Nutt v. Norton

7 N.E. 720, 142 Mass. 242, 1886 Mass. LEXIS 312

• Court: Massachusetts Supreme Judicial Court
• Decided: July 2, 1886
• Status: Published

Opinion

Morton, C. J.

It was decided in Swan v. Hammond, 138 Mass. 45, that a will of a woman was revoked by her subsequent marriage. See also Blodgett v. Moore, 141 Mass. 75. In the case before us, after the will offered for probate was executed, the testatrix married, and had a child born of the marriage who survived her.

Upon these facts, a revocation of the will is implied by law, and this implication cannot be rebutted by paroi evidence that the parties did not know the rule of law, or that they did not intend that the subsequent marriage and birth of a child should operate as a revocation. Marston v. Roe, 8 A. & E. 14.

The will does not make any provision for the husband or after-born children. The fact that the man the testatrix was about to marry witnessed the will, and the paroi evidence that he knew its contents, are immaterial. Whether the act of the husband in witnessing the will could, by way of estoppel, prevent him from contesting the will, if he were the only party interested, as contended by the appellants, we need not discuss. It certainly cannot operate to give validity to the will as against the after-born child. Upon the facts of this case, therefore, we are of opinion that the will offered for probate was revoked by implication of law.

Decree affirmed.