19 Ill. 151 | Ill. | 1857
Lead Opinion
The case shows, that Stephen H. Tyler and the complainant intermarried in this State, in 1842, and here lived as husband and wife until his death in 1855 ;„that he died, never having had a child, and leaving a considerable estate, real and personal, in this State ; and that the defendants claim his estate under a will executed in the State of Connecticut, where Tyler then lived, in 1834; which will devises his entire estate to his blood relatives.
The material question is, whether this will, by the change of condition of the deceased, is revoked.
It is essential to a valid will, that it be the mind and intention of the maker, in relation to the matters to which it relates, at the time of his death. And an instrument executed in legal form, purporting to be a last will and testament, whenever made, is received as the last will and purpose of the maker, until shown to have been revoked in some of the ways known to the law.
Our statute contains substantially the same provisions in relation to revocation of wills, as the English statute of 29 Charles II; and the courts of that country have uniformly held, that marriage and the birth of a child, effecting a radical change in the condition, relation and duties of one who before had made a will providing for no such contingency or change of condition, by operation of law and presumptively revoke such will; but that marriage alone will not raise such presumptive revocation. Bacon’s Ab., title “Wills and Testaments,” H; 1 Lomax on Executors, sec. 5; 1 Jarman on Wills, chap. 7, sec. 1; Sneed v. Ewing, 5 J. J. Marsh. R. 460; Brush v. Wilkens, 4 John. Ch. R. 507; Havens v. Von Denbury, 1 Denio R. 27.
By the law of descents, both in England and in this country, the child may inherit the parent’s estate ; but there the wife is not heir to the husband, while here, she, in case there be no child or descendant of a child of the husband, is such heir and may inherit the one-half of his lands.
The reason of the law is the essence and soul of the law; and the reason of the common law rule existing here by force of our statute, making the wife heir to the husband and the husband heir to the wife, where there is no child or lineal descendant, the rule should go with it.
Where a statute of the mother country or of a sister State is adopted into our law, the rule is, that with it is adopted the construction of such statute which, prior to its adoption, uniformly obtained.
The wife, ordinarily, where there are no children to provide for, is a far more meritorious object of the husband’s bounty than collateral kinsmen, and is presumed to engage more intensely his emotions of interest and affection. It cannot, therefore, be supposed that he would would willingly die leaving her disinherited and unprovided for.
We hold, that marriage under our statute making the wife heir to the husband and the husband heir to the wife, where there is no child or descendant of a child, is, in the absence of facts showing an intention to die testate arising subsequent to the marriage, a revocation of a will of the husband, made prior to the marriage, disposing of his entire estate without making provision in contemplation of the relations arising out of it.
Decree reversed and cause remanded.
Concurrence Opinion
I concur in the judgment on the ground that the case shows that, at the time of making the will in Connecticut in 1834, the testator was possessed of property there, and there is nothing in the will to indicate that he intended by it to dispose of his after acquired property. As to that, he died intestate, and the appellant becomes entitled, under our statute, to all his personal, and one-half of his real estate, and her dower in the remainder.
Decree reversed.
