Baldwin v. Spriggs

Stone, J., delivered the opinion of the Court. ■There is no dispute about the material facts in this case. ■James Spriggs, of Anne Arundel County, on the 25th of — 379 — July, 1865, duly executed his will. By that will he disposed of all the property, real and personal, which lie then owned. James Spriggs, at the time of the execution of the said will, had a wife, Euth Spriggs, then living, and several children by her also living: — By his said will he devised all his property to said wife and children. His wife Euth died in 1871, and said James soon after the death of said Euth, about 1874, intermarried with Maggie E. Vane, and also had by her several children. Said James Spriggs died in January, 1886, leaving, a widow, the said Maggie E. Spriggs, and a child by the said Euth, and children by the said Maggie E., surviving him. After the execution of the will, the said James Spriggs purchased certain other real estate which was unaffected by said will. His will as to his real estate contained no residuary clause, but disposed of all the real estate he owned at its date, by specific description. After the death of James Spriggs, his will was offered for probate in the Orphans’ Court of Anne Arundel, and a caveat was filed thereto by his second wife, Maggie E. Spriggs, in behalf of herself and her children, and upon such caveat plenary proceedings were had, and the Orphans’ Court ordered and decreed that said will was revoked by his subsequent marriage, and the birth of issue, and refused to admit the paper to probate. From this decree the daughter of the testator by his first wife, and two of his grandchildren have appealed to this Court. These are all the facts necessary to elucidate the legal proposition which we are called “upon fo decide, and which is simply, whether upon this state of facts, the will of James Spriggs has been revoked by operation of law. It would be a profitless task to review all the English cases on the subject. They may be found by the curious fully discussed by Chancellor Kent with his usual ability, in the case of Brush vs. Wilkins, 4 Johnson’s Chan. Rep., 506. It is enough for us to say that after a good deal of doubt and hesitation, it was finally — 380 — settled in England, before our Revolution, that marriage and issue taken together did amount to an implied revocation of a will previously made, and that süch implied revocations were not within the Statute of Frauds, hut that such implied revocations might be rebutted and controlled by circumstances. The final determination of the matter seems to have been reached by the cases of Christopher vs. Christopher, decided by the Court of Exchequer, Parker, C. B., presiding, in 1771, 2 Dickens, 445, and the case of Spraae vs~ Stone, decided in 1773, Ambler, 721. These cases appear to have definitely settled the law,, that a subsequent marriage and birth of a child standing alone, and unaccompanied by other circumstances, amount to an implied revocation of a will. The whole subject, says Chancellor Kent, has continued to receive great discussion in the English Courts since the era of our Revolution, growing out of new cases constantly arising amidst the endless variety of human affairs. The most important of the English cases since the Revolution, is the case of Marston vs. Roe, dem. Fox, decided in 1838, hy fourteen out of the fifteen English Judges, (8 Adol. & Ellis, 14,) where the general doctrine we have stated was re-affirmed. We will recur to this case again for another purpose. But we are not without decisive authority in our own State. The unreported case of Sedwick vs. Sedwick, decided at June Term, 1844, was a case similar to the one at bar, and the Court of Appeals decided that the subsequent marriage and birth of a child did revoke the will, and they affirmed the decree of the Orphans’ Court refusing it prohate. No opinion Was filed in the case although a large amount of property was involved, and the case was argued by some of the most eminent counsel in Maryland. But they did — 381 — flatly decide the question by a decree, declaring the will revoked by the subsequent marriage and birth of a child. But while such is the general rule, like other general rules, it has been held in England subject to some exceptions. Among the exceptions is the one where, the testator has made provision for his children born after the execution of the will. As the origin of the rule was the duty of the parent to provide for his offspring, this exception seems right and proper. Another matter upon which the English Courts have exercised themselves, is the determination of the ground upon which the doctrine of implied revocation ought to be rested. This is of practical importance in this case, and will require some examination. Lord Mansfield, in the case of Brady vs. Cubitt, 1 Douglas, 31, thought the rule should rest on the presumption that the testator intended to revolee Ms will, and that it therefore followed that such presumption might be rebutted by even parol evidence. To use his own words- that such presumption might be rebutted by “every sort of evidence.” But Lord Mansfield’s view seems to us irreconcilable with the Statute of Frauds. It would, in effect, allow the will to be revoked by the subsequent intention of the testator, without such intention being evidenced by the positive acts so expressly required by that Statute. That view leads to another difficulty, that the testator may change his first intention and adopt a contrary one, and if so, which of the two intentions is to prevail? ' The conclusion however that Lord Mansfield reached, that every sort of evidence was admissible, was but the logical consequence of the ground upon which he rested the rule, namely, — that of presumed alteration of intention. This case was decided in lTIS. But the Courts there, seem to have felt the difficulties that would result from such a view, and Lord Kenton, in — 382 — Doe, dem. Lancashire vs. Lancashire, 5 Term Rep., 49, decided in 1792, placed the rule Tipon another ground, namely, — a tacit condition annexed to the tvill when made, that it should not take effect if there should be a total change in the situation of the testator’s family. This view of Lord Kenyon was afterwards adopted by Lord EllenboroUgh, in the case of Kenebel vs. Scrafton, decided in 1802, 2 East, 534. Finally the Court, in Marston vs. Roe, dem. Fox, heretofore cited, unanimously adopted the views of Lord Kenyon, and it may now be considered as settled in England, that the doctrine of implied revocation rests upon the ground of a tacit condition annexed to the will when made, that it should not take effect if there should be a total change in the situation of the testator’s family. In this we concur. If we adopt the English rule, that the will is not revoked if the testator makes provision for the children of the subsequent marriage, the -question arises in the case at bar, whether he can be considered to have made such provision, by the purchase of the property acquired by him between the date of his will and his death. This question must be answered both upon reason and authority, _in the negative. The testator disposed of all the property he then owned by his will; but he lived twenty years after its date, and in the meantime purchased other real estate, which the children of the second wife would share with those of the first. But the mere accumulation of additional property, cannot, upon any ground of reason, be considered a provision made by the testator for the second set of children, any more than for the first set, as the latter are equally benefited by it. The injustice of considering after-acquired property a provision for the second children, will be the more readily seen if we consider a case, (and such — 383 — have frequently occurred) where the beneficiaries under the will were comparative strangers, or remote collaterals. Again, if after-acquired property should be held a provision for the after-born children, how much property must be so acquired ? It could hardly be said that the purchase of an acre of poor land, or a cow or horse could be so considered, and if not, by what rule should the value of such property be estimated ? But we are not without authority on this subject. In Marston vs. Roe, dem. Fox, above cited, the point was. made, that an after-purchased estate did not pass by the will, but descended to the son in fee, and thereby.became a provision for him and prevented the revocation; but in answer to this objection the Court said: “In the first place we answer that no case can be found in which after-acquired property,descending upon a child,, has been allowed to have that effect, and indeed such a proposition seems incompatible with the nature of a condition annexed to the will.” To determine that after-acquired property was a provision for the after-born child, would Ije totally inconsistent with the theory, that the rule of implied revocation rests upon the tacit condition annexed to the will when, made, that it should not take effect if there should be a total change in the situation of the testator’s family. Instead of the change in the family, it would make a change in the property, one of the essential elements to determine the implied revocation. The will of the successful testator would stand, that of the unfortunate would be revoked. Upon the whole case presented by the record before us, we are of opinion that the testator having disposed of the whole of the estate owned by him at the date of his will, and having again married and had children by his second wife, and having made no provision for such chil — 384 — •dren, that his will was revoked hy operation of law, and ■that the order of the Orphans’ Court must be affirmed. (Decided 22nd June, 1886.) Order affirmed, the costs to be paid out of the estate.