creditor atmitted a

testing to be witness.

sion before March, 1753, or established as entitled in a contest over the will9.) By the Revised Statutes of 1829 (2 R. S. 56,

50, 51,) all gifts to attesting witnesses are void, unless the witness is entitled otherwise than under the will, and the witness is competent. In North Carolina a gift to an attesting witness, or the husband or wife of such witness, is void, and the witness competent (1873, Batt. Rev., c.

(d) Vol. I., p *73.

17. This section is in substance the same as 25 Geo. II., c. 6, 2. It has also been enacted in Alabama (Mississippi Territory, 1806, Toulm. Dig. 883, 10); Arkansas (1847. R. S., c. 170, 42; 1873, R. S., 5807); California (1850, P. L., c. 72, 5; 1872, Code, 6282); Colorado (1867, R. S., c. 90, 6; 1877, G. L., 2793); District of Columbia (1857, Rev. Code, c. 52, 25); Delaware (1829, P. L., 221, 3; 1852, Rev. Code 272, 4; ed. 1874, p. 508.) In Georgia the act of 25 Geo. II., c. 6, is enumerated in Schley's edition of the British statutes in force in that state (p. 384.) This section, however, does not appear in the Georgia code. In Illinois a creditor is a competent attesting witness, notwithstanding a charge in the will in his favor (1829, Rev. Code 204, 38; 1833, P. L. 624; 1845, R. S. 545, § 43; 1872, R. S., c. 148, ? 20.) So in Iowa (1839, P. L. 484, 39; 1843, P. L. 667, 7; 1873, Code, 2327); Kansas (1855, T. L., c. 164, 39, not re-enacted); Kentucky (1851, R. S., c. 106, 14, in

119, 10.) In Ohio a gift to a witness, who is necessary to prove the will, is void so far as it exceeds any share to which he might have been entitled in case of intestacy, and the witness is competent (1808, 6 L. 64, ¿ 7; 1810, 8 L. 146, % 7; 1816, 14 L. 141, 7; 1824, 22 L. 119, ?. 8; 1831, 29 L. 242, % 10; 1840, 38 L. 120,.

12; 1852, 50 L. 297, 11; 1878, 75 L. 838, 13; 1880, Rev. ? 5925.) So in Ore

cluding charge of a debt to the witness' husband or wife; 1873, G. S., c. 113, 14);. Maine (1821, P. L. 137, 9, not re-enacted in R. S. 1871.) (For law of Massachusetts, see Sullivan v. Sullivan, 106 Mass. 474.) Michigan (1809, 2 T. L. 13 10; 1871, C. L., c. 154, 7); Missouri (1825, R. L. 790, 14; 1835, R. S. 617, ? 24; 1845, R. S. 1078, 41; 1855, R. S., c. 167, % 40; 1865, G. S., c. 131, 39; 1879, R. S., 3998); Nebraska (1856, P. L. 94, 86; 1873, G. S., c. 17, 130); New Jersey (1795, Pat. Rev. 190, 5; 1877, Rev. 1244, 5); New York (1787, 1 Greenl. 386, 7; 1829, 2 R. S. 56, 51); Ohio (1840, 38 L. 120, 11, not re-enacted); Oregon (1850, G. S. 274, & 41; 1855, P. L. 384, 41); Rhode Island (1857, R. S. 356, 14; 1872, G. S., 374, 14); South Carolina (1712, 2 Stats. at Large 401; 1873, R. S. 442, 6); Vermont (1797, Dig. L. 119, 1⁄2 10; 1851, Comp. S. 327, ? 12; 1862, G. S., c. 49, (1873, Code 913, 20); (1868, Code, c. 77, (1838, T. L. 182, 26.)

12); Virginia West Virginia 20); Wisconsin

Executor to

be admitted a witness.

thereof, 18

gon, and it is further provided that a witness who has released, or has been paid his claim under the will, or has died before payment or release, shall be competent, and such payment or release be a bar to all subsequent compensation (1850, G. S. 274, 38-45; 1855, P. L. 384, 38-45.) In Rhode Island a gift to a subscribing witness, other than a creditor in whose favor a charge is made, is void, and the witness is competent, or if witness die before the testator, he is competent (1857, R. S. 356, 13-15; 1872, G. S. 374, ?? 13-15.) In South Carolina the act of 1712 (2 Stats. at Large 401) puts in force the English statute of 25 Geo. II., c. 6. This was changed by act of 1858 (12 Stats. 597), so as to extend to husband or wife of witness, and by the Revised Statutes of 1873 (p. 442, ¿¿ 5, 6,) to a provision avoiding such gift to a witness, or the husband, or wife of a witness as to any excess over share in case of intestacy, but making the witness competent; so, too, a creditor whose debt is charged. In Texas a gift to a witness necessary to prove the will is void, and the witness competent, and the witness can take any share to which he would be entitled in case of intestacy, not exceeding such gift (1840, P. L. 167, ? 10; 1879, R. S., 4872); but since 1875 such gift is valid if satisfactory proof of the will can be made by some other, who is not a subscribing witness (1875, P. L. 179, 10; 1879, R. S., 4873.) In Vermont a gift to an attesting witness, other than an heir, is void unless there are three other competent witnesses, and the witness is competent (1797, Dig. L. 119, § 9; 1851, Comp. S. 327, 11; 1862, G. S., c. 49,

11.) The act of 1797 also provided, as that of 25 Geo. II., for the case of the gift being paid over or released before probate or the witness dying before the testator (Dig. L. 119, 28 11-14.) These sections are not in the later act. In Virginia a gift to a witness who is necessary to the proper execution of the will (or, since 1873, the wife or husband of a witness,) is void, except such share as the witness (or wife or husband) would take in case of intestacy (1785, 12 Stats. at Large 143, 9; 1873, Code 912, 19.) So in West Virginia, if the witness is necessary to probate (1868, Code, c. 77, { 18.) In Wisconsin a gift to a necessary (since 1849) witness is void, except only a charge of debt in his favor, and the witness competent (1838, T. L. 182, 25; 1849, R. S. 353, § 8; 1878, R. S., ¿ 2284.) By the earliest of said acts provision was made, as in 25 Geo. II., c. 6, for competency in case of payment, release or death of witness ( 27-29.) The witness may, however, take such share as he would have in case of intestacy (1849, R. S. 353, 9; 1878, R. S., ? 2285.) (e) Vol. I., pp. *73, *74.

18. This clause has been enacted in the District of Columbia (1857, Rev. Code, c. 52, 26.) Also in Kentucky (1851, R. S., c. 106, 15; 1873, G. S., c. 113, 15.) And North Carolina (1873, Batt. Rev., c. 119, 9.) In South Carolina where a witness is appointed executor, a gift to him in excess of legal commissions is void (1873, R. S. 442, 5.) In Virginia (1873, Code 913,

21,) an executor is a competent witness. So in West Virginia (1868, Code, c. 77, { 20.)

Will to be

marriage

(ƒ) Vol. I., p. *128; vol. II., p. *237. 19. For an account of the common law history of revocation by subsequent marriage and birth of issue, see the opinion of Chancellor Kent in Brush v. Wilkins, 4 Johns. Ch. 510, et seq. See also vol. I., pp. 268, 270, n., 271, n.

Independent of the statute of Victoria and before it, the marriage alone of a testatrix worked a revocation of her will. This was held as early as 1589, in Forse & Hembling's Case, 4 Rep. 61. Not so, however, the marriage alone of a man, Wellington v. Wellington, 4 Burr. 2171, (A. D. 1768.) In the absence of statute, this rule of the common law may be considered to be abrogated in those states which give a married woman unrestricted testamentary powers. As to such enabling acts, see note 8, supra. By statute in the United States marriage alone revokes the will of an unmarried woman in Alabama, Arkansas, California, Indiana, Missouri, Nevada, New York, Oregon, Pennsylvania, and formerly in Kansas and Nebraska; but the contrary is provided in Ohio.

In Connecticut the marriage alone of any testator revokes his will. This is also the case in Georgia, Illinois, Kentucky, Nevada (if wife survive), North Carolina, Rhode Island, Virginia and West Virginia; and formerly in Delaware.

By the civil law subsequent marriage and the birth of issue accomplished the revocation of any will. This rule was finally adopted by the common law in 1771 (see

vol. I., p. 276,) and was extended in 1793 (Doe v. Lancashire, 5 T. R. 49,) so as to include the birth of a posthumous child. It applies only where wife and issue were wholly unprovided for, and the whole of testator's estate was disposed of by the will; in such case, however, notwithstanding the subsequent death of the child before the testator. "Different views have been entertained of the principle on which this species of revocation rested. On the one hand it was considered that the revocation was grounded on the implied intention of the testator to revoke his will under the new state of circumstances which had taken place since the will was made, and upon such implied intention only, and although, perhaps no direct assertion to this effect can be attributed to any of the ecclesiastical judges (Sir H. Jenner Fust in Fox v. Marston, 1 Curt. 498,) it is difficult, if not impracticable to draw any other conclusions from the numerous decisions of the prerogative court connected with this subject, than that the revocation was to be regarded as grounded on an intention to be implied from the new state of circumstances, and new moral testamentary duties which had taken place since the will was made (4 Kent 523; 1 Phillim. 473; 1 Hagg. 711.) On the other hand, it was contended that the revocation was a consequence of a rule of law, or of a condition tacitly annexed by law to the execution of a will, that when the state of circumstances under which the will was made became entirely

altered by a subsequent marriage and the birth of a child, the will should become void; and that the operation of this rule of law was altogether independent of any intention on the part of the testator. And of this opinion were all the judges of England assembled in the exchequer chamber, absente Lord Denman, in the great case of Marston v. Roe dem. Fox (8 Ad. & El. 14; S. C., 2 Nev. & P. 504,) where it was solemnly decided that the revocation of the will took place in consequence of a rule or principle of law, independently altogether of any question of intention of the party himself. It follows, as an obvious consequence of this conflict of doctrine between the courts of ecclesiastical and common law jurisdiction that in the former courts, in order to rebut the presumption of an intention to revoke, it has always been held that any evidence is admissible in support of the will, which shows a contrary intention; so that, not only the evidence of circumstances has been received for this purpose, but also parol evidence of the testator's declarations in favor of his will (1 Phillim. 469; Gibbons v. Cross, 2 Add. 455; Fox v. Marston, 1 Curt. 494; Tapster v. Holtzappfelt, 5 Notes of Cas. 554.) Whereas in the temporal courts it was finally settled that no evidence of the testator's intention that his will should not be revoked, was admissible to rebut the presumption of law that such revocation should take place (Marston v. Roe dem. Fox, 8 Ad. & El. 14; S. C., 2 Nev. & P. 504.)" Wms. Ex'rs (6th Am. ed.) 231. Mr. Williams, however, adds that the rule of this last case is now extending to the ecclesiastical courts.

Marriage and birth of issue is a revocation by statute in Missouri, if the child survive the testator. So in Oregon; and if either wife or child survive the testator in Alabama, Arkansas, California, Nebraska, (formerly), New York, Pennsylvania and South Carolina. And all evidence to rebut this presumption is ex

cluded by statute in Alabama, Arkansas, California, Kansas, Ohio and Oregon; but permitted by statute of Kentucky. The statute of some states provides that there shall be no revocation by implication from change of circumstance, (see note 20, infra); or provides it by implication by enacting that there shall be no revocation except by execution of a new will or destruction of the old one, (seenote 21, infra.)

Birth of issue alone does not revoke a will at common law, although this is now so by statute in Connecticut, Delaware, Georgia and Louisiana, and was so in Illinois prior to 1845; in Indiana prior to 1852; in Missouri until 1825; and in Virginia. In other states such child takes a share as in case of intestacy, made up by contribution. This is so in Alabama, Arkansas, California, Colorado, Delaware, District of Columbia, Illinois, Iowa, (until restricted in 1873 to posthumous children), Michigan, Minnesota, Missouri, Nebraska, Nevada, New Hampshire, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, Texas, Vermont, West Virginia and Wisconsin; and unless the child die before actual payment of the share, in Alabama; or before the testator's death and leave no issue, in Indiana; or under age, unmarried and without issue, in Virginia (with reversion on death under age) and West Virginia.

As to after-born children, a distinction is sometimes made between the case where testator has other children at the time of making his will and the case where he has none, e. g., District of Columbia, Delaware, (formerly), Kansas, Kentucky, Michigan, (formerly), Mississippi, New Jersey, Ohio, Texas, Virginia (formerly) and West Virginia. In such latter case the will has no effect during the child's life, and is void unless he die unmarried and under age, in the District of Columbia and Texas; or unmarried, under age and without issue, in Kentucky,

Michigan (formerly) and Mississippi; or is revoked absolutely in Kansas, New Jersey and Ohio; while such will is revoked, unless he die unmarried and under age, in Florida. In the former case the after-born child takes a share as in case of intestacy, in Florida, Kansas, Kentucky, (with reversion on death under age, unmarried and without issue,) Mississippi, New Jersey, Ohio and West Virginia; and if he be dead, his issue take in like manner in West Virginia.

Omission of a child was formerly a revocation pro tanto in Arkansas and Missouri. In Kentucky such omission is absolutely a revocation if there be no other child living at the time of making the will, unless the omitted child die under age, unmarried and without issue; and in West Virginia, unless the child die unmarried and without issue. In some states an omitted child takes a share as in case of intestacy, unless a contrary intention appears. This is so in California, Kansas, (if absent or reputed dead), Michigan, Minnesota, Missouri, Nevada, New Hampshire, Oregon, Vermont and Virginia, and was so in Iowa until 1873. So now in Kentucky a child or grandchild believed to be dead. And this applies to the issue of a deceased child, omitted in California, Kansas and Missouri, and is confined to posthumous children in Massachusetts. In some states an omitted child takes a share as in case of intestacy, if no intention to omit him appear in the will as above. But others require the mistake to be apparent on the will, e. g., Minnesota, Nebraska and Wisconsin. In the District of Columbia an exception is made to this rule, if the omitted child die unmarried, under age and without issue.

death), if either wife or issue survive the testator, unless provision is made for them, or an intention not to make such provision is expressed, and no evidence can be received to rebut the presumption of revocation (1852, Code, 1597; 1876, Id., 2282); and marriage alone revokes the will of an unmarried woman (1852, Code, % 1598; 1876, Id., 2283.) And a child born after the making of a will and not mentioned in it takes a share of the estate as in case of intestacy, unless it die before receiving the same (1852, Code, 2 1599, 1601; 1876, Id., ¿? 2284, 2236; see, too, 1806, Toulm. Dig. 883, % 7, giving such share to a posthumous child.)

In Arkansas a will is revoked by marriage and birth of issue, or marriage alone, as in Alabama, supra, (1847, R. S., c. 170, 7, 8; 1873, R. S., 22 5766, 5767,) with the same provision as to conclusiveness of presumption. Prior to the revision of 1838 a will was revoked pro tanto by the omission of a child or by marriage alone, or birth of issue alone (whether posthumous or not), such wife, husband or issue taking a share as in case of intestacy (1815, Comp. T. L. 556, % 4.) So now an after-born child, or a child or the representative of a deceased child omitted in the will, takes a share as in case of intestacy (1847, R. S., c. 170, 2% 11, 12; 1873, R. S., ?? 5770, 5771.)

For these and other matters the statutes in question are more particularly set out as follows: