Sutton v. Hancock

• Court: Georgia Supreme Court
• Writing for the Court: COBB, J.
• Citation: Sutton v. Hancock, 115 Ga. 857, 42 S.E. 214 (Ga. 1902)
• Decision Date: 18 July 1902
• Parties: SUTTON et al. v. HANCOCK.

42 S.E. 214

115 Ga. 857

SUTTON et al. v. HANCOCK.

Supreme Court of Georgia

July 18, 1902

Syllabus by the Court.

1. A testator having children at the date of his will gave to his wife in fee simple all of his property, real and personal stating in the will that this disposition of his property was made because he knew his wife would protect his name by the prompt payment of his debts, "and that she will take every care of our children, and do what is just and right by each of them." Subsequently to the execution of the will, a child was born to the testator and his wife. Held, that the birth of the child revoked the will there being therein no provision "made in contemplation of such event."

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action between Maud Sutton and others and L. M. Hancock, executrix. From the judgment, Sutton and others bring error. Reversed.

Spencer R. Atkinson and J. A. Perry, for plaintiffs in error.

Anderson Anderson & Thomas and W. O. Wilson, for defendant in error.

COBB J.

On June 19, 1890, Joseph Smith made a will in which he provided, among other things, as follows: "I give, bequeath, and devise to my beloved wife, Lilly May Smith, all my estate, real and personal, in possession, reversion, or remainder, to be hers in fee simple forever, knowing full well that she will protect my name by the prompt payment of my just debts, and that she will take every care of our children, and do what is just and right by each of them. I therefore name her as well my sole executrix as my sole devisee and legatee." On January 6, 1886, the testator added a codicil to this will, relieving his wife of the necessity of giving bond and making returns, and empowering her to sell, in any way she saw proper, any or all of the property devised, giving her as complete control over the property as the testator had while in life. At the time the will was made, the testator had several children then in life. Long after the execution of the will and the codicil thereto, but before the death of the testator, another child was born to the testator and his wife, who was in life at the date of the testator's death, which occurred on October 5, 1890. The only question involved in the present case is whether the birth of this child had the effect of revoking the will.

Under the common law, neither the subsequent marriage alone of a testator, nor the subsequent birth of a child to him, operated as a revocation of a will previously made by him; but both of these events combined did have such effect. 1 Jarm. Wills, 271; 1 Underhill, Wills, § 239; Page, Wills, §§ 282, 283, 287; Pritch. Wills, § 292. The Roman law did, however, provide that the subsequent birth of a child should alone operate as a revocation of a will. 1 Underhill, Wills, § 240. The common law was of force in Georgia until 1834, when an act was passed which provided that, "in all cases when a person after having made a will, shall marry or have born a child or children, and no provision shall be made in said will for the wife after married, or child or children after born, and shall depart this life without revoking said will, or altering it subsequent to said after marriage, or subsequent to the birth of said after-born child or children, the justices of the inferior court of the county, while sitting as a court of ordinary, having jurisdiction of the case, shall pass an order declaring that such person died intestate, and his estate shall be distributed under the laws of this state regulating the distribution of intestates' estates." Prince's Dig. 254; Cobb's Dig. 347. This act remained of force until the adoption of the Code of 1863, in which was incorporated the following provision: "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." Code 1863, § 2445. This statute has, without any alteration whatever, been the law of this state from the Code of 1863 to the present time. See Civ. Code,§ 3347. It is important to ascertain what was the proper construction to be placed upon the act of 1834, and what change was intended to be made by the Code section above quoted. The act of 1834 required the testator to make some positive, beneficial provision for an after-born child. So, in Holloman v. Copeland, 10 Ga. 79, it was ruled that where "no positive provision" was made for an unborn child, "the testator must be considered as having died intestate, notwithstanding such after-born child might be entitled to some portion of the testator's estate under the will, on the happening of certain contingencies mentioned therein, under the general description of 'children."' Judge Warner in the opinion said: "The statute contemplates the present or probable existence of the after-born child in the mind of the testator when he makes his will, and thereby makes a positive provision for such child." It will thus be seen that under the act of 1834, unless the testator, at the time of making his will, had in mind the probable or possible birth of a child to him in the future, and unless, having this in mind, he made some positive beneficial provision for the child, the will would be revoked by the birth of a child to him subsequently to the execution of the will. The Code changed this law so as to omit altogether the requirement that the testator should make at all events a positive provision for the child to be born, and it did not even require that the testator should have had in mind the child that would be born. The requirement of the Code is that provision shall be made in contemplation of the event.

What is the meaning and object of this provision? We quote the following from the opinion of Mr. Chief Justice Bleckley in Ellis v. Darden, 86 Ga. 371, 12 S.E. 652, 11 L.R.A 51, where it was ruled that the marriage of a woman revoked a will made by her in which no provision was made in contemplation of that event: "At common law the woman's will was revoked, but the man's was not. The act of 1834 put a man's will, in this respect, upon the footing of a woman's, with an implied saving in favor of wills in which provision was made for the prospective wife. It also made the birth of a child operate as a revocation of any prior will in which the child was not provided for. Then came the Code of 1863, and, after varying the phraseology of the act of 1834 so as to make it wider and more general, incorporated its principle of revocation into the legal system of wills, with an implied saving in favor of wills in which, not the wife or the child, but the event of marriage, or the birth of a child, was provided for." The learned chief justice further said, in referring to the Code: "The object of the provision is to secure a specific moral influence upon the testamentary act, the moral influence of having before the mind a contingent event so momentous as marriage or the birth of a child, and so deserving of consideration in framing a testamentary scheme." When, therefore, a person has made a will in this state, and thereafter marries, or has a child born to him, the will stands revoked upon the happening of either contingency, unless it appears that when the will was executed the testator had in contemplation the event of marriage or the birth of a child. And the evidence that the testator did have the event in contemplation must be in the will itself, taken in connection with the circumstances which existed at the time the will was executed, and this can be shown only by means of a provision in the will which appears to have been made in contemplation of the event. There can be no question that this is the plain meaning of the statute. It makes the subsequent birth of a child operate as a revocation of a will, with the sole exception that a revocation will not result when "provision is made in the will in contemplation of such event." Hence it was held in Ellis v. Darden, supra, that parol evidence was inadmissible to show that a will was executed in contemplation of marriage. The question whether the testator had in contemplation the event which subsequently took place is a matter of legal inference, or...