Jessie A. Dunlop, a resident of this State, duly executed her will. Subsequently, in Canada, she entered into an
Her will was presented for probate, and probate was refused on the ground of her subsequent marriage. From the refusal an appeal is taken. The question involved is understood to have been decided by this court. As the case is not reported, we state briefly our views.
The statute is plain and peremptory. Such a will “shall be deemed revoked.” 2 R. S. 64, § 39. The appellants urge that, as the expression is not “revoked,” but “deemed to be revoked,” it should be construed to mean only a presumptive revocation, open to explanation. We think not.
The language is accurate. Revocation is an act done by the party, by which he recalls his will. The statute, therefore, with propriety, says, not that the marriage revokes, but that it is to be deemed or considered the same as a revocation. It is not a revocation, but it has the effect of a revocation. The statute does not say that marriage shall be deemed a presumptive revocation, but positively it shall be deemed a revocation. The language is positive. •
And it is well to have a definite rule on such a point, and not to leave the matter open to the guesses of courts, whether in each particular case the person intended or did not intend to leave her will in force. The reason of the law is plain; that marriage produces such new relationship that a will made before marriage will not, as a general rule, express the wishes of the woman after her marriage.
We see nothing in the so-called married woman’s acts which should modify this statute. The fact that a married woman now has power to make a will does not affect the reason of the law, whidh is mentioned above. To illustrate this, the previous sections of the statute declare that in certain.cases the marriage of a man and birth of children shall be deemed a revocation of his will.
This is not because he had not the testamentary power, but because, as a general rule, the change of circumstances prevents his will, made previously, from expressing his wishes.
The same may be said as to the ante-nuptial agreement. In
As the marriage, according to the appellant’s views, is to be presumed to be a revocation, and as that is the last act of the deceased affecting this subject, there is nothing to overthrow the presump, tion.
The decree should be affirmed, with costs against the appellant.
Decree affirmed.