The Curiosities and Law of Wills

by John Proffatt

CHAPTER VI.

Revocation of Wills.

It is one of the well-understood qualities of a will, at the present time, that it is revocable during the testator’s lifetime. It was shown, in a former part of this work, that this quality did not in early times attach to a will; that a will, at first, was in the nature of an executed contract; a conveyance, in fact, and irrevocable.[231] However, as a will has no effect until death, it necessarily follows that a person has full control of the subject-matter, and can change his mind as he pleases regarding its disposition so long as he lives. This is now accepted as a postulate in the law of wills.[232] The only inquiry, therefore, will be as to what acts or occurrences shall be deemed sufficient to revoke a will previously made.

There are two modes in which a will may be revoked: First, it may be revoked by the happening of some events subsequent to the making as, in the judgment of law, will amount to a revocation. We may term this an implied revocation. Secondly, it may be revoked by a certain deliberate act of the maker, intending to cancel a previous will, or with animo revocandi, as the legal phrase is.

The events which would operate to produce an implied revocation of a will were formerly a subject of wide and constant discussion. The courts in England, and until lately in this country, occupied themselves very frequently in discussing this subject of implied revocation, and, for a long time, there was no general agreement on the precise events that would, in the judgment of law, amount to a revocation. At an early period in the English law, it was determined that the marriage of a feme sole was sufficient to revoke a will made by her previous to her marriage. It was expressed thus, in the quaint language of the time: “It was adjudged, on great deliberation, that the taking of a husband, and the coverture at the time of her death, was a countermand of the will.”[233] This enunciation of the law has ever since prevailed as a principle in the law of wills. But a similar marriage in the case of a man did not have the same effect. The courts were at first not agreed as to whether the birth of a child after the making of a will would be sufficient to effect a revocation. In one case, it was decided that this event alone did not amount to a revocation;[234] but in another case, where there were four children born subsequently to the making of the will, this, combined with other circumstances, was held to be a revocation.[235] It came to pass that the courts became finally agreed on the question that marriage, together with the birth of issue, was sufficient to effect a revocation of a will.[236]

In the application of this rule, cases of great hardship have sometimes occurred; but it has been steadily adhered to, even under circumstances in regard to real estate, at least; as where the testator left his wife enceinte without knowing it, as was the case in Doe v. Barford, above, where Lord Ellenborough held that the birth of a child alone, even under these circumstances, was not sufficient to revoke the will which was made after marriage. He said: “Marriage, indeed, and the having of children, where both these circumstances have occurred, has been deemed a presumptive revocation; but it has not been shown that either of them singly is sufficient. I remember a case some years ago of a sailor who made his will in favor of a woman with whom he cohabited, and afterwards went to the West Indies, and married a woman of considerable substance; and it was held, notwithstanding the hardship of the case, that the will swept away from the widow every shilling of the property, for the birth of a child must necessarily concur to constitute an implied revocation. In Doe v. Lancashire, 5 T. R. 49, it was adjudged that marriage and the pregnancy of the wife, with the knowledge of the husband, and the subsequent birth of a posthumous child, came within the rule, the same as if the child had been born during the parent’s life.”

This subject was elaborately examined by Chancellor Kent, in the case of Brush v. Wilkins,[237] where the authorities from the earliest times were quoted and examined, and the same conclusion reached.

This inquiry is not of much practical importance now, either here or in England, for statutory enactments have laid down the law precisely and satisfactorily as to what circumstances shall be deemed sufficient to produce the revocation of a will. And this is very desirable, since much uncertainty and discussion is thereby avoided, and the devolution of property exactly determined.[238] There is scarcely a State we know of where statutes have not been passed, setting the matter at rest, and fixing the law on the subject.

By the recent English statute, wills are held absolutely revoked by the subsequent marriage of the testator, whether made by a man or woman, unless such will be made in execution of certain powers; and it is further provided that no will shall be revoked, by any presumption of intention, on the ground of an alteration of circumstances.

In the statutes of the different States there is this difference: In some, the birth of a child after making a will, where such child is unprovided for, will work a revocation; while in others, it will only revoke it pro tanto, that is, so as to allow the child to have the same share as if the parent died intestate.