In re Tuller.

property. We are of opinion, then, that, since the act of 1861, the will of a feme sole is not revoked by marriage, the reason of the rale no longer existing. Her will, then, in this respect, must be regarded as standing upon the same footing with the will of a man. As respects his will, marriage is not a revocation of it, but marriage and the birth of a child are an implied revocation of a will previously made. Such was recognized by this court to be the rule in Tyler v. Tyler, 19 Ill. 151, and the authorities there referred to. But it was there held that, 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, marriage 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 the marriage.

It is insisted that the present case falls within that decision, and is controlled thereby.

The facts of that case were, that Stephen H. Tyler and the complainant in the suit 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 in this State; and that the defendants claimed his estate under a will executed in the State of Connecticut, where Tyler then lived, in 1834; which will devised his entire estate to his blood relatives. Under such circumstances, in view of our Statute of Descents, providing that, when there shall be a widow, and no child or descendant of a child of the intestate, then the one-half of the real estate, and the whole of the personal estate shall go to such widow, it was held that the marriage was a revocation of the will.

The reason of the rule of the English courts, that marriage and the birth of a child were, but that marriage alone was not, a revocation of a will, was recognized to be, that, by the law of descents there, the child may inherit the parents' estate, but that the wife and husband could not inherit from each other. But that, as under our law, the wife and husband may inherit from each other the onehalf of each other's lands, in case there be no child or lineal descendant, the reason of the common-law rule would require that marriage alone would revoke a will, and the rule was made to conform to the reason of it, and it was held that marriage alone worked a revocation of the will. In that case there was no child

In re Tuller.

of the marriage, and from the instant of the marriage, upon the death of the husband without a will, one-half of his real estate, and all his personal estate, would have gone to the widow.

In the present case, the testatrix, at the time of the making of her will, and up to the time of her death, and since, had three children living. Had she died at any time during the existence of her marriage, all her property, in the absence of a will, would have gone to these children, and none of it to her husband. Where is the reason, then, to inquire, in such a case as this, that marriage alone should revoke the will?

Under the laws of this State, in force when the will was made, and since, Hosmer, the husband, could have taken nothing, if there had been no will. The property disposed of by the will was the separate estate of the testatrix. No estate by the curtesy ever became initiate. The marriage did not vest in the husband the personal property of the wife, nor any right to the rents and profits of the real estate, and as his wife had children of her own by her first husband, to inherit, he, Hosmer, could take nothing as her heir at her death.

The sole effect of the revocation would be, to let others inherit her property whom the testatrix had in her mind when she made her will, and purposed should not take her estate. To set aside the will would be to thwart the solemnly declared intention of the testatrix, and that, without benefit to the object of the marriage relation, on whose account, as a new object of duty to be provided for, the revocation of the will would be brought about.

The revocation of a will which arises from subsequent marriage and birth of a child is an implied or presumptive revocation. It is founded upon the reasonable presumption of an alteration of the testator's mind, arising from circumstances since the making of the will, producing a change in his previous obligations and duties. 4 Kent's Com. 521.

Under the general rule, the circumstance of marriage alone did not lay the foundation of a presumed alteration of the testator's intention, but it was marriage and the birth of a child, and both must have concurred in order to raise an implied revocation of a will. Brush v. Wilkins, 4 Johns. Ch. 506.

There was a qualification of the general rule upon this subject, made in the case of Sheath v. York, 1 Vesey & Beames, 390, which bears strongly upon the present case. A widower, having a son

In re Tuller.

and two daughters, devised his estate real and personal, and then married and had a daughter. The Ecclesiastical Court held the will to be revoked as to the personal estate, but Sir WM. GRANT thought there was no ground to presume the will revoked as to the real estate, upon any implied condition annexed to it, or upon any presumed change of intention, where the testator had already an heir apparent, and the revocation would be of no use to the subsequent child, who could not take the land. It might be revoked as to the personal estate, for that lets in the subsequent child; but he held that it was not, in such a case, revoked as to the land.

The principle of that decision seems to meet precisely the question now under consideration, and to require a qualification of the general rule laid down in Tyler v. Tyler, supra, that under our Statute of Descents, a subsequent marriage is a revocation of a will, and to exclude the application of the rule to the facts of the present case, for the reason that there is no ground to presume the will revoked upon any presumed change of intention, inasmuch as the testatrix had, at the time of the making of the will and ever after, three children, and, as was said in Sheath v. York, supra, the revocation would be of no use to the subsequent husband, as he could not take the property.

But it is said that it does not matter whether the husband or wife do actually become heir to the other or not; that it is enough that the marriage creates the possibility of such a result. But that is not the principle which governs. If it were, then, under the common-law rule upon the subject, marriage alone would work a revocation, as, upon a marriage, there would exist the possibility of the birth of a child; and in the case cited of Sheath v. York there was a possibility of the daughter of the subsequent marriage becoming an heir by the death of the son of the former marriage. It is supposed in the argument to be like the case of a child born after a subsequent marriage. where it does not matter whether it survives the parent or not; and it is said that there the birth of the issue, and the mere possibility of its becoming an heir by surviving its parent, at once revokes the will.

It is the occurrence of new social relations and moral duties arising by marriage and the birth of issue, raising a presumption of a change of intention in the testator, which impliedly revokes a previous will, and the revocation so made by the occurrence of those events is once for all, and the will is not restored on the VOL. XXII. - 22

In re Tuller.

subsequent death of the issue contributing to produce the revocation, during the life of the testator.

But under the state of facts in this case there has been no actual occurrence of the circumstances to afford ground of a presumed intention to revoke the will, but only a possibility of such an occurrence taking place.

It is finally insisted, that there is here a statutory revocation of the will by force of the statute of 1872, Laws 1871-2, p. 355, in force July 1, 1872, that "a marriage shall be deemed a revocation of a prior will;" that, as the will did not take effect, nor were any rights acquired under it, until the testatrix's death, its validity depends upon the law as it then stood at the time of her death; that the statute, though passed after the making of the will, takes effect upon it precisely as though the law had been passed before its execution.

The question is not so much whether the statute affects rights vested before its passage, as, what was the intention of the legislature. A law is a rule of civil conduct, and the principle is, that it is a rule for the regulation of future conduct. It is, in general, true, that no statute is to have a retrospect beyond the time of its commencement; for the rule and law of Parliament is that nova constitutio futuris formam debet imponere, non præteritis. 4 Bac. Abr. 636, Statute (C.)

It is the doctrine applicable to all laws, that, generally, they are to be considered as prospective, and not to prejudice or affect the past transactions of the citizen. Not that the legislature cannot, in some cases, make laws with a retrospective operation, but that it is not to be supposed they so intended, unless that intention has been manifested by the most clear and unequivocal expressions. Garrett v. Wiggins, 1 Scam. 335; Bruce v. Schuyler, 4 Gilm. 221; Thompson v. Alexander, 11 Ill. 54; Marsh v. Chesnut, 14 id. 223 ; Hatcher v. Toledo, Wabash and Western Railroad Co., 62 id. 477; Whitman v. Hapgood et al., 10 Mass. 447; Somerset v. Dighton, 12 id. 383; Dash v. Van Kleek, 7 Johns. 477; Sedgwick on Stat. and Const. Law, 190-1 et seq.

This law of 1872 is not retrospective in terms; there is no indication of the legislative intention that it should be retroactive, and we must regard the intention to have been that it should have only a prospective, and not a retrospective, operation.

We are of opinion, then, that the enactment which went in force

Craft v. McConoughy.

July 1, 1872, that "a marriage shall be deemed a revocation of a prior will," was prospective in effect, and had reference only to marriages which should take place thereafter, and did not apply to marriages which had been had prior to the passage of the act, and that it is without effect upon this will of Mrs. Tuller.

Our conclusion is, that the court below erred in reversing the order of the County Court, instead of affirming the same, and that the judgment of the Circuit Court should be reversed and the cause remanded.

Judgment reversed.

CRAFT V. MCCONOUGHY.

(79 Ill. 846.)

Contract — against public policy — combinations to control trade.

The grain dealers of a town entered into a contract, which purported to be a contract of partnership for the purpose of dealing in grain, but the real object of which was to form a secret combination to control the grain trade, and suppress competition. Held, that the contract was against public policy and void.

ILL in equity for an accounting. The opinion states the case.

BILL

M. D. Hathaway, William Barge and Sherwood Dixon, for plaintiffs in error.

James K. Edsall, for defendant in error.

CRAIG, J. This was a bill in equity, brought by James O. McConoughy against Richard C. Craft and others, for an account and distribution of the profits of an alleged partnership claimed to have existed under a written contract to the following effect:

"Articles of agreement made and entered into this 20th day of April, A. D. 1869, between the following persons, viz.: E. P. Sexton, Dr. John McConoughy, C. B. Boyce, R. C. Craft and William Wiswell, for the purpose of systematically pursuing the grain trade in Rochelle, and for mutual protection against losses. The said parties covenant and agree to enter into the grain trade for one