McCay, Judge.
Whether the English rule, making the marriage of a testator and the birth of a child to him, a revocation of a previous will, under certain circumstances, was based upon a presumed intention of revocation, or whether it was based upon an implied condition attached to the will itself, is not, in the view I take of the great question in this case, material to be discussed. In either view of it, that rule was founded in the desire of the Courts that the wife and child should be provided for, and, in all the cases, the fact of provision or no provision in some way of a substantial character, was the pivot on which the result turned. In my judgment, the question under our Code turns upon entirely a different idea, and the reasonings and analogies of the English Judges are entirely inapplicable to it. Our Code, section 2441, is as follows: “In all cases, the marriage of a testator or the birth of a child to him, subsequent to the making of a will, in which no provision is made in contemplation of such an event, shall be a revocation of the will.”
The revocation is, by these words, made to turn, not upon any provision made for the wife or child, but upon whether the testator, by his will, has made a provision for such an event. If, by his will he has done so, the will is not revoked; if he has not, it is revoked. It is immaterial whether this provision for the event is a provision for the benefit of the wife or child or not; it is enough if it is for the event. If the provisions of the will meet the requirements of the statute, it [440]*440is not revoked; if they do not, it is revoked. Whether the wife or child is provided for in some other way has nothing to do with it; the law, by its express, positive^ terms, makes it turn upon the provisions of the will.
The only questions to be asked are: 1st, Was the marriage or birth subsequent to the making of the will? 2d, Does the will make a provision for the event f If the first question must be answered in the affirmative and the second in the negative, the will must stand revoked, unless the Court has power to say and does say that it will alter or modify the law to meet a case that it may think a hard one.
It is pretty evident that Mr. Deupree did not intend to revoke his will by his marriage; but the difficulty is, (supposing this paper of 1853 to be his last will,) he has not expressed that want of intent in the legal way, to-wit: he has not, by his will, made a provision in contemplation of the event. The law has fixed that way and that way only, as the means by which such a want of intent shall be manifested; and the Courts have no more power to say he-may do this in any other way than they have to say he may show his intent to make a will in some other way than in the way prescribed. Exactly such a fact, and exactly such a will as this section of the Code provides for here, exist. It is, in my judgment, therefore, revoked. But, if Mr. Deupree, in 1864, made an addition to his will, confirming it and making a provision for the event of his marriage, then, as this will consists of both these papers, his will is not revoked by his marriage.
I agree with the Court below that the paper executed in 1864 is testamentary in some of its provisions. It undertakes to provide for the disposition of certain of his property at his death, and it in express terms reaffirms his will made in 1853, by declaring that any children to be born to him shall take under said will, etc. And if that paper was executed as a will, then I am clear his will, his whole will — the paper of 1853, and the paper of 1864 — was not revoked by his marriage. Not because the wife is provided for, but be[441]*441cause Mr. Deupree has, in the legal way, declared his intention not to revoke his will, to-wit: by making provision in it in contemplation of the event of his marriage. The legal execution of this paper was a question of fact for the jury, under the law. Under the evidence it was, without doubt, signed and witnessed by three witnesses, who subscribed their names thereto as witnesses. The only serious question on the trial, on this branch of the subject, was whether the witnesses signed the paper in the presence of Mr. Deupree. It was contended on the trial, by one side, that Mr. Deupree was present, and by the other that he was not; on this point there was a great deal of evidence.
It is contended that the Judge, in his charge to the jury, gave them an erroneous instruction in a matter material to the determination of this point. It was said that, as the witnesses all testified to the signature of the testator, and to their own signatures, and were unable, in consequence of the lapse of time, to state affirmatively that he was present v'hen they signed, or that he was not present, there was a presumption of law, from the fact of attestation, that the paper was duly attested. That is, that it was attested as the law requires such papers to be attested. The Court charged the jury that such was the law, provided the attestation clause stated or recited the presence of the testator during the signing by the wetnesses; but if the attestation clause did not so recite, no such presumption arises, even though the witnesses fail to remember affirmatively the fact of the presence or the absence of the testator. My brother Montgomery and myself think the Judge erred in this charge.
The attestation clause is not a necessary part of the will. A will is good, if properly proven, without any such clause: Redfield on Wills, 1st volume, 238; Williams on Executors, 83. Our Code declares that there is no particular form prescribed for a will: Section 2360. It must be signed and Avitnessed as the Lav requires, and that is all. There is no requirement that there shall be any attestation clause — much [442]*442less that that clause shall state and certify to all the necessary requirements: Code, section 2380. "Whether a paper is a will or not depends on its contents, and not on what if is called, or considered to be, by either the witnesses or the maker of it: Code, section 2360. There is no question as to the general rule, that, on the death of the witnesses, or on the failure of their memory, the proof of the fact of execution begets a presumption that all the details of the fact were such as the law requires: 1 Greenleaf’s Ev., section 38 (a); 1 Redfield on Wills, 237, 238, 239. And the positions laid down by these authors are well supported by the authorities: Croft vs. Parkhurst, 2 Strange’s Reports, 1109; Heard vs. Joiner, 2 Comyn, 531; Clark vs. Donnorant, 10 Leigh, 22; Fatheree and wife vs. Lawrence, 33 Mississippi, 622.
These cases establish, also, that this presumption does not depend on the recitals in the attestation clause. The case in Mississippi was a case of a will, and the paper had no attestation clause, except the word “test;" and the "Virginia, case was, as is the case at bar, a paper claiming to be a will, with an attesting clause, like this : “Signed, sealed and delivered.” It is clear to me, therefore, that it was error in the Court to say this presumption did not arise, unless the attesting clause stated the presence of the testator. In 2 Redfield on Wills, 35, it is said and even where there is no attestation clause, or it is defective, there still remains the presumption that all which appears upon the paper occurred in the order stated, and as the law requires it shall be done, * * * according to the maxim,
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McCay, Judge.
Whether the English rule, making the marriage of a testator and the birth of a child to him, a revocation of a previous will, under certain circumstances, was based upon a presumed intention of revocation, or whether it was based upon an implied condition attached to the will itself, is not, in the view I take of the great question in this case, material to be discussed. In either view of it, that rule was founded in the desire of the Courts that the wife and child should be provided for, and, in all the cases, the fact of provision or no provision in some way of a substantial character, was the pivot on which the result turned. In my judgment, the question under our Code turns upon entirely a different idea, and the reasonings and analogies of the English Judges are entirely inapplicable to it. Our Code, section 2441, is as follows: “In all cases, the marriage of a testator or the birth of a child to him, subsequent to the making of a will, in which no provision is made in contemplation of such an event, shall be a revocation of the will.”
The revocation is, by these words, made to turn, not upon any provision made for the wife or child, but upon whether the testator, by his will, has made a provision for such an event. If, by his will he has done so, the will is not revoked; if he has not, it is revoked. It is immaterial whether this provision for the event is a provision for the benefit of the wife or child or not; it is enough if it is for the event. If the provisions of the will meet the requirements of the statute, it [440]*440is not revoked; if they do not, it is revoked. Whether the wife or child is provided for in some other way has nothing to do with it; the law, by its express, positive^ terms, makes it turn upon the provisions of the will.
The only questions to be asked are: 1st, Was the marriage or birth subsequent to the making of the will? 2d, Does the will make a provision for the event f If the first question must be answered in the affirmative and the second in the negative, the will must stand revoked, unless the Court has power to say and does say that it will alter or modify the law to meet a case that it may think a hard one.
It is pretty evident that Mr. Deupree did not intend to revoke his will by his marriage; but the difficulty is, (supposing this paper of 1853 to be his last will,) he has not expressed that want of intent in the legal way, to-wit: he has not, by his will, made a provision in contemplation of the event. The law has fixed that way and that way only, as the means by which such a want of intent shall be manifested; and the Courts have no more power to say he-may do this in any other way than they have to say he may show his intent to make a will in some other way than in the way prescribed. Exactly such a fact, and exactly such a will as this section of the Code provides for here, exist. It is, in my judgment, therefore, revoked. But, if Mr. Deupree, in 1864, made an addition to his will, confirming it and making a provision for the event of his marriage, then, as this will consists of both these papers, his will is not revoked by his marriage.
I agree with the Court below that the paper executed in 1864 is testamentary in some of its provisions. It undertakes to provide for the disposition of certain of his property at his death, and it in express terms reaffirms his will made in 1853, by declaring that any children to be born to him shall take under said will, etc. And if that paper was executed as a will, then I am clear his will, his whole will — the paper of 1853, and the paper of 1864 — was not revoked by his marriage. Not because the wife is provided for, but be[441]*441cause Mr. Deupree has, in the legal way, declared his intention not to revoke his will, to-wit: by making provision in it in contemplation of the event of his marriage. The legal execution of this paper was a question of fact for the jury, under the law. Under the evidence it was, without doubt, signed and witnessed by three witnesses, who subscribed their names thereto as witnesses. The only serious question on the trial, on this branch of the subject, was whether the witnesses signed the paper in the presence of Mr. Deupree. It was contended on the trial, by one side, that Mr. Deupree was present, and by the other that he was not; on this point there was a great deal of evidence.
It is contended that the Judge, in his charge to the jury, gave them an erroneous instruction in a matter material to the determination of this point. It was said that, as the witnesses all testified to the signature of the testator, and to their own signatures, and were unable, in consequence of the lapse of time, to state affirmatively that he was present v'hen they signed, or that he was not present, there was a presumption of law, from the fact of attestation, that the paper was duly attested. That is, that it was attested as the law requires such papers to be attested. The Court charged the jury that such was the law, provided the attestation clause stated or recited the presence of the testator during the signing by the wetnesses; but if the attestation clause did not so recite, no such presumption arises, even though the witnesses fail to remember affirmatively the fact of the presence or the absence of the testator. My brother Montgomery and myself think the Judge erred in this charge.
The attestation clause is not a necessary part of the will. A will is good, if properly proven, without any such clause: Redfield on Wills, 1st volume, 238; Williams on Executors, 83. Our Code declares that there is no particular form prescribed for a will: Section 2360. It must be signed and Avitnessed as the Lav requires, and that is all. There is no requirement that there shall be any attestation clause — much [442]*442less that that clause shall state and certify to all the necessary requirements: Code, section 2380. "Whether a paper is a will or not depends on its contents, and not on what if is called, or considered to be, by either the witnesses or the maker of it: Code, section 2360. There is no question as to the general rule, that, on the death of the witnesses, or on the failure of their memory, the proof of the fact of execution begets a presumption that all the details of the fact were such as the law requires: 1 Greenleaf’s Ev., section 38 (a); 1 Redfield on Wills, 237, 238, 239. And the positions laid down by these authors are well supported by the authorities: Croft vs. Parkhurst, 2 Strange’s Reports, 1109; Heard vs. Joiner, 2 Comyn, 531; Clark vs. Donnorant, 10 Leigh, 22; Fatheree and wife vs. Lawrence, 33 Mississippi, 622.
These cases establish, also, that this presumption does not depend on the recitals in the attestation clause. The case in Mississippi was a case of a will, and the paper had no attestation clause, except the word “test;" and the "Virginia, case was, as is the case at bar, a paper claiming to be a will, with an attesting clause, like this : “Signed, sealed and delivered.” It is clear to me, therefore, that it was error in the Court to say this presumption did not arise, unless the attesting clause stated the presence of the testator. In 2 Redfield on Wills, 35, it is said and even where there is no attestation clause, or it is defective, there still remains the presumption that all which appears upon the paper occurred in the order stated, and as the law requires it shall be done, * * * according to the maxim, omnia praesumuntur site et solemniter esse aeta donee probatur in eontrarium.
There are some cases of wills executed under powers, prescribing certain forms, when it has been held that the proof must show that the forms have been complied with ; and even though the witnesses be dead, or cannot remember, the presumption of compliance does not arise, unless the will itself or the attestation clause so states: 1 Redfield, 238, 239. But I have not found a case of a will, made under the stat[443]*443ute, where it has been held that the presumption arising from the fact of attestation is made to depend on the" recitals in the will, or the attestation clause. Some of the cases say the presumption is. stronger, if the fact be stated, but it exists even if there be no attestation clause, or if it be imperfect. See, also, Dean vs. Dean, 27 Vt.; Elhat vs. Elhat, 10 Allen; Lawrence vs. Norton, 45 Barbour.
As a matter of course, the presumption is stronger or weaker, according to any material facts connected with the case, and, if it was recited, this would strengthen it. But it is a wise rule of law that such a presumption should exist. How many wills do not come up for probate, until many years after the execution of them! Sometimes, the witnesses can only recognize their own hand-writing; sometimes they only remember the fact that the testator signed, and perhaps only that they signed. Who was present and all the other details, have passed from memory. To say that under such circumstances the will is not to be probated, would be a death blow to wills.
It is said, however, that the witnesses in the case at bar do not fail to remember, and that even if they do, there is such an abundance of evidence that the testator was not present as to have required the verdict against the propounders, had the law been given rightly. As this case is to be tried over again, and it is not fair to either party for this Court to discuss the weight of the evidence, I will only say, that for my part, I think there is evidence to justify a verdict either way, and that, in my judgment, the witnesses to the will do fail to remember what was the real truth of the case. The inference drawn by two of the witnesses from certain facts which they do remember, is not evidence. It is only opinion. It is not rememberanee, but inference, which it was for the jury to infer or not, from the facts stated. The recollection of a witness, though it may be indistinct, is evidence for what it is worth, but his opinion, entertained now as an inference from certain facts which he does remember, is [444]*444not evidence. The presence or absence of the testator is a matter of fact, and is not to' be proven by opinions, even though the facts be stated. I do not think either of the witnesses to the will does state as a fact that the testator was not present at the time they signed. One of the witnesses says he was present when he took the pen to sign, but all the rest is merely want of any recollection of either seeing him or not seeing him. As to the other evidence, as I have said, I do not think it fair to discuss it in detail. I only say that if the jury had been told there was a presumption of the presence of the testator at the time of the witnesses’ signature, if they failed to remember the truth of either his presence or absence, it is possible they might have come to a dfferent conclusion. Had this charge been given — I do not say the jury ought to have found one way or the other — I only say that in my judgment, a verdict in favor of his presence would not have come among that class of verdicts which this Court will declare illegal, and set aside. The evidence would not have demanded the verdict. It would not have been illegal for the jury to set up this paper as a will. Upon the other points made we are all agreed.
The witnesses cannot, under our law, be compelled to go out of their county : Code, 3788, 3471, 2394, 3821-3. And it was in the power of the parties, under the direction of the Court, to present the original paper to the witnesses by interrogatories. Nor was the Court in error in permitting Mrs. Deupree to be sworn. So far as this paper is a will, it is not a contract with her, nor has she any interest in it as such, since she has bound herself not to take anything from his estate. The answer of Mrs. Atkinson is, in substance, a reply to the natural import of the question; at any rate, if it fails, it is in very immaterial matters.
Judgment reversed.