Ordish v. McDermott

2 Redf. 460

• Court: New York Surrogate's Court
• Decided: January 15, 1877
• Status: Published

Opinion

The Surrogate.

I think there are very serious doubts upon the evidence, whether the contestant is a son of the testator. The contestant substantially abandons the objection filed to the probate of the will, and claims that the discovery that testator’s son was living, constitutes a revocation of the will, and this is the only question of law, which it seems to me needful to discuss.

The testator died on the 26th day of March, 1875, and it is claimed by the contestant, that in 1872, the proponent was called upon by the contestant, who claimed to be his son, by his former wife, and yet no change in his will was made on that account.

The statute (2 Rev. Stat, 64, § 43) provides that if after the making of a will, disposing of the whole estate of the testator, he shall marry, and have issue of such marriage, born either in his life-time, or after his death, and the wife or issue of such marriage shall be living at the death of the testator, the will shall be deemed revoked, unless provision shall be made for such issue by settlement, or in the will, so as to show an intention not to make such provision.

By section 42, it is provided that no will shall be revoked, or altered, otherwise than by the acts referred to therein, and no mention is made of the discovery of an heir, either forgotten or unknown by the testator, at the time of the execution of the will, and I am of the opinion that when the statute undertook to define what should constitute a revocation, all other causes must be excluded.

In Langdon v. Astor (16 N. Y., 9), Chief Justice Denio, after citing the statute referred to, says: “ The argument and the opinion which I have before mentioned is, that satisfaction of a legacy by an advancement made by the testator in his life-time, is an implied revocation ; thaf the statute in its general language embraces all manner of revocations, and that the words, ‘ except in the cases hereinafter mentioned,’followed as they are by special instances in which particularly implied revocations are allowed, render it quite clear that no other description of revocation either express or implied can now occur. The argument appears to be unanswerable if ademption or satisfaction is the same thing as implied revocation.”

In Delafield v. Parish (25 N. Y., 9), Chief Justice Selden says: “Without examining the question whether the circumstances relied upon by counsel would amount to an implied revocation at common law,it seems to me that the statute presents an insurmountable obstacle to the establishment of such a revocation here.” And he quotes the statute and the Eevisors in their notes, “ tli at it is believed that the provisions contained in the sections referred to, dispose of the whole doctrine of implied revocations.”

But if this were not so, it is equally clear that the circumstances disclosed in this case would nob constitute a revocation at common law.

In White v. Barford (4 Maule &c Selwyn, 10) it was held that the testator having married, and afterwards made his will, and devised to his niece, and afterwards dying leaving Ms wife enciente with a daughter which was unknown to him, the birth of the daughter was not a revocation of the will. In that case, Lord EllenboRough states the rule to be, that marriage and having children, where both circumstances concur, has been deemed a presumptive revocation, but it has not been shown that either of them singly is sufficient, and he instances a case of a sailor who made Ms will in favor of a woman with whom he cohabited, and afterwards went to the West Indies, and married a woman of considerable substance; it was held, notwithstanding the will swept away from the widow every shilling of the property, the birth of a child must necessarily concur, in order to constitute an implied revocation.

In Sheperd v. Sheperd (5 Term Reports, 51), in note, substantially the same doctrine is maintained. See also Brush v. Wilkins, 4 Johns. Ch., 506, and cases therein cited, and discussed.

I am of the opinion that the discovery of the existence of the alleged son, if he be such, did not revoke the will.

That the will has been duly proved, and the same should be admitted to probate.

Order accordingly.