#### Gay *v.*Gay.

*Contested Probate of Will.*

1. *Revocation of will by marriage and birth of child.*— The implied revocation of a will by subsequent marriage and' birth of issue, under the statute of Alabama (Code of 1880, § 1953), is based on a presumed alteration of intention, arising from changed circumstances, new relations and duties; and the presumption is made conclusive, unless provision is made for the after-born child, or an intention not to make provision is shown in the will; but the presumption may be rebutted by a settlement providing for the child, made after as well as before the execution of the will.

2. *Same; provision for child by ante-nvptial contract.*— When provision for the after-born child is made by gift or settlement, the nature and extent thereof are left to the discretion of the testator as when made by will, except that it must not be so grossly inadequate as to be the equivalent of no provision; and an ante-nuptial contract, by which, in consideration of the marriage and the relinquishment by the wife of all interest in the estate of the husband and testator, real and personal property is conveyed to her, in trust to hold the same during life or widowhood, with remainder to the issue of the marriage living at his death, or at the time of her second marriage, and, on the death of such issue unmarried, then to the heirs at law of the testator, is *prima facie*a substantial provision for the after-born child, and rebuts the presumption of revocation.

Appeal from Montgomery Probate Court.

Heard before tbe Hon. E. C. Randolph.

Tbis was a contest of tbe probate of a paper purporting to be tbe last will and testament of Julius B. Gay, deceased, by Julius B. Gay, an infant child, represented by guardian *ad litem.*The grounds of contest, and tbe facts of tbe case, appear in tbe opinion. Tbe contest was sustained, and it was adjudged and decreed by the probate court that tbe will was revoked and void. Erom that decree tbe proponents appealed.

*39Grates & Blakey, and Thos H. Watts, for appellants.

1. The testator made a will and afterwards married, and had a child issue of the marriage. At the time of the marriage he made a contract with his wife, which provides for her and any child he might have by her. And the sole question is, whether the will was revoked. The will and the marriage contract are both set out in the bill of exceptions taken to the decision of the Probate Judge, who decided that the will was revoked by the marriage and the birth of a child. 2. The questions presented are first, what was the common law, on such a state of facts, and second, what is the law under the statutes of Alabama ? First, as to the common law, marriage and the birth of issue are commonly regarded as having the effect to revoke a will made before marriage. 1 Jarman, 272; see 1 Bedfield on Wills, 294, § 2. But even in England, independent of statute, the marriage and birth of a child will not operate as a revocation of' the will, when the father before making the will or contemporaneously with it, makes express provision, by a *separate*deed or instrument, for such issue. — See 1 Bedfield, 295, § 5, and note 11; 1 Jarman on Wills, 272, and note. And when the provision for the issue is made, after the will, it is proper it should be considered in giving a construction to the will, since the will, for most purposes, is regarded as speaking from the death of the testator. — 1. Bedfield, note 11, to p. 295; Earl of Ilchester, 7 Yes. 348; see, also, 1 Bedfield, 298, § 12; *Brush v. Wilkins,*4 Johns. Ch. 506; *Warner v. Beach,*4 Gray, 162. 3. But our statute regulates the matter, and by it Ave must be guided. Our statute (see Code of 1886, § 1953), declares, “If after making 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 his death, such will must be deemed revoked, unless *provision has been made for such issue by some gift or settlement,*” &c. In considering this matter we must not overlook the effect of section 1955 of the Code of 1886. — 1 Bedfield, 299, § 15. The New York statute on this subject is almost in the identical language of the Alabama statute. In *Havens v. Vandenburgh,*1 Denio, 27, it was held under the New York statute, that marriage and birth of issue operated as a revocation, unless provision was made either *in or outside of the will,*for such new relations. — See, also, 4 Bent Com. 527. Indiana has substantially the same statutory provisions as Alabama, except that *40tlie provision for the child must be made by *will.*— Hughes *v. Hughes,*87 Ind. 185. The Pennsylvania statute is like the-Alabama statute, except that the provision for the child to prevent the revocation must be in the *will.*— Walker *v. Hall,*34 Penn. St. 483. It is only revoked *pro tank).*It is not necessary that the child shall be named, *eo nomine.*It is sufficient if *provision*is made for *it.*— Block *v. Block,*3 Mo. 594. If the wife under the settlement have power to provide for the child — or the property is given to her, in trust that she shall provide for the child, this is a sufficient provision for the *child.*— Beck *v. MHz,*25 Mo. 70. 4. Now our statute declares that the will is not revoked by the subsequent marriage of testator, and the birth of issue if provision is made for such issue by *some*gift or *settlement.*It is not necessary then that provision should have been made in the will itself. It is sufficient if by *some gift or settlement*provision is made for the issue. The marriage *settlement*makes *provision*for the *issue of the marriage.*This is such *provision*for the *issue*as *prevents*the *marriage*and *birth of a child*from *revoking*the will. The will is only revoked *p>ro tanto.*The *will and*the *marriage*settlement constitute together the. last will and testament of the testator, and both must be treated together. The will then is not revoked as to the siibsequent child, By the express language of the statute, the will is not revoked. 5. So far as the widow is concerned the law makes ample provision for her. She can always protect herself by *dissenting*from the will of her husband. But the marriage contract provides for her, and for any child born of the marriage. But § 1955 of the Code of 1886 provides for tbe child. The child was born after the making of the will, and comes under the protection of this section. So that no hardship can result to the child or the wife by establishing the will. 6. But the fact must not be overlooked that the will does not *purport*to dispose of all the property of the testator. In order to make the marriage and issue thereof operate as a revocation of the will, is it not necessary that the *loill*itself shall show a disposition of the testator’s *'■'■whole*estate?” The *presumption*that a testator, when he makes a will, intends to dispose of his whole estate, and does not intend to die intestate as to any of it, can not, we respectfully submit, apply to the language of section 1953. There it is expressly stated, that, “if after making any will disposing of his whole estate,” &c. There is no room left for *presumption.*Section 1968 of *41tlie Code of 1886, and tlie interpretation given to it by numerous decisions, must not be overlooked: “Except in tbe cases provided for in tbe preceding article, a will in writing can only be revoked by burning,” &c. Tlien we submit, tbat unless- it appear from tbe will itself tbat the will disposes of tbe *whole*estate of tbe testator, tbe marriage and birth of issue do not revoke tbe will.

Shaver & Hutcheson, *contra.*

1. A will is deemed revoked by subsequent marriage and issue on tbe ground tbat sucb revocation is a *tacit condition*to tbat effect, annexed to tbe will at the *(tide*of its *execution.*• Hence a settlement providing for tbe issue made *after*the will does not rebut the presumption of its revocation. — 1 Jarman on Wills, (Randolph *&*Talcott’s Ed.), top page 277 and top page 288; *Israeli v. Roden,*2 Moore P. C. C. 51, *overruling*case of Earl of llchester, 7 Yesey, 348, and other cases; see note to page 277, 1 Jarman on Wills. 2. At common law, tbe revocation is not a question of intention, but a *conclusive presumption,*or *rule,*of law. — 3 Jarman on Wills, 783, note 19; 1 Jarman on Wills, 277, *et seq; Brush v. Wilkins,*4 Johnson’s Chan. 510, *et seq.;*Schouler on Wills, §§ 423, 426. Hence parol evidence is not admissible to rebut presumption of revocation. Our statute is declaratory of tbe common law. — Code of 1886, § 1953. 3. Where tbe authorities say tbat “any provision whatever for tbe issue will rebut presumption of revocation,” they will be found to refer to provisions in *Wills,*and not outside settlements. Settlements outside tbe wills must be fair, reasonable, and *in accordance with the principles and policy*of tbe *laio in such matters.*— 2 Kent’s Commentaries, 170; Schouler on Wills, 425; Schouler Domestic -Relations, 263. If this be true as to marriage settlements and in reference to tbe wife, who makes tbe contract, *.a fortiori*is it true as to *infants,*who are incapable of protecting themselves by contract. — 1 Williams on Executors, marg. p. 97. 4a. Tbe marriage settlement in this case makes no provision for tbe education or support of tbe issue during tbe life of tbe mother (widow of testator), which may last during tbe entire period of infancy, when tbe child most needs sucb provision. Tbe same legal duty resting on tbe father for tbe support of tbe child, does not, under tbe Alabama decisions, rest on tbe mother. ’ 6. It — the marriage settlement — only makes *contingent*provision for tbe child after tbe mother’s death, *in the event the mother survive the husband, c.*It is in consid*42eration of marriage (in itself a valuable consideration), and also,' in consideration of relinquishment of dower and all interest in personalty of the husband’s estate, *d.*The husband reserves to himself the use during his life of the property conveyed, free of charge, *e.*The property settled is wholly disproportionate to the considerations given by the wife, and wholly disproportionate to the husbands estate, the *testator’s*condition in life. 5. The law presumes that a man intends to be just to his offspring. The settlement is to be construed in the light of this presumption. — 1 Williams on Executors, marg. p. 97. 6. The will disposes of the whole of the testator’s estate. At the date of the will he owned property, exclusive of that specifically devised and bequeathed, not enough to pay legacies made in section 4 of the will. The fifty shares of Capital City Insurance stock conveyed in the settlement are specifically bequeathed in section 3 of the will. This is a revocation *pro tanto,*and tends to show (if it were a question of intention) an intention that the whole will be revoked. The settlement is introduced “to *rebut*the presumption• of *revocation.”*— Code of 1886, § 1953. So far from this, it *tends to shoio a revocation.*7. The statute, Code of 1886, § 1953, contemplates that the provision for the issue, in order to rebut the presumption of revocation, shall be made by the testator. The wife, “in the judgment of the law, is the purchaser” of the property which she acquires by ante-nuptial *contract.*— English *el al. v. Foxall,*2 Peters, top page 607. Hence the provision made for the, issue, in the settlement in this case, is not made by the *testator,*but by the *mother.*The mother *'purchased*the provisions ; she paid value for them.

OLOPTON, J.

Section 2282 of the Code of 1876 (being section 1953 of 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 lifetime 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 3d, 1884, devising and bequeathing *43Ms real and'personal property to bis six children born of. a deceased wife. In February, 1885, be married a second time, and a few days prior to tbis marriage, be and bis intended wife made an ante-nuptial contract, tbe nature and provisions of wbicb will be considered hereafter. Tbe testator died December 31st, 1887, leaving bis wife and one child born of tbis second marriage surviving him. Tbe question presented is, whether on these facts, tbe will shall be deemed revoked.

Tbe case brings before tbe court, for tbe first time, tbe construction and effect of tbe statute. It should be construed in reference to tbe state of tbe law as it existed at tbe time of tbe formation and adoption of tbe statute. Tbe established doctrine, wbicb was borrowed by tbe English courts from tbe civil law, was, that marriage and tbe birth of a child revoked a prior will, whether of real or personal estate, or both, where tbe entire estate was disposed of, and no provision made for tbe wife and child by tbe will, or otherwise. As to tbe theory of tbe doctrine and tbe principle on wbicb it rested, discrepant views were, entertained, the result being conflicting inferences and conclusions in respect to tbe time tbe provision for tbe wife and child should be made in order to prevent a revocation. The temporal courts generally sustained tbe view, that tbe revocation was tbe consequence of a rule of law, grounded on a tacit condition annexed to tbe execution of tbe will, that an entire alteration of tbe state of circumstances under wbicb tbe will was made, produced by subsequent marriage and birth of a child, should operate a revocation. On tbe other band, tbe ecclesiastical courts maintained tbe view, that tbe implied revocation was founded on tbe presumed intention of tbe testator to revoke bis will, arising from tbe change of tbe state of circumstances under wbicb it was made, and from •tbe new social and moral duties resulting therefrom. Lord Mansfield sustained tbe rule upheld by tbe ecclesiastical courts — a presumed alteration of intention — wbicb, Chancellor Kent, considered “tbe higher and firmer ground.” 4 Kent (12 Ed.), 575; *Brady v. Cubit,*Doug. 31.

Tbe present statutory provisions were first introduced into tbe Code of 1852, being section 1957. It is not a legislative affirmation *in toto*of tbe doctrine as it existed prior to, and independent of tbe statute. By tbe statute, tbe wife or tbe child must be living at tbe death of tbe testator, while by tbe common law, tbe death of tbe child before tbe death *44of 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 John. Ch. 506; 4 Rent, 12 ed. 578. 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, unless provision is made for the after born child, or an intention not to make such provision is shown, as required by the statute.

Erom the doctrine that the revocation was a consequence of a tacit condition annexed to the execution of the will, it followed that a provision for the wife and child by a settle*45ment made after the will, did not prevent a revocation. 1 Jarman on Wills (Ran. *&*Tal. Ed.) 276. The statute having impliedly abrogated this rule, or having declared that it shall not be regarded in this State, the conclusion following from the rule falls with it, and under the statute, a settlement pz’oviding for the child, made after the execution of the will, is sufficient to rebut the presumption of revocation. We can conceive no adequate reason on which to base an inference, that the legislature intended that provision, by gift or settlement should be made *before*the child was born, and *ivhen*a second marriage may not, and probably could not, have been reasonably contemplated.

2. The remaining question is, whether the ante-nuptial settlement is a provision for the child in the meaning of the statute ? A construction should not be placed on the statute which will impair, or interfere, with the right of the testator to absolutely dispose of his property as he may deem proper, further than its terms, expressly or by clear implication, require to accomplish the intended ezids. It does not operate to deprive the testator of the right azid power to determine the nature and extent of the prpvisiozi, which he will make for those having claims on his natural affections. It does azot undertake to declare the measure and extent of the provision which the testator must make for the after born child. He may make no provision whatever, provided, the child is mentioned in the will in such a way as to show an iiztention not to make any provision. The requirements of the statute are satisfied, if it be shown by a provision, made by gift or settlement, or by mentiozz of the isszze in the will, that such issue was fully in his mind and contemplation, and that he acted deliberately on the matter of making provision for such issue. In *Kennebel v.*Scrafton, 2 East. 529, Lord Ellenborough said: that, the doctrizie of implied revocation only applies where there is an ezitire disposition of the whole estate, and the Avife and childrezi are *'wholly*unprovided for. Uzider the statute, the testator has discretion and capacity to determine the nature and extent of the provisiozi, when made by gift or settleznent, the same as when made in the will, Avith the qualification, that the gift or settlement’will be insufficient, if by reason of gross inadequacy, it shall be an equivalent of no provision. He. may make no provision Avhatever, but in such case, the intention must be shown by mention of the issue in the *will.*It was deemed that the issue had sufficient security resting on parental affection, *46that the father’s power of disposition would not be abused.

By the ante-nuptial settlement, the testator, in considera-tion of the intended marriage and of the relinquishment by his intended wife of all claim which she may, or might become entitled to, by reason of the marriage, upon his real and personal property conveyed to her, real and personal property upon trust, that she should hold the same during her natural life or widowhood, with remainder to any issue of the marriage living at the time of the testator’s death, or at the time of her re-marriage, and should such issue die -unmarried, then to the heirs at law of the testator. In *ex parte*Earl Ilchester, 7 Ves. 348, on the marriage of the testator subsequently to making his will, a settlement was made in favor of his wife, by which provision was also made for the children of the intended marriage. Lord Chancellor Eldon held that the wife and children being provided for, and there being children of the former marriage, the Avill was not revoked by the second marriage and the birth of children. It has also been held, that a marriage settlement, by which an estate is secured to the wife during her life, with remainder to the children of the intended marriage, is a sufficient provision for wife and children to rebut a presumptive revocation. *Talbot v. Talbot,*1 Hag. 299. A provision creating a trust for the child, which a court of equity would enforce, is a provision for the benefit of the child, such as falls within the words, as well as the spirit of the statute. *Walker v. Hall,*34 Penn. St. 483: Clearly, provision is made by the ante-nuptial settlement for the child, the issue of the second marriage. The testator, at the time he made the ante-nuptial settlement, had fully in mind and contemplation the probability of issue by his intended marriage, acted deliberately on the matter, and determined the nature and extent of the provision, which he would make for such issue. If the will were revoked, the ante-nuptial settlement would remain in force, and the child born of the second marriage would receive the property conveyed by the settlement — the provision made by the testator — in addition to an equal distribution in his estate with the children of the first marriage. A construction should not be placed on the statute, which would result in such inequality and injustice, contrary to the intentions of the testator. We regard the ante-nuptial settlement, which *prima facie*makes a substantial provision, a sufficient provision for the after born child, in the meaning of the statute, to prevent a revocation of the will.

Reversed and remanded.

*47SOMEBYILLE, J.

The construction of section 1953 of the present Code (Code, 1876, § 2282) does not seem to me to be involved in any doubt or embarrassment, by reason of the language in which it is expressed.

My analysis of the section is briefly this: The revocation of a testator’s will, which is declared to be effected by his marriage and subsequent birth of issue, can take place only in the following concurring contingencies: (1) The making of a will disposing of substantially his *whole*estate; (2) The testator’s subsequent *marriage-,*(3) Birth of *issue*from such marriage at any time, whether *before*or *after*the testator’s death;' (4) The survival of *either*the wife, *or*such issue after the testator’s death.

If these four incidents occur, the will is totally revoked, *except*in the following cases, which operate to prevent revocation: ' (1) Where the testator, in his will, *provides for such issue,*or makes mention therein of such issue so as to show an intention, express or implied, *not lo malee such provision;*(2) Unless before death he makes provision for such issue by some *gift,*or *settlement,*whether before, contemporaneous with, or *after*the making of his will.

The only mode of rebutting the presumption of revocation raised by the statute is by evidence of a provision having been made in one of the two modes last mentioned. No oral declarations of the testator are admissible in evidence for the purpose of raising a contrary intention.

Section 1955 of the Code (1886) has reference to a partial revocation of the will, so far as to allow a child born after the making of the will to take as in case of intestacy, and does not affect the question before us.

These conclusions seem to me to clearly follow from the obvious meaning of the words employed in the statute, which leave but little room for construction.

I concur in the view of Judge Clopton that the ante-nuptial settlement made, in this case, by the testator for the child afterwards born, was a sufficient provision to prevent the revocation of the will, which would otherwise have followed under the operation of the statute.