Deupree v. Deupree

45 Ga. 415 | Ga. | 1872

Lead Opinion

McCay, Judge.

Whether the English rule, making the marriage of a testator and the birth of a child to him, a revocation of a previous will, under certain circumstances, was based upon a presumed intention of revocation, or whether it was based upon an implied condition attached to the will itself, is not, in the view I take of the great question in this case, material to be discussed. In either view of it, that rule was founded in the desire of the Courts that the wife and child should be provided for, and, in all the cases, the fact of provision or no provision in some way of a substantial character, was the pivot on which the result turned. In my judgment, the question under our Code turns upon entirely a different idea, and the reasonings and analogies of the English Judges are entirely inapplicable to it. Our Code, section 2441, is as follows: “In all cases, the marriage of a 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.”

The revocation is, by these words, made to turn, not upon any provision made for the wife or child, but upon whether the testator, by his will, has made a provision for such an event. If, by his will he has done so, the will is not revoked; if he has not, it is revoked. It is immaterial whether this provision for the event is a provision for the benefit of the wife or child or not; it is enough if it is for the event. If the provisions of the will meet the requirements of the statute, it is not revoked; if they do not, it is revoked. Whether the wife or child is provided for in some other way has nothing to do with it; the law, by its express, positive^ terms, makes it turn upon the provisions of the will.

The only questions to be asked are: 1st, Was the marriage or birth subsequent to the making of the will? 2d, Does the will make a provision for the event f If the first question must be answered in the affirmative and the second in the negative, the will must stand revoked, unless the Court has power to say and does say that it will alter or modify the law to meet a case that it may think a hard one.

It is pretty evident that Mr. Deupree did not intend to revoke his will by his marriage; but the difficulty is, (supposing this paper of 1853 to be his last will,) he has not expressed that want of intent in the legal way, to-wit: he has not, by his will, made a provision in contemplation of the event. The law has fixed that way and that way only, as the means by which such a want of intent shall be manifested; and the Courts have no more power to say he-may do this in any other way than they have to say he may show his intent to make a will in some other way than in the way prescribed. Exactly such a fact, and exactly such a will as this section of the Code provides for here, exist. It is, in my judgment, therefore, revoked. But, if Mr. Deupree, in 1864, made an addition to his will, confirming it and making a provision for the event of his marriage, then, as this will consists of both these papers, his will is not revoked by his marriage.

I agree with the Court below that the paper executed in 1864 is testamentary in some of its provisions. It undertakes to provide for the disposition of certain of his property at his death, and it in express terms reaffirms his will made in 1853, by declaring that any children to be born to him shall take under said will, etc. And if that paper was executed as a will, then I am clear his will, his whole will — the paper of 1853, and the paper of 1864 — was not revoked by his marriage. Not because the wife is provided for, but because Mr. Deupree has, in the legal way, declared his intention not to revoke his will, to-wit: by making provision in it in contemplation of the event of his marriage. The legal execution of this paper was a question of fact for the jury, under the law. Under the evidence it was, without doubt, signed and witnessed by three witnesses, who subscribed their names thereto as witnesses. The only serious question on the trial, on this branch of the subject, was whether the witnesses signed the paper in the presence of Mr. Deupree. It was contended on the trial, by one side, that Mr. Deupree was present, and by the other that he was not; on this point there was a great deal of evidence.

It is contended that the Judge, in his charge to the jury, gave them an erroneous instruction in a matter material to the determination of this point. It was said that, as the witnesses all testified to the signature of the testator, and to their own signatures, and were unable, in consequence of the lapse of time, to state affirmatively that he was present v'hen they signed, or that he was not present, there was a presumption of law, from the fact of attestation, that the paper was duly attested. That is, that it was attested as the law requires such papers to be attested. The Court charged the jury that such was the law, provided the attestation clause stated or recited the presence of the testator during the signing by the wetnesses; but if the attestation clause did not so recite, no such presumption arises, even though the witnesses fail to remember affirmatively the fact of the presence or the absence of the testator. My brother Montgomery and myself think the Judge erred in this charge.

The attestation clause is not a necessary part of the will. A will is good, if properly proven, without any such clause: Redfield on Wills, 1st volume, 238; Williams on Executors, 83. Our Code declares that there is no particular form prescribed for a will: Section 2360. It must be signed and Avitnessed as the Lav requires, and that is all. There is no requirement that there shall be any attestation clause — much less that that clause shall state and certify to all the necessary requirements: Code, section 2380. "Whether a paper is a will or not depends on its contents, and not on what if is called, or considered to be, by either the witnesses or the maker of it: Code, section 2360. There is no question as to the general rule, that, on the death of the witnesses, or on the failure of their memory, the proof of the fact of execution begets a presumption that all the details of the fact were such as the law requires: 1 Greenleaf’s Ev., section 38 (a); 1 Redfield on Wills, 237, 238, 239. And the positions laid down by these authors are well supported by the authorities: Croft vs. Parkhurst, 2 Strange’s Reports, 1109; Heard vs. Joiner, 2 Comyn, 531; Clark vs. Donnorant, 10 Leigh, 22; Fatheree and wife vs. Lawrence, 33 Mississippi, 622.

These cases establish, also, that this presumption does not depend on the recitals in the attestation clause. The case in Mississippi was a case of a will, and the paper had no attestation clause, except the word “test;" and the "Virginia, case was, as is the case at bar, a paper claiming to be a will, with an attesting clause, like this : “Signed, sealed and delivered.” It is clear to me, therefore, that it was error in the Court to say this presumption did not arise, unless the attesting clause stated the presence of the testator. In 2 Redfield on Wills, 35, it is said and even where there is no attestation clause, or it is defective, there still remains the presumption that all which appears upon the paper occurred in the order stated, and as the law requires it shall be done, * * * according to the maxim, omnia praesumuntur site et solemniter esse aeta donee probatur in eontrarium.

There are some cases of wills executed under powers, prescribing certain forms, when it has been held that the proof must show that the forms have been complied with ; and even though the witnesses be dead, or cannot remember, the presumption of compliance does not arise, unless the will itself or the attestation clause so states: 1 Redfield, 238, 239. But I have not found a case of a will, made under the statute, where it has been held that the presumption arising from the fact of attestation is made to depend on the" recitals in the will, or the attestation clause. Some of the cases say the presumption is. stronger, if the fact be stated, but it exists even if there be no attestation clause, or if it be imperfect. See, also, Dean vs. Dean, 27 Vt.; Elhat vs. Elhat, 10 Allen; Lawrence vs. Norton, 45 Barbour.

As a matter of course, the presumption is stronger or weaker, according to any material facts connected with the case, and, if it was recited, this would strengthen it. But it is a wise rule of law that such a presumption should exist. How many wills do not come up for probate, until many years after the execution of them! Sometimes, the witnesses can only recognize their own hand-writing; sometimes they only remember the fact that the testator signed, and perhaps only that they signed. Who was present and all the other details, have passed from memory. To say that under such circumstances the will is not to be probated, would be a death blow to wills.

It is said, however, that the witnesses in the case at bar do not fail to remember, and that even if they do, there is such an abundance of evidence that the testator was not present as to have required the verdict against the propounders, had the law been given rightly. As this case is to be tried over again, and it is not fair to either party for this Court to discuss the weight of the evidence, I will only say, that for my part, I think there is evidence to justify a verdict either way, and that, in my judgment, the witnesses to the will do fail to remember what was the real truth of the case. The inference drawn by two of the witnesses from certain facts which they do remember, is not evidence. It is only opinion. It is not rememberanee, but inference, which it was for the jury to infer or not, from the facts stated. The recollection of a witness, though it may be indistinct, is evidence for what it is worth, but his opinion, entertained now as an inference from certain facts which he does remember, is not evidence. The presence or absence of the testator is a matter of fact, and is not to' be proven by opinions, even though the facts be stated. I do not think either of the witnesses to the will does state as a fact that the testator was not present at the time they signed. One of the witnesses says he was present when he took the pen to sign, but all the rest is merely want of any recollection of either seeing him or not seeing him. As to the other evidence, as I have said, I do not think it fair to discuss it in detail. I only say that if the jury had been told there was a presumption of the presence of the testator at the time of the witnesses’ signature, if they failed to remember the truth of either his presence or absence, it is possible they might have come to a dfferent conclusion. Had this charge been given — I do not say the jury ought to have found one way or the other — I only say that in my judgment, a verdict in favor of his presence would not have come among that class of verdicts which this Court will declare illegal, and set aside. The evidence would not have demanded the verdict. It would not have been illegal for the jury to set up this paper as a will. Upon the other points made we are all agreed.

The witnesses cannot, under our law, be compelled to go out of their county : Code, 3788, 3471, 2394, 3821-3. And it was in the power of the parties, under the direction of the Court, to present the original paper to the witnesses by interrogatories. Nor was the Court in error in permitting Mrs. Deupree to be sworn. So far as this paper is a will, it is not a contract with her, nor has she any interest in it as such, since she has bound herself not to take anything from his estate. The answer of Mrs. Atkinson is, in substance, a reply to the natural import of the question; at any rate, if it fails, it is in very immaterial matters.

Judgment reversed.

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Concurrence Opinion

Montgomery, Judge,

concurring.

Concurring, as I do, in the opinion of the Court, as deliverred by Justice McCay, except upon one point, I only deem it necessary to give the reasons for my dissent on that, contenting myself with a general approval of his opinion upon the remaining points in the case.

1. After much fluctuation in the English Courts, the rule, as finally settled, applicable to all wills made prior to 1838, (when the Statute of Wills was passed,) may be thus stated: The law attaches a tacit condition to all wills, that if the testator marry and have issue born of the marriage, subsequent to the making of his will, the will is revoked, unless provision is made in the will, or otherwise, for such issue, and if he devise only a portion of his estate, the condition does not attach. The following authorities, I think, establish the rule as above laid down: Ex parte Earl of Ilchester, 7 Vesey, jr., 348; Havens vs. Van Denburgh, 1 Denio, 27; Kenebal vs. Scrafton, 2 East., 530; 1 Redfield on Wills, 294-5; Brady vs. Cubit, 1 Doug., 31; Marston vs. Fox, 8 Adolph. and Ellis, 14; (35 E. C. L. R., 326;) see Brush vs. Wilkins, 4 Johns., 507. It will be seen, by reference to the foregoing authorities, that unless the whole property of the testator is devised, the will is not revoked; that if provision is made for future issue by marriage settlement, the will stands; that the tacit condition does not operate, unless he “leaves no provision for any child of the marriage,” in the language of the Court, in Marston vs. Fox. Not that he must leave such provision in the will — an examination of the context shews that the Court means, that where property is not embraced in the will, out of which a suitable provision exists for the future issue, then, no revocation. A careful examination of this case of Marston vs. Fox, on which the defendants in error mainly rest their case, shews that the Court was very guarded in laying down the rule, so as not to overrule any preceding cases, except those which rested solely on the principle enunciated by Lord Mansfield, in Brady vs. Cubit, that revocation or not, by subsequent marriage and issue, was a question of intention on the part of the testator, and might be rebutted by evidence. In the case, then, before the Court, parol evidence was sought to be introduced for that purpose; and this was rejected on an additional principle, to-wit: that to admit it for the purpose of establishing the will, necessarily involved its admission in rebuttal; and if admitted in rebuttal, it could be admitted in chief, and this would be contrary to the Statute of Frauds. The Chief Justice, in delivering the opinion of the Court, says, “It is a question whether such revocation shall be allowed to depend upon evidence of intention — that is, upon evidence of which parol declarations of testator may confessedly form a part, whilst the Statute of Frauds has anxiously and carefully excluded evidence of that nature, with respect both to the original making and the revoking of wills of land.” See argument of Sir W. W. Fol-let, in Marston vs. Fox.

The revocation in Marston vs. Fox was placed upon the ground that there was no provision for the after-born child, either in the will or out of it. It may be added, that in Sheath vs. York, 1 Vesey & Beam, 390-1, it is decided that the revocation must inure to the benefit of the after-born child , otherwise, the will must stand. If this be law unrepealed, it applies to the present case, and would prevent the revocation. I, however, doubt the correctness of the decision, even at common law. If the principle be true, the death of the child, whose birth revoked the will in the life-time of the testator, would operate as a republication. If, then, the common law be as I have stated it, to-wit: that the will is not revoked when the after-born issue is provided for, either in the will or out of it, the next question for consideration is, to what extent have our statutes modified the common law ?

2. The only Act of the Legislature of Georgia upon this subject prior to the Code, is the Act of December 19th, 1834. This Act grew out of the contest in Richmond county, shortly before its passage, over the will of one Cormick, who made a will and afterwards married and had issue. The propounders and caveators were represented respectively by John Forsyth and Richard H. Wilde, both lawyers of high reputation. Both counsel conceded that the issue was one solely of intention. The idea that a tacit condition of revocation was annexed to the will by operation of law, under the facts, seems not to have occurred to either counsel as being the law of Georgia at that time. It will be remembered that the case of Marston and Fox was not decided until 1844 — tenor twelve years after. Cormick’s will was set aside. The result of the case, then, could have furnished to the Legislature no reason for altering the law from a presumption of intention to revoke to one of tacit condition of revocation. And I am informed by a gentleman of high position at the bar, who heard the case tried and is familiar with the history of the Act, that the sole object of its framers was to alter the common law to the extent of making marriage or birth a presumptive revocation, where there was no provision for the future wife or child, and to this extent only. Be this as it may, keeping in view the old law, the mischief and the remedy, and looking to the reason and spirit of the statute, it seems to me to alter the common law in but three particulars: 1st. By making marriage or birth of issue a revocation, unless the after-married wife or after-born children are provided for. It is immaterial, for the purposes of the present case, whether this revocation was by tacit condition or presumptive intention. 2d. A fair construction of the Act would seem to require a revocation, even where the will disposed of only a part of the testator’s estate. 3d. The marriage or birth did not of itself revoke the will, but the Court of Ordinary was required to pass an order declaring an intestacy. It is true, the words of the Act require the provision to be made in the will. I will consider that in its order. It is said that the mischief intended to be remedied by the Act of 1834 was the conflict between the decisions of the Courts, both in England and this country, in interpreting the common law rule. Was not the mischief, rather, the unprovided condition of the subsequently married wife or after-born child, which condition presented a strong, equitable claim on their behalf for the protection of the law ? There was no conflict of opinion as to whether it required both marriage and birth of a child to Revoke a will, before the Act.

3. This Act remained in force until the adoption of the Code, when, as seemed to be conceded by counsel, it was superseded by section 2441, which makes subsequent marriage or birth a revocation, unless the will contain a provision in contemplation of such an event. But, so far as the issues involved in the present case are concerned, does not alter the Act of 1834. It is not by any means clear to my mind that this section, taken in connection with section 2438, does not indicate an intention on the part of the codifiers to adopt Lord Mansfield’s rule of presumptive intention, and not that of tacit condition. Concede, however, that section 2441 adopts the rule as laid down in Marston and Fox, does it follow that the provision for the subsequent wife or child must appear in the will? The words of the section, taken literally, seem to require it. But is it a sound rule of construction to adhere so closely in litera, and entirely ignore the reason and spirit of the Act? Would any one hold that a will in execution of a power is revoked by subsequent marriage or birth under the section? And yet the words of the section make no exception. A will of a woman was revoked by her marriage, at common law, absolutely, without reference to provision in contemplation of the event; and yet a will made by her in execution of a power was not so revoked. Suppose the strict construction so insisted on by counsel for defendants in error had been applied to the Statute of Frauds, what would have become of the rule on which their whole case rests ? The sixth section of that Act provides, “ no devise in writing, of lands, tenements or hereditaments, or any clause thereof, shall at any time be revocable otherwise than by some other will or codicil, in writing, or other writing declaring the same, by burning, cancelling, tearing or obliterating the same by the testator himself, or in his presence and by his directions and consent; but all devises and bequests of lands and tenements shall remain and continue in force until the same be burnt, cancelled, torn or obliterated by the testator, or his direction, in manner aforesaid, or unless the same be altered by some other will or codicil, in writing, or other writing of the devisor, signed in the presence of three or four witnesses, declaring the same, any former law or usage to the contrary notwithstanding.” This section not only points out the specific modes in which a will may be revoked, (among which subsequent marriage and birth of issue are not mentioned) but declares that all wills “ shall remain and continue in force” until revoked as therein pointed out, and yet the Courts have held, in the teeth of the words of this statute, that marriage and birth of issue revoke a will. Is it not safe to adhere to a uniform rule of construction in interpreting statutes m pari materia? Can any reason be given why the provision for the future wife and child should appear in the will? Counsel have failed to point out any, other than such is the letter of the statute. They have shown good reasons why the rule, as laid down in Marston and Fox, should be preferred to that of Lord Mansfield. And without being altogether satisfied that our Legislature did not intend to adopt Lord Mansfield’s rule, I have assumed that our law annexes a tacit condition of revocation to a will on subsequent marriage of, or birth of issue to the testator, where the future wife or child is not provided for. But I have failed to perceive that our law, unlike the common law rule, requires the provision to be made in the will, and only there. Again, Code, 1767, requires all marriage settlements to be liberally construed to give effect to the intention of the parties. If we hold this will revoked, we render of none effect the provision made in the settlement for the after-born children, for that depends on the validity of the will. So that we destroy a provision made for after-born children by a rigid and literal construction of an Act which was intended to secure provision for them. This anomaly should be avoided if possible. The fact that no after-born children sprang from the marriage under consideration, cannot alter the principle. Suppose instead of owning the property, the testator had had a life-interest, with power of disposition by will, and remainder in the children by his first marriage, if he died without exercising the power. Having made his will, and then by marriage settlement provided for his subsequently married wife, and opened the will in favor of the possible issue of the last marriage, so as to put them upon an equal footing with his other children under the will, he might well have reposed in the belief that he had fully provided for all his children, had issue sprung from the last-marriage. And yet, the construction now put upon the Act would, in the case supposed, defeat the plain and obvious intention of the Legislature, and so distort the statute as to deprive those of the benefit of it for whose sole advantage it was passed. Nay, more, the statute becomes a sword to pierce instead of a shield to protect.

4. Hence, I dissent from the views of the majority of the Court on this point, and believe a provision by marriage settlement for the future wife and after-born children is a compliance with the condition annexed by law to the making of a will, and prevents revocation.

5. That presumption of proper execution of a will arises from the signature of the testator, and the fact of attestation by the witnesses, without reference to what may be recited in the attestation clause, where the witnesses do not distinctly remember, see Hand vs. James, 2 Comyn, 531; Croft vs. Poullet, 2 Strange, 1109; Boyse vs. Smith, 1 Willis, 1; 10 Leigh (Virginia Reports), 22; Redfield on Wills, 238, note.

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Dissenting Opinion

"Warner, Chief Justice,

dissenting.

On the 27th of June, 1853, Lewis J. Deupree made his will, and, on the 8th of September, 1859, he made a codicil thereto. On the 24th of May, 1864, he married Lucy Y. Peebles. Prior to said marriage, an ante-nuptial contract was made between the parties, securing to his intended wife all the property she then had, and settling upon her the sum of $10,000; in consideration of which, it was covenanted and agreed that the will of said Deupree should stand, and that she would not caveat the same, and provided also that if any children should be born after said marriage that they should take an equal share under his will with his other children named therein. The will, codicil and deed of marriage settlement were all propounded for probate, as the last will and testament of the testator, to which the widow and children of Deupree by a former marriage filed their caveat on the ground that the original will and codicil were revoked by the subsequent marriage of the testator, and that the paper offered as a testamentary paper, dated the 24th of May, 1864, was not attested and subscribed by the witnesses thereto in the presence of the testator, and therefore could not operate as a will. On the trial of the case, the jury found a verdict in favor of the caveators, and that Deupree died intestate. Exceptions were taken to the rulings and charge of the Court; upon several grounds, which are assigned as error here: First, the refusal of the Court to continue the case. Second, that one of the interrogatories put to the witness Dorah Atkinson was not fully answered. Third, that Mrs. Deupree was not a competent witness. Fourth, that the Court erred in charging the jury as to the legal effect of the attestation clause to the paper dated the 24th of May, 1864, and in the general charge as to the law in regard to the revocation of the testator’s will.

The motion for continuance was properly overruled by‘the Court. The witnesses did not reside in the county in which the trial was had, and, under the general law of the State, were not compelled to attend the Court in another county. If the propounders of the will had desired to attach the original will of the testator to interrogatories to be exhibited to the witnesses, the Court, on a proper showing, would have granted an order for that purpose, as is the usual practice of the Courts, when it becomes necessary to prove the factum of a deed, or other instrument, filing a copy thereof in the Clerk’s office: Code, sections 3748, 3471, 2394, 3821, 3480. The interrogatory put to Mrs. Dorah Atkinson was substantially answered by her: Mott vs. Hall, Maer & Company, 41 Georgia Reports, 117. Mrs. Deupree was a competent witness : Brown and wife vs. Carroll, 36 Georgia Reports, 568. The law requires that a will should be attested and subscribed by at least three witnesses, in the presence of the testator, and the question made on the trial was, whether the paper writing, dated 24th May, 1864, propounded as a will, had been attested and subscribed by the witnesses, in the presence of the testator, so as to make it a valid will. The attestation clause to the paper recited that it was signed, sealed and delivered in the presence of the three witnesses, but did not recite that it was attested and subscribed by them in the presence of the testator. If the attestation clause had so recited, then the legal presumption would have been that it was attested and subscribed by the witnesses, in the presence of the testator, in the absence of any evidence to the contrary thereof. The point in the case was not whether the testator signed, sealed and delivered the paper in the presence of the witnesses, but did the three witnesses attest and subscribe the same in the presence of the testator; the attestation clause does not recite that they did, and, therefore, the attestation clause furnishes no legal presumption as to that fact, and there was no error in the charge of the Court, in relation to that point in the case, of which the propounders of the paper have any legal right to complain. The attestation clause does not recite that the witnesses attested and subscribed the paper in the presence of the testator, so as to raise the legal presumption therefrom that they did, which was the material fact to be established, either by presumption or affirmative evidence. The evidence in the record upon that point in the case fully sustains the verdict and rebuts the legal presumption contended for, if there had been any foundation for it in the attestation clause, as claimed by the propounders of the paper. The evidence in the record upon that point in the case was such as to require the verdict which the jury found, setting aside the paper writing propounded as á will, dated 24th May, 1864. That paper being out of the way as a will, the next question to be considered is, whether L. J. Deupree died intestate, according to the laws of this State; in other words, whether his will, made prior to his marriage, was revolted. There is no provision made in the will of the testator in contemplation of such an event. The 2441st section of the Code declares, that, “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.”

But it is said that it was not the intention of the testator in this case to revoke his will; that is undoubtedly so, and the question is, which is to control the intention of the testator or the public law of the State f There can be no doubt as to the plain meaning and intent of the law, and when the intention of the testator is in conflict with the law, that intention must yield to the stern mandate of the law. The 2437th and 2438th sections of the Code relate to the acts of the testator himself, and as to what was his intention in the performance of those acts in regard to the 1’evocation of his will- The acts of a testator in regard to the revocation of his will and what was his intention in the performance of those acts is one thing; the declared will of the supreme power of the State as to what shall constitute the revocation of a testator’s will, is another and quite a different thing— the one is controlled by the testator’s intention, the other is controlled by the law of the State without any regard to the testator’s intention. The intention of testators cannot override the law or repeal it.

In this case there are no children born subsequent to the marriage, and the widow is estopped by her ante-nuptial contract from claiming any part of the testator’s estate in the event of a revocation of the will, but that does not alter the law. The children of the testator, born before making the will, his heirs, are not estopped from claiming the benefit of the law, and are now before the Court demanding its judgment, that an intestacy shall be declared in their favor, on the ground that the testator married after making his will, in which no provision is made in contemplation of such an event. The law is in their favor, and they are entitled to have it administered by the Courts and an intestacy declared in obedience to the requirements of that law: Holliman et al. vs. Copeland and wife, 10th Georgia Reports, 79. The law, as prescribed by the 2441st section of the Code in relation to the revocation of a testator’s will, is a public law of the State, an universal rule that regulates the conduct of the whole community, including the testator as well as all other persons. It declared to him in plain, explicit terms, that if he made a will in which no provision was made, in contemplation of the event of a subsequent marriage, and after the making of such will, he should marry, that such marriage should be a revocation of his will. The testator could not alter or change this rule of law by his compact or agreement. “ The language of a compact is, I will or will not do this; that of a law is, thou shall or shall not do it:" 1 Bl. Com., 45. The design and object of all laws is to ascertain what is just, honorable and expedient, and when that is discovered by the law-making power, it is proclaimed as a general rule of conduct, equally binding and impartial to all. The Judges of the Courts are not “ chartered libertines,” to defeat and destroy the effect of a plain constitutional law by construction to suit their notions of expediency ; their duty is to administer and enforce it, when its terms and meaning are clear and explicit.

The real question in this case is between the children of the testator by a former marriage, legatees under the will, who are caveators, and the propounders of the will. They allege that the will was revoked by the marriage of the testator subsequent to the making of the will, in which no provision was made in contemplation of such an event, and pray that an intestacy may be declared by the judgment of the Court. Have they the legal right to have the will of the testator revoked and an intestacy declared in their favor, under the public law of the State? That the will was made by the testator before his marriage with Mrs. Peebles is an undisputed fact; that no provision is made in that will in contemplation of such an event is also an undeniable fact. What is the law applicable to this statement of facts? The Code declares that, “In all cases, the marriage of the testator 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.” But it is said this law was not intended for their benefit, but for the benefit of the wife, and children born of the second marriage. The reply is, that the law is general in its terms, and declares M'hat shall be a revocation of a testator’s will, and if the will is revoked by the commandment of the law, the children who are the legatees of the testator under that will may claim the benefit of that law if it is their interest to do so. It was the intention of the General Assembly in the enactment of the law to establish a fixed and definite rule in regard to the revocation of wills in case of marriage or the birth of a child subsequent to the making of a will by the testator, so as to avoid all future controversy in relation to that question.

The decisions of the Courts in England, and in this country, were conflicting as to the proper construction of the common law rule in relation to the revocation of wills by the subsequent marriage of the testator and birth of children. That was the mischief which the Act of 1834, substantially embodied in the Code, was intended to remedy, and it is the duty of the Courts to enforce it so as to suppress the mischief and advance the remedy, and not to perpetuate the mischief by going behind the Act to find the proper rule of construction in such cases, when the Act plainly declares what the rule shall be.

The law does not interfere with the right of a testator to dispose of his property by will — it simply declares to him, that if he marries after making his will, in which no provision is made in contemplation of such an event, that will shall he revolted, and he must make another if he desires to dispose of his property by will.. In other words, he must regulate his conduct in obedience to the public law of the State in relation to that matter.

The law, as prescribed by the Supreme power of the State, was a rule of conduct for this testator as well as all others, and he could not defeat its general operation by his compact or agreement, whatever may have been his intention. In my judgment, the children of the testator by his former marriage, his heirs, have the clear, undoubted legal right, under the public law of the State, to have the judgment of the Court in favor of a revocation of the testator’s will, and that he died intestate, under the statement of facts disclosed in the record, and that the judgment of the Court below should be affirmed.

Judgment affirmed.