contrary intention on the part of testatrix.116 In several states it has been held that this rule does not apply when the common-law restriction upon the right of a married woman to make a will no longer exists.117 An express statutory provision in accordance with the common-law rule has, however, been held not to be impliedly repealed by a statute giving testamentary capacity to married women;118 and the common-law rule has been regarded as confirmed by a provision, in the statute regarding the revocation of wills, that nothing therein contained shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator.119

By the common-law rule, generally recognized as in force in this country, in the absence of a statutory change, the marriage of a man, if followed by the birth of a child, revokes his will previously made.120 This rule is based, it is said, upon a tacit condition, annexed to the will, that, in case of such a total change in testator's circumstances, the will shall be void,121 and consequently evidence of a contrary intention on the part of the testator is, by the weightiest de

116 Nutt v. Norton, 142 Mass. 242; Hoitt v. Hoitt, 63 N. H. 498. 117 Ward's Will, 70 Wis. 251; In re Emery, 81 Me. 275, Chaplin, Wills, 313; Fellows v. Allen, 60 N. H. 439, 49 Am. Rep. 329; Webb v. Jones, 36 N. J. Eq. 163; Noyes v. Southworth, 55 Mich. 173, 54 Am. Rep. 359; Morton v. Onion, 45 Vt. 145; In re Tuller's Will, 79 Ill. 99. Contra, Swan v. Hammond, 138 Mass. 45.

118 Brown v. Clark, 77 N. Y. 369, Chaplin, Wills, 315; In re Kaufman's Will, 131 N. Y. 620, Chaplin, Wills, 317.

119 Shorten v. Judd, 60 Kan. 73; Swan v. Hammond, 138 Mass. 45. 120 1 Jarman, Wills, 110; Christopher v. Christopher, 2 Dickens, 445, 4 Gray's Cas. 390.

In New Hampshire it has been held that the marriage and birth of issue no longer effect a revocation, in view of the statute which gives to a widow and child not provided for in the will the same share as if decedent had died intestate. Hoitt v. Hoitt, 63 N. H. 498.

121 Kenebel v. Scrafton, 2 East, 530, 4 Gray's Cas. 394.

cisions, not admissible.122 The rule that marriage and birth of issue revokes the will does not, however, apply if the future wife and the issue of the marriage are provided for by the will,123 and occasionally, by statute, a provision for the issue alone is sufficient to prevent its application.124

The birth of a child does not, apart from statute, affect a man's previous disposition of his property by will.1 25

There are in most of the states express statutory provisions as to the effect of marriage or birth of issue in revoking a will. In some states a will is revoked by marriage and birth of issue, unless provision for such issue is made in the will or by settlement, or they are in such way mentioned in the will as to show an intention not to provide for them. In several states the marriage alone of the testator revokes the will, subject, in some states, to the condition that he leaves a widow for whom he does not provide by marriage settlement or in the will, or does not so mention her in the will as to show an intention not to provide for her. And in some states a will made before the birth of issue, which makes no mention of possible issue, is in effect revoked if the testator leave a child.126

Alienation of land.

The conveyance by the testator of land, which would oth

122 Marston v. Roe, 8 Adol. & E. 14, 4 Gray's Cas. 403; Chicago, B. & Q. R. Co. v. Wasserman (C. C.) 22 Fed. 872; Baldwin v. Spriggs, 65 Md. 373. See Nutt v. Norton, 142 Mass. 242; Hoitt Contra, Wheeler v. Wheeler, 1 R. I. 364.

v. Hoitt, 63 N. H. 498.

128 Kenebel v. Scrafton, 2 East, 530, 4 Gray's Cas. 394; Marston v. Roe, 8 Adol. & E. 14, 4 Gray's Cas. 403; Warner v. Beach, 4 Gray (Mass.) 162; Baldwin v. Spriggs, 65 Md. 373.

124 1 Stimson's Am. St. Law, § 2676(C).

125 Doe d. White v. Barford, 4 Maule & S. 10, 4 Gray's Cas. 402; Brush v. Wilkins, 4 Johns. Ch. (N. Y.) 506; Goodsell's Appeal from Probate, 55 Conn. 171. Contra, McCullum v. McKenzie, 26 Iowa,

510.

126 1 Stimson's Am. St. Law, § 2676.

When

erwise pass under a will previously made, necessarily withdraws such land from the operation of the will.127 there is merely a contract to convey, the vendor is, as before stated,128 a mere trustee for the purchaser, and the legal title alone passes under his previous devise of the land, the right to the purchase money passing, in the absence of statute, to the personal representative.129 In some states, however, the statute provides that, on the death of the vendor of land, the unpaid purchase money shall pass under the devise of the land, in place, as it were, of the land. 180

So far as the common-law rule that the will operates only on land owned by testator at the time of its execution may still remain in force in any jurisdiction, the reconveyance to testator of land conveyed by him after the making of the will cannot render the will operative as to such land.181 And, apart from any change in the law brought about by the modern statutes, a conveyance by the testator after the making of his will, if it transfers the legal title in fee simple, is effective as a revocation, even though, by the same instrument, another estate is created in favor of himself, as in the case of a declaration of trust in his own favor.132 Under the statutory rule which now prevails in England, and in most, if not all, of the states, that the will operates on such land as the testator has at the time of his death, a conveyance by testator after making his will cannot prevent the operation of the will upon the land conveyed, if it is recon

127 1 Jarman, Wills, 129.

128 Ante, § 110.

129 1 Jarman, Wills, 129, Bender v. Luckenbach, 162 Pa. St. 18; Skinner v. Newberry, 51 Ill. 203; Bruck v. Tucker, 32 Cal. 426. See ante, § 112.

130 1 Woerner, Administration, § 53.

181 1 Jarman, Wills (4th Ed.) 147.

182 Cave v. Holford, 3 Ves. 650; Brydges v. Chandos, 2 Ves. Jr. 417; Walton v. Walton, 7 Johns, Ch. (N. Y.) 258; Jones v. Hartley, 2 Whart, (Pa.) 103,

veyed or title is in any way revested in the testator before his death; and in many jurisdictions there is an express provision that a conveyance shall not prevent the operation of the will with respect to such an estate as testator has at the time of his death, unless, in some states, the intention to revoke is expressed in the conveyance."

133

A conveyance by a testator was held in England, as the law formerly stood, to effect a revocation, although the conveyance was void, either for want of capacity in the grantee, or for want of the proper formalities. 134 This rule is no longer in force in England, on the theory, it is said, that, as a valid conveyance no longer effects a revocation if the title. becomes revested in testator, one which is invalid can have no greater effect.135 In this country there seems to be no explicit decision that an invalid conveyance could in any case constitute revocation, though there are dicta to such an effect,136 and a conveyance which is voidable because procured by fraud has been here held not to cause a revocation.137

§ 418. Children or issue omitted from will.

In most states there is a statutory provision that, if a child living or leaving issue at the testator's death was born after the execution of the will, such child or issue shall take the share to which he or they would have been entitled if tes

138 Wills Act, 7 Wm. IV. and 1 Vict. c. 26, § 23; 1 Stimson's Am. St. Law, § 2810.

184 1 Jarman, Wills (4th Ed.) 165; Mountague v. Jeoffereys, Moore, 429, 4 Gray's Cas. 682; Hick v. Mors, Amb. 215, 4 Gray's Cas. 685.

185 1 Jarman, Wills, 133.

186 See Walton v. Walton, 7 Johns. Ch. (N. Y.) 258; Graham v. Burch, 47 Minn. 171; Bigelow, Wills, 134. But see Bennett v. Gaddis, 79 Ind. 347.

137 Graham v. Burch, 47 Minn. 171. Contra in England. Simp son v. Walker, 5 Sim. 1. See 1 Redfield, Wills (4th Ed.) 344.

tator had died intestate. In a number of the states, such a provision applies only in case the child or issue were not provided for otherwise by testator, or were not intentionally omitted.188 In a number of states, statutes of this character, entitling an omitted child to the share which he would have had if deceased had died intestate, are not restricted in their application to children born after the execution of the will, but apply in the case of any child, usually whether that child was omitted intentionally or unintentionally.1 139

419. Revival of will.

In the case of a will which is revoked by an express statement to that effect in a subsequent will, or by inconsistent provisions therein, the question has frequently arisen as to the effect of a subsequent revocation of the revoking will. In England it was held by the common-law courts that the effect was to "revive" or put in force again the provisions of the earlier will, if this had not been destroyed, on the theory that, as the second will had no operation until testator's death, if it was revoked it could not operate as a revocation of the earlier will.140 The ecclesiastical courts, however, held that the question of revival was one of intention purely, to be decided according to the facts and circumstances of the particular case.141 This question is there set at rest by the Wills Act, 142 which provides "that no will or codicil, or any part thereof, which shall be in any manner revoked, shall be revived otherwise than by the re-execution thereof,

1881 Stimson's Am. St. Law, § 2843.

1891 Stimson's Am. St. Law, § 2842. See Page, Wills, 291; 1 Woerner, Administration, § 55.

140 Goodright v. Glazier, 4 Burrows, 2512, 4 Gray's Cas. 434; 1 Jarman, Wills (4th Ed.) 136.

141 Moore v. Moore, 1 Phillim. 357; Usticke v. Bawden, 2 Addams, 116.

143 7 Wm. IV. and 1 Vict. c. 26, § 22.