Gay v. Gay

• Decision Date: 22 March 1888
• Citation: 4 So. 42,84 Ala. 38
• Parties: GAY ET AL. v. GAY.
• Court: Alabama Supreme Court

4 So. 42

84 Ala. 38

GAY ET AL. v. GAY.

Supreme Court of Alabama

March 22, 1888

Appeal from probate court, Montgomery county; F. C. RANDOLPH, Judge.

Graves & Blakey and Thos. H. Watts, for appellants.

Shaver & Hutcheson, for appellee.

CLOPTON J.

Section 2282, Code 1876, (being section 1953, Code 1886,) provides "If, after making of any will, disposing of his whole estate, the testator marry, and have issue of such marriage born, either in his life-time or after his death, and the wife or such issue is living at the death of the testator such will must be deemed revoked, unless provision has been made for such issue by some gift or settlement; or unless such issue has been provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence can be received for the purpose of rebutting the presumption of such revocation." Julius B. Gay, being then a widower, made his will August 3, 1884, devising and bequeathing his real and personal property to his six children born of a deceased wife. In February, 1885, he married a second time, and a few days prior to this marriage he and his intended wife made an antenuptial contract, the nature and provisions of which will be considered hereafter. The testator died December 31, 1887 leaving his wife and one child born of this second marriage surviving him. The question presented is whether, on these facts, the will shall be deemed revoked. The case brings before the court for the first time the construction and effect of the statute. It should be construed in reference to the state of the law as it existed at the time of the formation and adoption of the statute. The established doctrine, which was borrowed by the English courts from the civil law, was that marriage and the birth of a child revoked a prior will, whether of real or personal estate, or both, where the entire estate was disposed of and no provision made for the wife and child by the will, or otherwise. As to the theory of the doctrine and the principle on which it rested, discrepant views were entertained, the result being conflicting inferences and conclusions in respect to the time the provision for the wife and child should be made in order to prevent a revocation. The temporal courts generally sustained the view that the revocation was the consequence of a rule of law, grounded on a tacit condition annexed to the execution of the will that an entire alteration of the state of circumstance under which the will was made, produced by subsequent marriage and birth of a child, should operate a revocation. On the other hand, the ecclesiastical courts maintained the view that the implied revocation was founded on the presumed intention of the testator to revoke his will, arising from the change of the state of circumstances under which it was made, and from the new social and moral duties resulting therefrom. Lord MANSFIELD sustained the rule upheld by the ecclesiastical courts,-a presumed alteration of intention,-which Chancellor KENT considered "the higher and firmer ground." 1 Kent, Comm. (12th Ed.) 524; Brady v. Cubitt, 1 Doug. 31. The present statutory provisions were first introduced into the Code of 1852, being section 1957. It is not a legislative affirmation in toto of the doctrine as it existed prior to and independent of the statute. By the statute the wife or the child must be living at the death of the testator, while by the common law the death of the child before the death of the testator did not revive a will revoked by marriage and the birth of the child. By the English law provision must be made for both wife and child, while the statute requires provision shall be made only for the child. In these respects the Alabama statute modifies the doctrine as established by both the temporal and ecclesiastical courts in England. It was framed and enacted in the light of the conflicting opinions held by these courts in regard to the principle on which the doctrine was grounded, and of the inconsistent and antagonistic results produced thereby. After having provided that marriage and birth of a child must be deemed a revocation of a prior will, if the wife or child is living at the death of the testator, unless provision has been made for the issue by gift or settlement, or in the will, or such issue is mentioned therein in such a way as to show an intention not to make such provision, the statute declares: "No other evidence can be received for the purpose of rebutting the presumption of such revocation." The effect is to declare the particular kind and character of evidence which shall be requisite to rebut the presumption of revocation, and to abrogate the rule sustained by some of the courts, that any evidence was admissible which showed a contrary intention. In respect to the statute of New York, of which our statute is a substantial copy, Chancellor KENT says: "This provision is a declaration of the law of New York as declared in Brush v. Wilkins, with the additional provision of prescribing the exact extent of the proof which is to rebut the presumption of revocation, and thereby relieving the courts from all difficulty on that embarrassing point." The law, as declared in the case referred to, was that the presumptive revocation may be rebutted by circumstances. Brush v. Wilkins, 4 Johns. Ch. 506; 1 Kent, Comm. 52. By clear implication the statute declares, as the law of this state, the rule maintained by the ecclesiastical courts, and approved by Lord MANSFIELD, which placed the doctrine of implied revocation on a presumed alteration of intention, arising from a change of circumstances, and from new relations and duties, with the modification that the presumption of revocation shall be conclusive,...