In Ohio, Indiana, Illinois, and Connecticut, the birth of a child avoids the will in toto.[239]
By the statute laws of Maine, Vermont, New Hampshire, Massachusetts, New York, New Jersey, Pennsylvania, Delaware, and California, children born after the making of the will inherit as if the parent died intestate, unless the will comprises some provision for them, or they are particularly referred to in it. The will is thus revoked pro tanto.[240]
In Virginia and Kentucky, the birth of a child after the will, if there were none previously, revokes the will, unless the child dies unmarried or an infant.[241]
The statute law of some States goes further, and entitles not only children but their issue to claim portion of testator’s estate, if such children were unprovided for, and unmentioned in the will. This is the case in the California code,[242] and in Maine, New Hampshire,[243] Rhode Island, and Massachusetts.
By the New York revised statutes, if a will disposes of the whole estate, marriage and the birth of a child revoke the will, if either the wife or child survive the testator.[244] Parol evidence is not admissible to rebut this presumption. Wherever the question has arisen, it has generally been held, even in the States where by statute children omitted in the will of the parent are entitled to the same share of his estate as if he had died intestate, that marriage and the birth of issue, after the making of a will, do amount to an implied revocation of the will.[245]
In many of the States, marriage alone, after making the will, amounts to a revocation. In Virginia, it is revoked by marriage;[246] also, in West Virginia; so in California, unless a provision be made for the wife.[247] In others, it only revokes the will pro tanto, as in Pennsylvania and Delaware.[248] In the State of Illinois, where the husband and wife are made heirs to each other, marriage by the testator after making his will, wherein no provision in contemplation of such new relation exists, amounts to a revocation.[249] The marriage of a woman after making her will, will produce a revocation in general. It is so in New York and California;[250] and in California it is not revived by death of the husband. This provision is in harmony with the early cases in England.[251]
It must not be inferred from the previous statement that a testator has no power to disinherit or cut off a child. The law does not withhold this power; it only presumes, by the omission to mention the name of a child in a will, that the claim of that child was overlooked by the testator, and the court, exercising its equitable power, interferes on behalf of such child to see it gets its due share of the property. But where the intention is expressed, and much more so where a reason is given, for cutting off a child from a participation in a testator’s property, the courts cannot interfere in behalf of such disinherited child, unless on some imputation of insanity or undue influence.
Another, and a more usual mode in which a will may be revoked, is by an express deliberate act of the testator. This may be done by a subsequent testamentary document, or by some physical destruction or cancelation of the will. A very common phrase used in a will is: “And I hereby revoke all former and other wills and testamentary dispositions by me at any time heretofore made.” However, the insertion of a clause like this is not of much importance, as a will professing to dispose of the whole of a testator’s property necessarily displaces and supersedes all antecedent testamentary instruments.[252] Such a clause might be useful in those instances in which the intention to dispose of the entire estate was not so clearly manifested as to preclude attempts to adopt, wholly or partially, the contents of former wills as part of the testator’s disposition; since a will may be composed of several papers of different dates, each professing to be such when they are capable of standing together.[253]
Mere proof of the execution of a subsequent will, therefore, is not sufficient to invalidate a prior will. There must be proof of a clause of revocation, or there must be plainly contrary or inconsistent provisions.[254] And where the contents of the last will cannot be ascertained, it is not a revocation of the former will. This was decided by the Court of King’s Bench in England, more than one hundred and fifty years ago, in the case of Hutchins v. Bassett;[255] and that decision was subsequently affirmed upon a writ of error in the House of Lords. In the subsequent case of Harwood v. Goodright,[256] which came before the Court of King’s Bench in 1774, it was held that a former will was not revoked by a subsequent one, the contents of which could not be ascertained; although it was found by a special verdict that the disposition which the testator made of his property by the last will was different from that made by the first will, but in what particulars the jurors could not ascertain. This case also was carried to the House of Lords upon a writ of error, and the judgment was affirmed. As these two decisions of the court of dernier resort in England were previous to the Revolution, they conclusively settle the law on this subject here.[257]
Again, where there are several codicils or other testamentary papers of different dates, it is a question of intention upon all the circumstances of the case, which and how far either is a revocation of another, or whether the dispositions of the latter are to be considered as additional and cumulative to those of the prior. Parol evidence, however, is not to be admitted in order to investigate the animus with which the act was done, unless there is such doubt and ambiguity, on the face of the papers, as requires the aid of extrinsic evidence to explain it.[258]