#### JANET A. LATHROP, Appellant, *v.*HELEN DUNLOP AND OTHERS, RESPONDENTS.

*Wül—revocation of, by marriage*— 2 *R. S.,*64, § 39 — *Qonsbruetioñ of words*“ *deemed, to be revoked.*”

A, while a resident of this State, made her will. Subsequently, in Canada, she entered into an ante-nuptial agreement, by the terms of which she retained full control of her own property. Afterward she married and died. *Held,*that by the provisions of 2 Revised Statutes, 64, section 39, the will was revoked. The expression of the statute “ deemed to be revoked ” is positive, and does not create a mere presumption in favor of revocation, subject to be explained.

*214Appeal from the decision of the surrogate of Albany county, refusing to admit to probate the will of Jessie Dunlop Empson.

*S. O. Shepard,*for the appellant.

2 Revised Statutes (5th ed.), section 39, page 145, says: *“A*will executed by an unmarried woman shall be deemed revoked by her subsequent marriage ” (not-revoked, but deemed or regarded as revoked, unless circumstances indicate to the contrary). This statute merely raises a presumption of revocation, from the fact of the subsequent marriage. *(McMahan*v. *Allen,*4 E. D. Smith, 552, opinion of Woodruff, J.) But it is insisted that this section 39 of the statute, if not in express terms, is repealed by implication, by the acts of 1848,1849 and *1860.*Before the passage of these acts (married woman’s acts, so-called), it was held that *“*slight circumstances in some cases were sufficient to destroy the presumption of a revocation arising out of a change in the testator’s family.” *(Havens*v. *Vandenburgh, 1*Denio, 32; Dayton on Surrogates [2d ed.], 131.) The words “ dispose of,” used in an ante-nuptial contract, cover a devise or bequest by will. *(Am. Home Miss. Soc.*v. *Wadhams,*10 Barb., 548.) The act authorizing a married woman to dispose' of her property (Laws of 1849, chap. 375) also expressly declares “that all contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place.”

*Amasa J. Parker,*for the respondent.

“ A will executed by an unmarried woman shall be deemed revoked by her subsequent marriage.” (2 R. S., 64 [5th ed.], 145; 2 Edm. ed., 64; § 66, p. 66, chap. 360 of act of 1837.) Before the Revised Statutes, the law was well settled that such subsequent marriage was a revocax tion; and the only case in which it has ever been claimed to be otherwise, was when the wife survived the husband, which, it was claimed," revived the revoked will. It was clearly the intention of the Revised Statutes to render fixed and certain what, before .their adoption, had been open to question, and this clearly appears from the revisers’ notes. (3 R. S. [2d ed.], 631.) It will be observed that the exception to the revocation stricken out by the legislature was the one which the revisers think had been recognized in 2 Coke, 6, 2 Term, 684, but which was denied by other reliable *215authority and. had been overruled. (See 1 Redfield on Wills [3d ed.], §§ 24, 292; 1 Jarman on Wills [Eng. ed.], 114; *Cotter*v. *Sager,*2 P. Wms., 623, 624; *Doe*v. *Staple,*2 T. R., 685, 696.) It is a singular fact that on this subject of making the statute express the whole law, the State of Massachusetts should differ both from this State and from England. (2 Wash. on Real Property, 697 [marg.]; Mass. Gen. Stat., chap. 22, § 11.) This provision of our statute, by which the will of an unmarried female is revoked by her marriage, admits of no exception and of no presumption that can defeat it. (4 Kent Com., 527, 528 [marg. paging] ; *Langdon*v. *Astor’s Exrs.,*16 N. Y., 38; *Adams*v. *Winne,*7 Paige, 99 ; *Delafield*v. *Parish,*25 N. Y., 9, 99.)

Learned, P. J.:

Jessie A. Dunlop, a resident of this State, duly executed her will. Subsequently, in Canada, she entered into an ante-nuptial agreement, by the terms of which she retained full control of her own property. A few days afterward she married, and about two months after her marriage she died. Her marriage and death occurred in the year 1874; and she was a resident of this State until after her will was executed. Her will was presented for probate, and probate was refused on the ground of her subsequent marriage. From the refusal an appeal is taken.

The question involved is understood to have been decided by this court. As the case is not reported, we state, briefly, our views.

The, statute is plain and peremptory. Such a will “ shall be deemed revoked.” * The appellants urge that, as the expression is not “ revoked,” but “ deemed to be revoked,” it should be construed to mean only a presumptive revocation, open to explanation. We think not. The language is accurate. *Revocation*is an act done by the *party,*by which he recalls his will. The statute, therefore, with propriety says, not that the marriage revokes, but that it is to be deemed, or considered the same as, a revocation. It is not a revocation, but it has the effect of a revocation. The statute does not say that marriage shall be deemed a presumptive revocation, but, positively, it shall be deemed a revocation. The language is positive.

*216And it is well to have a definite rule on such a point, and not to ■leave the matter open to the *guesses*of courts, whether, in each particular case, the person intended, or did not intend, to leave her will in force.

The reason of the law is plain, that marriage produces such new relationships that a will made before marriage will not, as a general rule, express the wishes of the woman after her marriage.

We see nothing in the so-called married woman’s acts which should modify this statute. The fact that a married woman now has power to make a will, does not affect the reason of the law, which is mentioned above. To illustrate this, the previous sections of the statute declare that, in certain cases, the marriage of a man and birth of children, shall be deemed a revocation of his will. This is not because he had not the testamentary power, but because, as a general rule, the change of circumstances prevents his will, made previously, from expressing his wishes.

The same may be said as to the ante-nuptial agreement. In substance, this gave to the deceased the same rights which married women have now under the laws of this State. It gave her, or purported to give, the power to dispose of her property after marriage. But she did not exercise that power. And it is further important to notice that, even if, as the appellant claims, marriage were only a presumptive revocation, there was no act of the deceased, after such revocation, tending to rebut the presumption.

As the marriage, according to the appellant’s views, is to he presumed to be a revocation, and as that is the last act of the deceased affecting this subject, there is .nothing to overthrow the presumption.

The decree should be affirmed, with costs against the appellant.

Present—Learned, P. J., Boardman and James, JJ.

Ordered accordingly.

*

2 R. S., 64, §39.