Goodsell's Appeal from Probate

Pardee, J. John Goodsell made his will in January, 1871, disposing of real and personal estate. He Avas married in the folloAving May; he died in 1886; his Avife survives; no child Avas born to them. A. brother and a nepheAV are next of kin. He left the Avill executed in 1871; it made no mention of his wife; she Avas not known to him Avhen it was executed. The court of probate approved the will and admitted it to probate. The widow, Sarah H. Goodsell, appealed. The Superior Court dismissed the appeal and affirmed the decree of the probate court. The Avidow and a nepheAV of the testator join in an appeal to this court. The reasons assigned are these :— 1. That the court did not hold that the statements and acts of the testator as set forth in the finding amounted to a revocation of the will, at least in so far as it disposed of personal estate. 2. That the court did not hold that the Avill was revoked by section 135, chapter 110, of the acts of 1885, nor by chapter 84 of the acts of 1875. 3. That the court did not hold that the will Avas reA'oked by the subsequent marriage of the testator, at least in so far as it disposed of personal estate. 4. That the court excluded the evidence offered by her in relation to her pecuniary condition as stated in the finding- By the common laAV marriage and the birth of a child revolted a Avill. Because of the strong affection of a father for his child and the presumed absolute dependence of the latter upon the former for the necessaries of life, Avhenever a man marries and a child is born to him and he dies, having made no .change in a will, executed previous to marriage, [179] •which contains no provision in behalf of such child, the law assumes that it does not speak his mind; that the will if made under the altered circumstances would have been different ; and sets it aside. Marriage without the birth of a child does not support such assumption, for the wife can protect herself by ante-nuptial contract and has dower. In 1 Redfield on Wills, 298, (4th ed.,) it is said:—“ The question was very elaborately reviewed at an early day by the most eminent of the American chancellors, and the conclusion reached upon a thorough examination of the cases from the days of Cicero forward, that the subsequent marriage and birth of a child are an implied revocation of a will, either of real or personal estate; but such presumptive revocation may be rebutted by circumstances. It seems' that a subsequent marriage or birth of a child alone will not amount to a revocation; both must concur. Brush v. Wilkins, 4 Johns. Ch., 506. The same conclusion was reached by Shaw, C. J., after a careful examination of the authorities in a case in Massachusetts. Warner v. Beach, 4 Gray, 162; 1 Jarman on Wills, 272, (5th Am. ed. with notes by Randolph & Talcott;) Card v. Alexander, 48 Conn., 504. Cases in Illinois and North Carolina have been brought to our notice, determining that marriage alone is a revocation, for the reason that if there had been no will the wife would have been entitled to a distributive portion of the husband’s estate; and the court assumes that the husband did not intend by will to put her in a worse condition than if he had made none. But we thiuk that the weight of authority is against revocation by marriage alone for the reason already given; and that the courts in many states in which the wife shares with the children in case of intestacy, are against revocation by marriage alone. In 1821 a statute was passed which provided that no devise of real estate should be revoked except by burning, canceling, tearing or obliterating it by the testator or by some person in his presence by his direction, or by a later will or codicil. Thereupon revocation by parol or by presumptions or inferences drawn from the pecuniary condition [180] of the wife, or from the manner or place of keeping a will, became and continued to be impossible until the statute of 1885 went into operation. The statute of 1821 applied to every will containing devises of real estate and every will containing both devises of real estate and bequests of personal property. That is, the presence of a devise of real estate protects the bequest of personal property from every other than statutory revocation, and, so far as that statute is concerned, when a testator executed a valid will for the disposition of both real and personal estate and subsequently married and died, leaving his will unchanged, even if it made no provision for the wife, the law did not revoke a part of it for the purpose of making it express what is assumed, contrary to his written declaration, to have been the real intent of the testator, because thereby would come into operation the assumption that the partial will was contrary to his plan for the division of his estate. Either the scheme of the law is to govern the distribution of the estate in its entirety or the scheme of the testator. A distribution the result of assumption in part and in part of fact, would be offensive both to the law and to the testator. In 1885 (Session Laws of 1885, eh. 110, sec. 135,) a statute was passed as follows : “ If, after the maldng of a will, the testator shall marry, or if a child is born to the testator, and no provision is made in the will for such contingency, such marriage or birth shall operate as a revocation of such will.” As a rule of interpretation all statutes are to operate prospectively unless they contain language unequivocally and certainly retrospective. The above statute looks forward and not backward. It can be said to be a remedial statute only in the sense that all statutes are passed because they are expected to benefit the public either by lifting burdens or conferring privileges. It is not the casting of a common law rule into the fixed form of a statute ; for there was no such rule in existence. It is the gift of a right to a wife to Remand and receive a greater share of her husband’s estate, under specified circumstances, than she previously [181] could receive. We may be of opinion that the right given to the wife in this statute should have been given to her long before; but that is not a valid reason why a law giving additional rights should operate retrospectively. Possibly estates in like situation with the one before us have been settled and property vested; possibly wrong would be inflicted if we should give retrospective effect to tins statute. There is no error in the judgment of the Superior Court. In tins opinion the other judges concurred.