115 Ga. 857 | Ga. | 1902
On June 19, 1880, 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
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, 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a will made by her in which no provision was made in contemplation of that event: “ At common law the woman’s will was revoked, but the man’s was not.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 ydder 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 bom 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
In the Deupree will case, 45 Ga. 415, the majority of the' court held that “ 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, is, by presumption of law, a revocation of the will,” which presumption could not be rebutted by extraneous evidence. Judge McCay stated his views as follows: -“ 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 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 ? 2nd, Does the will make a provision for the event ? 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 that it will alter or modify the law to meet a case that it may think a hard one.” Judge Warner, while dissenting from the judgment of reversal entered in that case, took the same view of this question as Judge McCay did. He said: “ The acts .of a testator in regard to the revocation of his will and what was
Keeping these rules in mind, it will be seen that there is nothing in the will involved in the present case, or, so far as the record discloses, in the will taken in connection with the circumstances existing at the time of its execution, which shows that the testator had in mind the event of the future birth of a child o.r made any-provision in contemplation of that event. There were, at the time the will was made, children of the testator then in life; and therefore the case is wholly different from that of Freeman v. Layton, 41 Ga. 58, where a testator, who had no children, provided in his will that if he should die leaving a child or children, his property was to be equally divided between them if there was more than one, or given to one if there was only one. In that case it was held that the will was not revoked. It was argued that the child born subsequently to the making of the will involved in the present case would fall within the general class designated in the will by the word “ children,” and that as the testator evidently manifested an intention to disinherit his children then in life, the child subsequently born would also be disinherited; that unless a contrary intention be shown, the word “ children,” appearing in a will, refers to the children living at the death of the testator. Counsel for the defendant in error rested their argument mainly upon the proposition
Whatever opinion may be entertained upon either of the foregoing propositions, it would not, in our judgment, affect the conclusion which we have reached that the will was revoked. Even under the act of 1834, which required that some positive beneficial provision should be made for the child, it was held that the fact that the after-born child might, upon the happening of certain contingencies, take a beneficial interest in the estate, under the general description of children used in the will, would not constitute such a provision for the child as was contemplated by the statute. Holloman v. Copeland, 10 Ga. 79. Much less could a general expression in a will which operated to disinherit all the children of the testator living at his death be said to indicate that provision was made in the will in contemplation of the event of the birth of a
Judgment reversed.