Miller and Others v. Phillips , 9 R.I. 141 ( 1869 )

The testatrix, Sarah Miller, made a will in April, 1866, and married August, 1866, and died June, 1867. The will was admitted to probate by the Court of Probate of North Kingstown, and on appeal to the Supreme Court, on trial by jury, a verdict was rendered in favor of the will, at the February term, 1868.

The motion for a new trial is founded on two alleged reasons; that improper testimony was allowed, and that the verdict is against the evidence.

A witness was asked, whether the testatrix spoke of the will after her marriage. It was objected to and ruled in, and the witness answered: she did speak of the will to me after her marriage. Some declarations of the wife to her husband, Aylesworth, were stricken out by the court.

It appeared that the testatrix was, at the time of this marriage, sixty four years old, and that this was her fourth marriage.

The appellant contends: 1. That the marriage of the testatrix worked a revocation of the will. 2. There was no act of the testatrix to show that the will was made in view of marriage, or that it was to stand notwithstanding the marriage. 3. That evidence that the testatrix spoke of the will after marriage was improperly admitted.

By the old authorities, marriage alone, in case of a woman, absolutely revoked a will. This was because a married woman could make no will. As the law now stands, there is no more reason why marriage should work an absolute revocation in case of a woman, than in the case of a man. And we recognize as sound law the construction put upon our statute, (chap. 154, § 5,) by the Supreme Court, in Wheeler v. Wheeler, (1 R.I. 364,) that revocation of a will by marriage, under our statute, is presumptive only.

The doctrine of implied revocation of wills, is of comparatively modern date, and was adopted from the Roman civil law. See the cases referred to in Johnston v. Johnston, 1 Phillim., 447, and Lord Kenyon in Lancashire v. Lancashire, 5 Durn East. 59.

And the evidence that the testatrix spoke of her will, we think, was properly admitted. Although there was for a time a great conflict of authority on the question, whether parol evidence could be admitted in order to rebut the presumption of revocation, we consider the weight of authority now to be strongly in favor of its admissibility. It is, indeed, to use the words of Sir John Nichol in Johnston v. Johnston, supra, the lowest species of evidence, and always to be received with caution; they may be insincere, or the passing thought of a moment, and they may be easily misapprehended and misrepresented; on the other hand, they may be made seriously and deliberately, and upon occasions where great weight should be attached to them. At any rate they are admissible, and to be weighed by the jury in connection with other evidence. Legge v. Legge, 1 Ld. Raym., 441; Brady v. Cubit, 1 Doug., 31; Hall v. Dunch, 1 Vern., 329; Goodlittle v. Otway, 2 H.B. 522; Holloway v. Clarke, 1 Phillim. 339; and on the point that the verdict is against the weight of evidence, we see no reason for setting it aside.

Motion for new trial refused.