concurring.
Concurring, as I do, in the opinion of the Court, as deliverred by Justice McCay, except upon one point, I only deem it necessary to give the reasons for my dissent on that, contenting myself with a general approval of his opinion upon the remaining points in the case.
1. After much fluctuation in the English Courts, the rule, as finally settled, applicable to all wills made prior to 1838, (when the Statute of Wills was passed,) may be thus stated: The law attaches a tacit condition to all wills, that if the testator marry and have issue born of the marriage, subsequent to the making of his will, the will is revoked, unless provision is made in the will, or otherwise, for such issue, and if he devise only a portion of his estate, the condition does not attach. The following authorities, I think, establish the rule as above laid down: Ex parte Earl of Ilchester, 7 Vesey, jr., 348; Havens vs. Van Denburgh, 1 Denio, 27; Kenebal vs. Scrafton, 2 East., 530; 1 Redfield on Wills, 294-5; Brady vs. Cubit, 1 Doug., 31; Marston vs. Fox, 8 Adolph. and Ellis, 14; (35 E. C. L. R., 326;) see Brush vs. Wilkins, 4 Johns., 507. It will be seen, by reference to the foregoing authorities, that unless the whole property of the testator is devised, the will is not revoked; that if provision is made for future issue by marriage settlement, the will stands; that the tacit condition does not operate, unless he “leaves no provision for any child of the marriage,” in the language of the Court, in Marston vs. Fox. Not that he must leave such provision in the will — an examination of the context shews that the Court means, that where property is not embraced in the will, out of which a suitable provision exists for the future issue, then, no revocation. A careful examination of this case of Marston vs. Fox, on which the defendants in error mainly rest their case, shews that the Court was very guarded in laying down the rule, so as not to overrule any preceding cases, except those which rested solely on the prin*446ciple enunciated by Lord Mansfield, in Brady vs. Cubit, that revocation or not, by subsequent marriage and issue, was a question of intention on the part of the testator, and might be rebutted by evidence. In the case, then, before the Court, parol evidence was sought to be introduced for that purpose; and this was rejected on an additional principle, to-wit: that to admit it for the purpose of establishing the will, necessarily involved its admission in rebuttal; and if admitted in rebuttal, it could be admitted in chief, and this would be contrary to the Statute of Frauds. The Chief Justice, in delivering the opinion of the Court, says, “It is a question whether such revocation shall be allowed to depend upon evidence of intention — that is, upon evidence of which parol declarations of testator may confessedly form a part, whilst the Statute of Frauds has anxiously and carefully excluded evidence of that nature, with respect both to the original making and the revoking of wills of land.” See argument of Sir W. W. Fol-let, in Marston vs. Fox.
The revocation in Marston vs. Fox was placed upon the ground that there was no provision for the after-born child, either in the will or out of it. It may be added, that in Sheath vs. York, 1 Vesey & Beam, 390-1, it is decided that the revocation must inure to the benefit of the after-born child , otherwise, the will must stand. If this be law unrepealed, it applies to the present case, and would prevent the revocation. I, however, doubt the correctness of the decision, even at common law. If the principle be true, the death of the child, whose birth revoked the will in the life-time of the testator, would operate as a republication. If, then, the common law be as I have stated it, to-wit: that the will is not revoked when the after-born issue is provided for, either in the will or out of it, the next question for consideration is, to what extent have our statutes modified the common law ?
2. The only Act of the Legislature of Georgia upon this subject prior to the Code, is the Act of December 19th, 1834. *447This Act grew out of the contest in Richmond county, shortly before its passage, over the will of one Cormick, who made a will and afterwards married and had issue. The propounders and caveators were represented respectively by John Forsyth and Richard H. Wilde, both lawyers of high reputation. Both counsel conceded that the issue was one solely of intention. The idea that a tacit condition of revocation was annexed to the will by operation of law, under the facts, seems not to have occurred to either counsel as being the law of Georgia at that time. It will be remembered that the case of Marston and Fox was not decided until 1844 — tenor twelve years after. Cormick’s will was set aside. The result of the case, then, could have furnished to the Legislature no reason for altering the law from a presumption of intention to revoke to one of tacit condition of revocation. And I am informed by a gentleman of high position at the bar, who heard the case tried and is familiar with the history of the Act, that the sole object of its framers was to alter the common law to the extent of making marriage or birth a presumptive revocation, where there was no provision for the future wife or child, and to this extent only. Be this as it may, keeping in view the old law, the mischief and the remedy, and looking to the reason and spirit of the statute, it seems to me to alter the common law in but three particulars: 1st. By making marriage or birth of issue a revocation, unless the after-married wife or after-born children are provided for. It is immaterial, for the purposes of the present case, whether this revocation was by tacit condition or presumptive intention. 2d. A fair construction of the Act would seem to require a revocation, even where the will disposed of only a part of the testator’s estate. 3d. The marriage or birth did not of itself revoke the will, but the Court of Ordinary was required to pass an order declaring an intestacy. It is true, the words of the Act require the provision to be made in the will. I will consider that in its order. It is said that the mischief intended to be remedied by the Act of 1834 *448was the conflict between the decisions of the Courts, both in England and this country, in interpreting the common law rule. Was not the mischief, rather, the unprovided condition of the subsequently married wife or after-born child, which condition presented a strong, equitable claim on their behalf for the protection of the law ? There was no conflict of opinion as to whether it required both marriage and birth of a child to Revoke a will, before the Act.
3. This Act remained in force until the adoption of the Code, when, as seemed to be conceded by counsel, it was superseded by section 2441, which makes subsequent marriage or birth a revocation, unless the will contain a provision in contemplation of such an event. But, so far as the issues involved in the present case are concerned, does not alter the Act of 1834. It is not by any means clear to my mind that this section, taken in connection with section 2438, does not indicate an intention on the part of the codifiers to adopt Lord Mansfield’s rule of presumptive intention, and not that of tacit condition. Concede, however, that section 2441 adopts the rule as laid down in Marston and Fox, does it follow that the provision for the subsequent wife or child must appear in the will? The words of the section, taken literally, seem to require it. But is it a sound rule of construction to adhere so closely in litera, and entirely ignore the reason and spirit of the Act? Would any one hold that a will in execution of a power is revoked by subsequent marriage or birth under the section? And yet the words of the section make no exception. A will of a woman was revoked by her marriage, at common law, absolutely, without reference to provision in contemplation of the event; and yet a will made by her in execution of a power was not so revoked. Suppose the strict construction so insisted on by counsel for defendants in error had been applied to the Statute of Frauds, what would have become of the rule on which their whole case rests ? The sixth section of that Act provides, “ no devise in writing, of lands, tenements or hereditaments, or any *449clause thereof, shall at any time be revocable otherwise than by some other will or codicil, in writing, or other writing declaring the same, by burning, cancelling, tearing or obliterating the same by the testator himself, or in his presence and by his directions and consent; but all devises and bequests of lands and tenements shall remain and continue in force until the same be burnt, cancelled, torn or obliterated by the testator, or his direction, in manner aforesaid, or unless the same be altered by some other will or codicil, in writing, or other writing of the devisor, signed in the presence of three or four witnesses, declaring the same, any former law or usage to the contrary notwithstanding.” This section not only points out the specific modes in which a will may be revoked, (among which subsequent marriage and birth of issue are not mentioned) but declares that all wills “ shall remain and continue in force” until revoked as therein pointed out, and yet the Courts have held, in the teeth of the words of this statute, that marriage and birth of issue revoke a will. Is it not safe to adhere to a uniform rule of construction in interpreting statutes m pari materia? Can any reason be given why the provision for the future wife and child should appear in the will? Counsel have failed to point out any, other than such is the letter of the statute. They have shown good reasons why the rule, as laid down in Marston and Fox, should be preferred to that of Lord Mansfield. And without being altogether satisfied that our Legislature did not intend to adopt Lord Mansfield’s rule, I have assumed that our law annexes a tacit condition of revocation to a will on subsequent marriage of, or birth of issue to the testator, where the future wife or child is not provided for. But I have failed to perceive that our law, unlike the common law rule, requires the provision to be made in the will, and only there. Again, Code, 1767, requires all marriage settlements to be liberally construed to give effect to the intention of the parties. If we hold this will revoked, we render of none effect the provision made in the settlement for *450the after-born children, for that depends on the validity of the will. So that we destroy a provision made for after-born children by a rigid and literal construction of an Act which was intended to secure provision for them. This anomaly should be avoided if possible. The fact that no after-born children sprang from the marriage under consideration, cannot alter the principle. Suppose instead of owning the property, the testator had had a life-interest, with power of disposition by will, and remainder in the children by his first marriage, if he died without exercising the power. Having made his will, and then by marriage settlement provided for his subsequently married wife, and opened the will in favor of the possible issue of the last marriage, so as to put them upon an equal footing with his other children under the will, he might well have reposed in the belief that he had fully provided for all his children, had issue sprung from the last-marriage. And yet, the construction now put upon the Act would, in the case supposed, defeat the plain and obvious intention of the Legislature, and so distort the statute as to deprive those of the benefit of it for whose sole advantage it was passed. Nay, more, the statute becomes a sword to pierce instead of a shield to protect.
4. Hence, I dissent from the views of the majority of the Court on this point, and believe a provision by marriage settlement for the future wife and after-born children is a compliance with the condition annexed by law to the making of a will, and prevents revocation.
5. That presumption of proper execution of a will arises from the signature of the testator, and the fact of attestation by the witnesses, without reference to what may be recited in the attestation clause, where the witnesses do not distinctly remember, see Hand vs. James, 2 Comyn, 531; Croft vs. Poullet, 2 Strange, 1109; Boyse vs. Smith, 1 Willis, 1; 10 Leigh (Virginia Reports), 22; Redfield on Wills, 238, note.