Gay v. Gay , 84 Ala. 38 ( 1887 )

OLOPTON, J.

Section 2282 of the Code of 1876 (being section 1953 of Code, 1886), provides: “If, after making of any will, disposing of his whole estate, the testator marry, and have issue of 'such marriage, born, either in his lifetime or after his death, and the wife or such issue is living at the death of the testator, such will must be deemed revoked, unless provision has been made for such issue by some gift or settlement; or unless such issue has been provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence can be received for the purpose of rebutting the presumption of such revocation.” Julius B. Gay, being then a widower, • made his will August 3d, 1884, devising and bequeathing Ms real and'personal property to bis six children born of. a deceased wife. In February, 1885, be married a second time, and a few days prior to tbis marriage, be and bis intended wife made an ante-nuptial contract, tbe nature and provisions of wbicb will be considered hereafter. Tbe testator died December 31st, 1887, leaving bis wife and one child born of tbis second marriage surviving him. Tbe question presented is, whether on these facts, tbe will shall be deemed revoked.

Tbe case brings before tbe court, for tbe first time, tbe construction and effect of tbe statute. It should be construed in reference to tbe state of tbe law as it existed at tbe time of tbe formation and adoption of tbe statute. Tbe established doctrine, wbicb was borrowed by tbe English courts from tbe civil law, was, that marriage and tbe birth of a child revoked a prior will, whether of real or personal estate, or both, where tbe entire estate was disposed of, and no provision made for tbe wife and child by tbe will, or otherwise. As to tbe theory of tbe doctrine and tbe principle on wbicb it rested, discrepant views were, entertained, the result being conflicting inferences and conclusions in respect to tbe time tbe provision for tbe wife and child should be made in order to prevent a revocation. The temporal courts generally sustained tbe view, that tbe revocation was tbe consequence of a rule of law, grounded on a tacit condition annexed to tbe execution of tbe will, that an entire alteration of tbe state of circumstances under wbicb tbe will was made, produced by subsequent marriage and birth of a child, should operate a revocation. On tbe other band, tbe ecclesiastical courts maintained tbe view, that tbe implied revocation was founded on tbe presumed intention of tbe testator to revoke bis will, arising from tbe change of tbe state of circumstances under wbicb it was made, and from •tbe new social and moral duties resulting therefrom. Lord Mansfield sustained tbe rule upheld by tbe ecclesiastical courts — a presumed alteration of intention — wbicb, Chancellor Kent, considered “tbe higher and firmer ground.” 4 Kent (12 Ed.), 575; Brady v. Cubit, Doug. 31.

Tbe present statutory provisions were first introduced into tbe Code of 1852, being section 1957. It is not a legislative affirmation in toto of tbe doctrine as it existed prior to, and independent of tbe statute. By tbe statute, tbe wife or tbe child must be living at tbe death of tbe testator, while by tbe common law, tbe death of tbe child before tbe death of the testator did not revive a will revoked by marriage and the birth of the child. By the English law, provision must be made for both wife and child, while the statute requires provision shall be made only for the child. In these respects the Alabama statute modifies the doctrine as established by both the temporal and ecclesiastical courts in England. It was framed and enacted in the light of the conflicting opinions held by these courts in regard to the principle on which the doctrine was grounded, and of the inconsistent and antagonistic results produced thereby. After having provided, that marriage and birth of a child must be deemed a revocation of a prior will, if the wife or child is living at the death of the testator, unless provision has been made for the issue by gift or settlement, or in the will, or such issue is mentioned therein in such a way as to show an intention not to make such provision, the statute declares: “no other evidence can be received for the purpose of rebutting the presumption of such revocation.” The effect is to declare the particular kind and character of evidence, which shall be requisite to rebut the presumption of revocation, and to abrogate the rule sustained by some of the courts, that any evidence was admissible which showed a contrary intention. In respect to the statute of New York, of which our statute is a substantial copy, Chancellor Kent says, “this provision is a declaration of the law of New York as declared in Brush v. Wilkins, with the additional provision of prescribing the exact extent of the proof which is to rebut the presumption of revocation, and thereby relieving the courts from all difficulty on that embarrassing point.” The law, as declared in the case referred to, was, that the presumptive revocation may be rebutted by circumstances. Brush v. Wilkins, 4 John. Ch. 506; 4 Rent, 12 ed. 578. By clear implication the statute declares, as the law of this State, the rule maintained by the ecclesiastical courts and approved by Lord Mansfield, which placed the doctrine of implied revocation on a presumed alteration of intention, arising from a change of circumstances, and from new relations and duties, with the modification, that the presumption of revocation shall be conclusive, unless provision is made for the after born child, or an intention not to make such provision is shown, as required by the statute.

Erom the doctrine that the revocation was a consequence of a tacit condition annexed to the execution of the will, it followed that a provision for the wife and child by a settlement made after the will, did not prevent a revocation. 1 Jarman on Wills (Ran. & Tal. Ed.) 276. The statute having impliedly abrogated this rule, or having declared that it shall not be regarded in this State, the conclusion following from the rule falls with it, and under the statute, a settlement pz’oviding for the child, made after the execution of the will, is sufficient to rebut the presumption of revocation. We can conceive no adequate reason on which to base an inference, that the legislature intended that provision, by gift or settlement should be made before the child was born, and ivhen a second marriage may not, and probably could not, have been reasonably contemplated.

2. The remaining question is, whether the ante-nuptial settlement is a provision for the child in the meaning of the statute ? A construction should not be placed on the statute which will impair, or interfere, with the right of the testator to absolutely dispose of his property as he may deem proper, further than its terms, expressly or by clear implication, require to accomplish the intended ezids. It does not operate to deprive the testator of the right azid power to determine the nature and extent of the prpvisiozi, which he will make for those having claims on his natural affections. It does azot undertake to declare the measure and extent of the provision which the testator must make for the after born child. He may make no provision whatever, provided, the child is mentioned in the will in such a way as to show an iiztention not to make any provision. The requirements of the statute are satisfied, if it be shown by a provision, made by gift or settlement, or by mentiozz of the isszze in the will, that such issue was fully in his mind and contemplation, and that he acted deliberately on the matter of making provision for such issue. In Kennebel v. Scrafton, 2 East. 529, Lord Ellenborough said: that, the doctrizie of implied revocation only applies where there is an ezitire disposition of the whole estate, and the Avife and childrezi are 'wholly unprovided for. Uzider the statute, the testator has discretion and capacity to determine the nature and extent of the provisiozi, when made by gift or settleznent, the same as when made in the will, Avith the qualification, that the gift or settlement’will be insufficient, if by reason of gross inadequacy, it shall be an equivalent of no provision. He. may make no provision Avhatever, but in such case, the intention must be shown by mention of the issue in the will. It was deemed that the issue had sufficient security resting on parental affection, that the father’s power of disposition would not be abused.

By the ante-nuptial settlement, the testator, in considera-tion of the intended marriage and of the relinquishment by his intended wife of all claim which she may, or might become entitled to, by reason of the marriage, upon his real and personal property conveyed to her, real and personal property upon trust, that she should hold the same during her natural life or widowhood, with remainder to any issue of the marriage living at the time of the testator’s death, or at the time of her re-marriage, and should such issue die -unmarried, then to the heirs at law of the testator. In ex parte Earl Ilchester, 7 Ves. 348, on the marriage of the testator subsequently to making his will, a settlement was made in favor of his wife, by which provision was also made for the children of the intended marriage. Lord Chancellor Eldon held that the wife and children being provided for, and there being children of the former marriage, the Avill was not revoked by the second marriage and the birth of children. It has also been held, that a marriage settlement, by which an estate is secured to the wife during her life, with remainder to the children of the intended marriage, is a sufficient provision for wife and children to rebut a presumptive revocation. Talbot v. Talbot, 1 Hag. 299. A provision creating a trust for the child, which a court of equity would enforce, is a provision for the benefit of the child, such as falls within the words, as well as the spirit of the statute. Walker v. Hall, 34 Penn. St. 483: Clearly, provision is made by the ante-nuptial settlement for the child, the issue of the second marriage. The testator, at the time he made the ante-nuptial settlement, had fully in mind and contemplation the probability of issue by his intended marriage, acted deliberately on the matter, and determined the nature and extent of the provision, which he would make for such issue. If the will were revoked, the ante-nuptial settlement would remain in force, and the child born of the second marriage would receive the property conveyed by the settlement — the provision made by the testator — in addition to an equal distribution in his estate with the children of the first marriage. A construction should not be placed on the statute, which would result in such inequality and injustice, contrary to the intentions of the testator. We regard the ante-nuptial settlement, which prima facie makes a substantial provision, a sufficient provision for the after born child, in the meaning of the statute, to prevent a revocation of the will.

Reversed and remanded.

SOMEBYILLE, J.

The construction of section 1953 of the present Code (Code, 1876, § 2282) does not seem to me to be involved in any doubt or embarrassment, by reason of the language in which it is expressed.

My analysis of the section is briefly this: The revocation of a testator’s will, which is declared to be effected by his marriage and subsequent birth of issue, can take place only in the following concurring contingencies: (1) The making of a will disposing of substantially his whole estate; (2) The testator’s subsequent marriage-, (3) Birth of issue from such marriage at any time, whether before or after the testator’s death;' (4) The survival of either the wife, or such issue after the testator’s death.

If these four incidents occur, the will is totally revoked, except in the following cases, which operate to prevent revocation: ' (1) Where the testator, in his will, provides for such issue, or makes mention therein of such issue so as to show an intention, express or implied, not lo malee such provision; (2) Unless before death he makes provision for such issue by some gift, or settlement, whether before, contemporaneous with, or after the making of his will.

The only mode of rebutting the presumption of revocation raised by the statute is by evidence of a provision having been made in one of the two modes last mentioned. No oral declarations of the testator are admissible in evidence for the purpose of raising a contrary intention.

Section 1955 of the Code (1886) has reference to a partial revocation of the will, so far as to allow a child born after the making of the will to take as in case of intestacy, and does not affect the question before us.

These conclusions seem to me to clearly follow from the obvious meaning of the words employed in the statute, which leave but little room for construction.

I concur in the view of Judge Clopton that the ante-nuptial settlement made, in this case, by the testator for the child afterwards born, was a sufficient provision to prevent the revocation of the will, which would otherwise have followed under the operation of the statute.