Paschal P. Wheeler, the testator, made his will on the 13th of April, 1849; on the 15th of the same month, in the same year, he married Sarah B.B. Hawkins, and, in the course of the same year died, leaving the said Sarah, his widow. She objects to the probate of the will upon the ground that it was revoked by the marriage under the third section of the statute. Digest of 1844, p. 231.
The counsel for the widow contend, that the revocation by marriage is absolute under the statute.
The counsel for the appellants contend, it is only primafacie, and may be rebutted by circumstances which show a counter intent.
At common law, marriage and the birth of a child worked an implied revocation, and this upon the ground of a presumed alteration in the intent of the testator from the new relation of marriage and the birth of a child, or, of a tacit condition annexed to the will, that marriage and birth of a child should revoke it. Marriage alone, was insufficient to make such revocation. Doe on the demise of Lancashire v. Lancashire, etal., 5 Term R.P. 49. In this case, Lord Kenyon went upon the ground of a tacit condition annexed to the will. Havens andwife v. Vandenburgh, 1 Denio, page 29; Brush v. Wilkins, 4 Johns. Ch. Rep. 506; Christopher v. Christopher, 2 Dickens, 445; 4 Burr. 21, 82; Bradg v. Cubitt, 1 Douglas, 31; Wilcox v. Roots, 1 Washington, 140.
But this implied revocation might be rebutted by circumstances showing a counter intent. Wilcox vs. Roots,1 Wn. 240; Brush v. Wilkins, 4 Johns. Ch. 506; Ex parte theEarl of Ilchester, 7 Vesey, 348; Havens and wife *Page 372 v. Vandenburgh, 1 Denio, 27; Brady v. Cubitt, 1 Doug. 31;French v. Scriptor, 2 East, 530.
The doctrine that a revocation from marriage and the birth of a child is presumptive only, was overruled in the Exchequer Chamber in the case of Marston v. Roe, 8 Ad. El. 14. The court held such revocation was the result of a rule of law, and wholly independent of the intent of the testator, and, therefore, no evidence was admissible to show a counter intent. But the court limit the application of the rule to a case, where the testator, at the time of making the will, had no children by a former marriage. It does not apply, therefore, to the case under consideration, for here the testator had children by a former marriage, to whom by his will his estate is given.
But we prefer the rule of the earlier English cases, confirmed by the decisions of the courts of our own country.
We agree, that evidence of the parol declarations of the testator are inadmissible to rebut the presumption of revocation; but facts clearly showing a counter intent may be proved. The revocation is implied from facts, — marriage and the birth of children, — and may be rebutted by evidence of facts which clearly rebut the presumption. The evidence of rebuttal no more trenches upon the statute of frauds than the evidence of revocation. In both cases the evidence is by parol, but offered not to prove declarations, but facts.
We have reverted to the common law doctrine of revocation from marriage, and the birth of children, in order to show the state of the law when the statute was passed. The language of the statute is, "no devise, c., shall be revocable otherwise than by marriage of the testator, subsequent *Page 373 to the date thereof, or by some other will or codicil in writing, or other writing declaring the same, or by burning, cancelling,c."
We think the true meaning of this clause is, that the acts and instruments therein specified, shall be competent to revoke a will, not that they shall absolutely have that effect. That will depend on the circumstances.
In Campbell v. French, 3 Vesey, 321, the testator by his will gave legacies to A. and B. He revoked these legacies, giving as a reason, that the legatees were dead. It turned out they were living. Held, the legacies were not revoked.
A cancelling is another mode of revocation recognized by the statute. If this be done under a mistake, or induced by fraud, it will be no revocation. The revocation in these modes is not absolute, but depends on the circumstances of each case.
So with regard to a revocation by marriage, we think it was intended by the statute to be subject to the effect of circumstances, showing a counter intent in the testator. It can hardly be supposed the General Assembly intended to give to marriage alone a greater effect than marriage and the birth of children had at common law.
Suppose the testator declares in his will that he makes it in contemplation of marriage, and intends it to stand, notwithstanding his marriage; or, suppose there are acts of the testator which show such intent as clearly as if expressed in his will, ought such a will, under such circumstances, to be revoked? We think not.
Our conclusion is, that a revocation by marriage under our statute is presumptive only, not absolute; and that evidence of the acts of the testator, and circumstances *Page 374 showing clearly an intent that the will should stand, ought to be admitted.
The last clause in the section, declares that all devises of lands shall remain in full force until the same be burned, c., or unless the same be altered, c. This seems to exclude all revocations, except in the mode therein provided, and therein to be inconsistent with the first clause.
Taking the whole section together, we think the construction we have given to be the true one.
It then remains to inquire, whether the facts and circumstances in proof, show an intent in the testator that his will should stand.
The counsel for the devisees offered evidence of the private declarations of the testator, to the effect, that he intended his will should stand, notwithstanding his marriage, and that this was fully intended and agreed upon between the testator and his intended wife. This evidence was admitted by consent de beneesse, subject to the opinion of the court as to its competency.
We are of opinion it is incompetent for the purpose for which it was offered. The presumption created by marriage can only be rebutted by evidence of a similar character, that is, of acts and circumstances, not parol declarations. These last are incompetent evidence to prove a revocation, or to rebut one. They could not be admitted for either purpose, without trenching upon the statute of frauds.* *Page 375
The counsel for the devisees contended further, that these declarations were admissible as to a will of personal estate, and the widow being interested in the personal only, the rule as to personal applies. But the fourth section of the statute, (Digest, 1844, p. 232,) provides that wills of personal estate shall not be valid unless executed in the manner prescribed for wills of real estate, and shall not be revoked except in the manner prescribed for the revocation of wills of real estate.
Excluding from the case, therefore, the parol declarations of the testator, we will consider such facts and circumstances in proof as we deem competent.
First. The testator at the time he made his will, had children by a former marriage, to whom he gave his estate by his will.
Second. The deed of trust executed by the testator, and the deed of trust executed by the intended wife, both recite that a marriage was about to be had between the parties. He conveys all his real estate, and she releases all right of dower which she might have thereto. She conveys her real and personal estate, and he releases all claims which he might have thereto by virtue of the marriage.
There was no motive for the execution of these deeds, except the intended marriage.
This was on the 13th of April. The trustee of the testator's estate was to convey it to such purposes as he should by his last will appoint. On the same day the testator executed the present will, and destroyed an old one, the same in part. There was no motive for such destruction, except to make a will which should not be revoked by his contemplated marriage.
On the 15th of April, 1849, the marriage took place. *Page 376
These acts of the testator show clearly to our minds, that he intended his will should stand, notwithstanding his marriage. It is obvious that the deed of trust and the will were both executed in contemplation of marriage. To allow the marriage under such circumstances to revoke the will, would be to defeat the manifest intent of the testator to give his estate to his children, exclusive of any claim on the part of his wife.
A decree, therefore, should be entered approving the will.
* See Lord Kenyon's observations in Doe d. Lancashire v.Lancashire, 5 T.R. 49, and of the Lord Chancellor in Kennebel v. Scrafton, 5 Vesey, Jun. 664. On the contrary of this, see the opinion of Eyre, C.J., in Goodtitle v. Otway, 2 Henry Bl. 522; Lugg v. Lugg, Lord Raymond, 441; and Brady v.Cubitt, Dong. 31.