personal, and then married, and had a daughter. The Ecclesiastical Court held the will to be revoked as to the personal estate; but Sir Wrn. Grant thought that there was no 7 _ ° ground to presume the will revoked, as to the real estate, upon any implied condition annexed to it, or upon any presumed change of intention, where the testator had already an heir apparent, and the revocation would be of no use to the subsequent child, who could not take the land. It might [516] bé revoked as to the personal estate, for that lets in the subsequent child, but he held, that it was not, in such case, revoked as to the land.
From this review of the cases, it would appear to be a general rule, incontrovertibly established, that marriage and a child, amount to a revocation of a will, either of real or personal estate. There are a number of exceptions to this rule, but not one of them applies to the present case. If the will of 1807 was to prevail, it would be repugnant to the doctrine in every decided case. , Here is a total disposition of the whole estate, as respects the child. Here is wanting the accidental circumstance of a provision made by the mother for the child, which weighed with the Lord Keeper, in Brown v. Thompson. If this will was to prevail, it would, be the case of an only child left entirely destitute, and without any provision, under a will of a man of large fortune, disposing of his whole estate. Nor can we derive any circumstance to rebut the necessary presumption of a revocation, from the subsequent unattested will, left in an envelope with the former will uncancelled. The presumption of revocation is increased by the second will, which begins with a declaration, that all former wills were revoked, and which makes provision for this same child, with which the mother was then enseint. If declarations of the testator be admissible, in any case, (and they were admitted by Sir John JYicholl, in the Ecclesiastical Court,) and if the evidence of circumstances is to be received, (and all the cases seem to agree in this,) here are decided circumstances to show that the testator did not intend to leave his son destitute. I have no hesitation, therefore, in declaring, that the will of March 6th, 1807, was revoked by the subsequent marriage, and the subsequent birth of a child.
It is unnecessary to consider, in this case, whether the subsequent birth of a child, without the additional circumstance of the subsequent marriage, would have been sufficient to revoke the will; yet I am not willing to quit [517] this subject, without taking some notice of the late case of Johnston v. Johnston, (1 Phittimore, 447.) decided by Sir John Mcholl, in 1817, in the Prerogative Court of Canterbury, in which that Judge, in a very elaborate and learned opinion, reviews all the cases, and adopts the rule of the r 1 civil law. He held, that it was not an essential ingredient in these implied revocations, that a subsequent marriage should concur with the subsequent birth of issue; and that the birth of a child, when accompanied with other circumstances, leaving no doubt of the testator’s intention, was sufficient to revoke the will of a married man. The case before him was, indeed, enforced not only by the soundest principles of justice, but by the most persuasive equity. When the testator made his will he was married, and had two children living; and his will not only provided for them, but for a third child in ventre de sa mere. He lived twenty-two years afterwards, and his property had augmented from 20,000Z. to 300,000Z. sterling, and dying suddenly, he left three children, born after the will, wholly unprovided for, and one of the former children swept away the whole, as a residuary legatee. Such a case was almost too strong for any Court of justice, endowed with ordinary moral feelings and perceptions, to resist. He placed the doctrine of implied revocation, not where Lord Kenyon had placed it, on any tacit condition annexed to the will, but where Lord Mansfield, and (as I think) the civil law had placed it, on a presumed alteration of intention, arising from the occasion of new moral duties, which, in every age, and almost in every breast, have swayed the human affections and conduct. It was not the circumstance of marriage, ( of which the civil law took no notice, in reference to this point,) but the birth of offspring, that laid the true and rational foundation of a presumed alteration of the testator’s intention, and which intention constitutes the essence of every will.
It may be questionable, however, whether this last deci[518] sion has not carried the doctrine of revocation further than the English law will warrant. It appears to be in opposition to the decision in Shepherd v. Shepherd, already cited, and which was sent out of Chancery by Lord Camden, for the opinion of Sir George Hay; it was there held that the birth of a daughter and a son, after a former will making provision for the wife, and a child then in esse, was insufficient to revoke the will The general reasoning on this subject, in favour of the revocation, is, that the testator having contracted new relations, such as those of husband or father, he must have intended a revocation of his prior will, because he must have meant to discharge the moral duties attached to those relations. The claim of the wife to the benefit of this presumption, in the case of a devise of land, is admitted not to be very strong, because, if she was let in, the land would still descend to the heir, and the law has secured to her, in every event, a provision for life, out of the real estate. Her claim to a provision from the personal estate, rests on higher ground: for, in respect to that portion of her husband’s property, she is left entirely at the control of his will and pleasure; but her pretension is here also weakened, from the consideration of the provision by dower, which the common law has already secured to her. A stronger presumption of the testator’s change of mind, arises from the birth of subsequent children; for, they cannot, like the wife, atake care of themselves, by a suitable settlement, nor have they any fixed, unalienable provision, as the wife has, out of the real estate. They have, therefore, a very strong, natural, and moral claim to a competent support and provision, out of their father’s property.
But the answer to this is, that the disposition of property is and ought to be governed by settled rules, and that according to the language and authority of the general current of cases, there must be both marriage and a child, to work a revocation of a will. It is the policy of the English law, tp give to every man of competent will and understanding, [519] the absolute control (however imprudently or improvidently he maj at times exercise it) over the disposition of his estate; and children are not considered as having a legal interest or property in the effects of the father. Our law has rejected, or has never adopted the notion of the inofficiosum testamentum of the civil law. It would be dangerous, and might lead to loose speculations, to give greater effect than the settled doctrine of the English law has already done, to the occurrence of new domestic duties. Every person is permitted to make his own will, at his discretion ; and he may even disinherit his children, if he should be so inclined, whether they deserved, or not, such-extreme chastisement. Every material addition to the property of a testator, or alteration in the circumstances of his family, varies his relations and duties, either in kind or degree, and might be made the ground of very plausible and pathetic claims upon the Court for the application of this doctrine of a presumed revocation. Courts would be running the hazard of "substituting their will for that of the testator.
Indeed, Sir John Nicholl was not inclined to controvert the rule laid down by Sir George Hay, in Shepherd v. Shepherd, (ubi sup.) and by the K. B. in White v Harford, (4 Maule and Selw. 10.) that the mere subsequent birth of children, unaccompanied by other circumstances, did not amount to a presumed revocation ; and it was the concurrence of the other circumstances rendering the intention “ plain and without doubt,” united with the birth of the children, that dictated the decree. If ever such a case, with equally pressing circumstances, should occur here, I should never dissent from that opinion willingly, nor without great difficulty and unaffected regret.
(2.) The first will being thus revoked, and rendered null and void, we have only to deal with this case under the second will, of the 14th March, 1809. If the first will be ab[520] solutely revoked, there is no pretence for connecting the first will with the second, and holding the latter to be a mere modification of the former, and to be under its influence and control, according to what has been supposed to ^ave been done by Lord Hardwicke, in Brudenell v. Bough-ton. (2 Jltk. 268.) That case has no manner of application, x 7 . an(j to connect the one will with the other, would be, mortua jungere corpora vivis. The first will is absolutely dead, at v o ¿ v 7 ^east’ as to everJ thing that concerns the rights of the wife ancJ child,
The will of 1809 was not executed with the solemnities' requisite either by our law, or that of Demarara, to pass c real estate, and so far the estate descended to the child, as - heir at law, subject to the dower of the wife. It cannot admit of a doubt, upon the proof in the case, that the slaves and effects attached to the plantation in Demarara, passed as appurtenant to it,- and as part of the plantation, to the heir. They, together with the plantation, were real estate, not reached, or affected, by the imperfect will of 1809. The law of Demarara on this point, has been proved, as a matter of fact, by a person acquainted with the laws of that place, and who had long resided there, and sustained a judicial office. If he was nota professed jurist, the plaintiff should have furnished more certain proof of the law of Demarara.