dissenting.
On the 27th of June, 1853, Lewis J. Deupree made his will, and, on the 8th of September, 1859, he made a codicil thereto. On the 24th of May, 1864, he married Lucy Y. Peebles. Prior to said marriage, an ante-nuptial contract was made between the parties, securing to his intended wife all the property she then had, and settling upon her the sum of $10,000; in consideration of which, it was covenanted and agreed that the will of said Deupree should stand, and that she would not caveat the same, and provided also that if any children should be born after said marriage that they should take an equal share under his will with his other children named therein. The will, codicil and deed of marriage settlement were all propounded for probate, as the last will and testament of the testator, to which the widow and children of Deupree by a former marriage filed their caveat on the ground that the original will and codicil were revoked by the subsequent marriage of the testator, and that the paper offered as a testamentary paper, dated the 24th of May, 1864, was not attested and subscribed by the witnesses thereto in the presence of the testator, and therefore could not operate as a will. On the trial of the case, the jury found a verdict in favor of the caveators, and that Deupree died intestate. Exceptions were taken to the rulings and charge of the Court; upon several grounds, which are assigned as error here: First, the refusal of the Court to continue the case. Second, that one of the interrogatories put to the witness Dorah Atkinson was not fully answered. Third, that Mrs. Deupree was not a competent witness. Fourth, that the Court erred in charging the jury as to the legal effect of the attestation clause to the paper dated the 24th of May, 1864, and in the general charge as to the law in regard to the revocation of the testator’s will.
The motion for continuance was properly overruled by‘the Court. The witnesses did not reside in the county in which *452the trial was had, and, under the general law of the State, were not compelled to attend the Court in another county. If the propounders of the will had desired to attach the original will of the testator to interrogatories to be exhibited to the witnesses, the Court, on a proper showing, would have granted an order for that purpose, as is the usual practice of the Courts, when it becomes necessary to prove the factum of a deed, or other instrument, filing a copy thereof in the Clerk’s office: Code, sections 3748, 3471, 2394, 3821, 3480. The interrogatory put to Mrs. Dorah Atkinson was substantially answered by her: Mott vs. Hall, Maer & Company, 41 Georgia Reports, 117. Mrs. Deupree was a competent witness : Brown and wife vs. Carroll, 36 Georgia Reports, 568. The law requires that a will should be attested and subscribed by at least three witnesses, in the presence of the testator, and the question made on the trial was, whether the paper writing, dated 24th May, 1864, propounded as a will, had been attested and subscribed by the witnesses, in the presence of the testator, so as to make it a valid will. The attestation clause to the paper recited that it was signed, sealed and delivered in the presence of the three witnesses, but did not recite that it was attested and subscribed by them in the presence of the testator. If the attestation clause had so recited, then the legal presumption would have been that it was attested and subscribed by the witnesses, in the presence of the testator, in the absence of any evidence to the contrary thereof. The point in the case was not whether the testator signed, sealed and delivered the paper in the presence of the witnesses, but did the three witnesses attest and subscribe the same in the presence of the testator; the attestation clause does not recite that they did, and, therefore, the attestation clause furnishes no legal presumption as to that fact, and there was no error in the charge of the Court, in relation to that point in the case, of which the propounders of the paper have any legal right to complain. The attestation clause does not recite that the witnesses attested and subscribed the paper in the presence *453of the testator, so as to raise the legal presumption therefrom that they did, which was the material fact to be established, either by presumption or affirmative evidence. The evidence in the record upon that point in the case fully sustains the verdict and rebuts the legal presumption contended for, if there had been any foundation for it in the attestation clause, as claimed by the propounders of the paper. The evidence in the record upon that point in the case was such as to require the verdict which the jury found, setting aside the paper writing propounded as á will, dated 24th May, 1864. That paper being out of the way as a will, the next question to be considered is, whether L. J. Deupree died intestate, according to the laws of this State; in other words, whether his will, made prior to his marriage, was revolted. There is no provision made in the will of the testator in contemplation of such an event. The 2441st section of the Code declares, that, “in all cases, the marriage of the testator, or the birth of a child to him, subsequent to the making of a will, in which no provision is made in contemplation of such an event, shall be a revocation of the will.”
But it is said that it was not the intention of the testator in this case to revoke his will; that is undoubtedly so, and the question is, which is to control the intention of the testator or the public law of the State f There can be no doubt as to the plain meaning and intent of the law, and when the intention of the testator is in conflict with the law, that intention must yield to the stern mandate of the law. The 2437th and 2438th sections of the Code relate to the acts of the testator himself, and as to what was his intention in the performance of those acts in regard to the 1’evocation of his will- The acts of a testator in regard to the revocation of his will and what was his intention in the performance of those acts is one thing; the declared will of the supreme power of the State as to what shall constitute the revocation of a testator’s will, is another and quite a different thing— the one is controlled by the testator’s intention, the other is *454controlled by the law of the State without any regard to the testator’s intention. The intention of testators cannot override the law or repeal it.
In this case there are no children born subsequent to the marriage, and the widow is estopped by her ante-nuptial contract from claiming any part of the testator’s estate in the event of a revocation of the will, but that does not alter the law. The children of the testator, born before making the will, his heirs, are not estopped from claiming the benefit of the law, and are now before the Court demanding its judgment, that an intestacy shall be declared in their favor, on the ground that the testator married after making his will, in which no provision is made in contemplation of such an event. The law is in their favor, and they are entitled to have it administered by the Courts and an intestacy declared in obedience to the requirements of that law: Holliman et al. vs. Copeland and wife, 10th Georgia Reports, 79. The law, as prescribed by the 2441st section of the Code in relation to the revocation of a testator’s will, is a public law of the State, an universal rule that regulates the conduct of the whole community, including the testator as well as all other persons. It declared to him in plain, explicit terms, that if he made a will in which no provision was made, in contemplation of the event of a subsequent marriage, and after the making of such will, he should marry, that such marriage should be a revocation of his will. The testator could not alter or change this rule of law by his compact or agreement. “ The language of a compact is, I will or will not do this; that of a law is, thou shall or shall not do it:" 1 Bl. Com., 45. The design and object of all laws is to ascertain what is just, honorable and expedient, and when that is discovered by the law-making power, it is proclaimed as a general rule of conduct, equally binding and impartial to all. The Judges of the Courts are not “ chartered libertines,” to defeat and destroy the effect of a plain constitutional law by construction to suit their notions of expediency ; their duty *455is to administer and enforce it, when its terms and meaning are clear and explicit.
The real question in this case is between the children of the testator by a former marriage, legatees under the will, who are caveators, and the propounders of the will. They allege that the will was revoked by the marriage of the testator subsequent to the making of the will, in which no provision was made in contemplation of such an event, and pray that an intestacy may be declared by the judgment of the Court. Have they the legal right to have the will of the testator revoked and an intestacy declared in their favor, under the public law of the State? That the will was made by the testator before his marriage with Mrs. Peebles is an undisputed fact; that no provision is made in that will in contemplation of such an event is also an undeniable fact. What is the law applicable to this statement of facts? The Code declares that, “In all cases, the marriage of the testator subsequent to the making of a will in which no provision is made in contemplation of such an event, shall be a revocation of the will.” But it is said this law was not intended for their benefit, but for the benefit of the wife, and children born of the second marriage. The reply is, that the law is general in its terms, and declares M'hat shall be a revocation of a testator’s will, and if the will is revoked by the commandment of the law, the children who are the legatees of the testator under that will may claim the benefit of that law if it is their interest to do so. It was the intention of the General Assembly in the enactment of the law to establish a fixed and definite rule in regard to the revocation of wills in case of marriage or the birth of a child subsequent to the making of a will by the testator, so as to avoid all future controversy in relation to that question.
The decisions of the Courts in England, and in this country, were conflicting as to the proper construction of the common law rule in relation to the revocation of wills by the subsequent marriage of the testator and birth of children. *456That was the mischief which the Act of 1834, substantially embodied in the Code, was intended to remedy, and it is the duty of the Courts to enforce it so as to suppress the mischief and advance the remedy, and not to perpetuate the mischief by going behind the Act to find the proper rule of construction in such cases, when the Act plainly declares what the rule shall be.
The law does not interfere with the right of a testator to dispose of his property by will — it simply declares to him, that if he marries after making his will, in which no provision is made in contemplation of such an event, that will shall he revolted, and he must make another if he desires to dispose of his property by will.. In other words, he must regulate his conduct in obedience to the public law of the State in relation to that matter.
The law, as prescribed by the Supreme power of the State, was a rule of conduct for this testator as well as all others, and he could not defeat its general operation by his compact or agreement, whatever may have been his intention. In my judgment, the children of the testator by his former marriage, his heirs, have the clear, undoubted legal right, under the public law of the State, to have the judgment of the Court in favor of a revocation of the testator’s will, and that he died intestate, under the statement of facts disclosed in the record, and that the judgment of the Court below should be affirmed.
Judgment affirmed.