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Webster v. Webster, Graves v. Sheldon, Blandin v. Blandin, and Balliet's Appeal, supra; Brush v. Wilkins, 4 Johns. Ch. (N. Y.) 507, 518, 519; Wogan v. Small, 11 Serg. & R. (Pa.) 141, 145; Vandemark v. Vandemark, 26 Barb. (N. Y.) 416; Verdier v. Verdier, 8 Rich. Law (S. C.) 135. "A merely general change in the testator's circumstances, as it regards the amount and relative value of his property, will not in general, if ever, have the effect to revoke a will, since. the testator, by suffering it to remain uncanceled, does in effect reaffirm it, from day to day, until the termination of his conscious existence." 1 Redf. Wills, 298.

The conclusion, then, is that the subsequent changes in the circumstances of the testator, his family and estate, do not imply a revocation of his will. To effect a revocation both the English and New Hampshire statutes require certain specified things, which are lacking in this case, to be done, and not merely contemplated or even actually intended to be done. *

The rule for which the appellee contends is that a revocation may be proved or disproved by any circumstantial evidence showing the testator's intention; but the precedents do not support the contention. On the contrary, after a most thorough examination of the cases reported before the enactment of the New Hampshire statute, it was unanimously held in Marston v. Roe, 8 Adol. & E. 14, by the 14 judges sitting in the cause, that implied revocation takes place in consequence of a rule or principle of law, independently altogether of any question of intention; and there is no reason to suppose that the Legislature of 1822 took a different view of the reported cases. If their purpose was to make intention of itself a ground of revocation, and thus inevitably invite litigation and "produce infinite uncertainty and delay in the settlement of estates," the presumption is that the statute would have been drawn accordingly.

Even Johnston v. Johnston, 1 Phillim. 447, upon which great stress has been laid by the appellee, while holding the subsequent birth of a portionless child to be an indispensable requisite which would effect a revocation when aided by other circumstances, and a subsequent marriage not to be an essential requisite, does not hold that the revoking intent may be inferred from a general change of circumstances simply, but makes the controlling principle rest upon new moral obligations and family ties arising after the making of the will, and thus limits. its application to cases of subsequent marriage or birth in which the wife or child would otherwise be left without provision for support. This case, however, is not relevant, the will being one of personalty only, and the decision being made by an ecclesiastical court, unincumbered by statute provisions; and if it were relevant, its governing principle, when applied to this case, would be fatal to the appellee, for the reason that no child was born to the testator subsequently to the execution of his will.

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This being so, it is of no practical consequence here whether the doctrine of implied revocation rests upon the fact of a changed intention, as held in Johnston v. Johnston, or takes place in consequence of a rule or principle of law founded on a tacit condition annexed to the will itself when made, independently altogether of any question of intention, as held in Marston v. Roe; for the application of either principle to the facts of this case leaves the will unrevoked, because they fail to bring it within any of the exceptions introduced by the ecclesiastical or common-law courts.

The proffered oral declarations of the testator to the effect that he understood the will was revoked, were rightly rejected. The mere understanding of a testator cannot revoke his will, for legal requirements cannot be thus abrogated; nor can his oral declarations, for wills cannot be revoked by parol; nor, upon the great weight of authority, are such declarations evidence, unless they accompany some act of revocation, and thereby become a part of the res gesta. Jackson v. Kniffen, 2 Johns. (N. Y.) 31, 3 Am. Dec. 390; Dan v. Brown, 4 Cow. (N. Y.) 483, 15 Am. Dec. 395; Clark v. Smith, 34 Barb. (N. Y.) 140; Waterman v. Whitney, 11.N. Y. 157, 62 Am. Dec. 71; Randall v. Beatty, 31 N. J. Eq. 643; Lewis v. Lewis, 2 Watts & S. (Pa.) 455; Hargroves v. Redd, 43 Ga. 142, 160; Gay v. Gay, 60 Iowa, 415, 14 N. W. 238, 46 Am. Rep. 78; Rodgers v. Rodgers, 6 Heisk. (Tenn.) 489; Smith v. Fenner, 1 Gall. 170, Fed. Cas. No. 13,046; Doe v. Palmer, 16 Adol. & E. 747; 2 Greenl. Ev. (9th Ed.) § 690; Abb. Tr. Ev. 124; 2 Starkie, Ev. (3d Ed.) 1286; 1 Redf. Wills, 331.

Such declarations, also, were not competent, upon the testator's intention not to pass by his will after-required real estate. If a contrary intent is inferable from the will itself, it cannot be disproved by extrinsic evidence. If it is not thus inferable, and may be ascertained by the weight of competent evidence, his declarations are not a part of such evidence.

Decree of the probate court reversed. Will allowed.

HILPIRE v. CLAUDE et al.

(Supreme Court of Iowa, 1899. 109 Iowa, 159, 80 N. W. 332, 46 L. R. A. 171, 77 Am. St. Rep. 524.)

GIVEN, J. *** 5. Having found that under the Code of 1873 the subsequent birth of a legitimate child to the testator before his death operated as a revocation of his prior wills, we now inquire. whether the adoption of a child has the same effect. This question is before this court for the first time, and, owing to differences in the statutes of this and other states, we find but little aid in the deci

40 Part only of the opinion is given.

sions of other courts. The language of our statutes is very broad, the adoption conferring upon the adopted child, "all the rights, privileges, and responsibilities, which would pertain to the child if born to the person adopting it in lawful wedlock." Code 1873, § 2307. As if to emphasize this language, it is further provided that "the rights, duties and relations between the parent and child by adoption, shall, thereafter [i. e., after the execution, acknowledgment, and filing of record of such instrument], in all respects, including the right of inheritance, be the same that exists by law between parent and child by lawful birth." Id., § 2310.

Plaintiff cites several cases wherein the right of adopted children to inherit from and through the adopting parent was passed upon, but in none of them is the question before us considered. In Wagner v. Varner, 50 Iowa, 532, it was held that the adopted child could inherit from his natural parents. In Warren v. Prescott, 84 Me. 483, 24 Atl. 948, 17 L. R. A. 435, 30 Am. St. Rep. 370, it was held that an adopted child can take a legacy given to one of its adopting parents, and thus prevent the legacy from lapsing when the legatee dies before the testator. Other cases cited are equally foreign to the question under consideration.

This question was directly considered in Davis v. Fogle, 124 Ind. 41, 23 N. E. 860, 7 L. R. A. 485. The court says: "The question presented for decision is, does the adoption of a child, under the statute of this state, operate to revoke an antecedent will of the adopting father, he having made no provision in the will or otherwise for such. adopted child?" The statute of that state provides that from and after adoption such child "shall be entitled to and receive all the rights and interest in the estate of such adopted father or mother, by descent, or otherwise, that such child would do if the natural heir of such adopted father or mother." Rev. St. 1881, § 825. It is said, "But we think the statute relating to the revocation of wills is decisive of the question involved in this case;" and it was held that as that statute did not provide that the adoption of a child should operate as a revocation of a prior will, and as revocations can be only made as provided, the will was not revoked by the adoption of the child.

We have seen that, under the Code of 1873, revocations of wills were not limited to the modes provided in section 2329. Therefore the Case of Davis is not authority for the same conclusion in this case. The same is true of In re Gregory's Estate, 15 Misc. Rep. 407, 37 N. Y. Supp. 925. The statute under consideration in that case contained several exceptions to the child's right to inherit, while ours contains none. In Re Comassi's Estate, 107 Cal. 1, 40 Pac. 15, 28 L. R. A. 414, a married woman had executed her will, and thereafter, and after the death of her husband, remarried; and the question was whether her marriage had the effect of revoking her will, under a certain statute, and it was held that it did not. The will was contested by a child that had been adopted prior to its execution, and solely

upon the claim that the marriage revoked it. In Davis v. King, 89 N. C. 441, the question was whether a petition and decree of court whereby Richard W. King adopted his illegitimate son were admissible in evidence to show a revocation of the will offered for probate. The court held that wills could only be revoked as provided by statute, and that as the transcript offered did not purport to be a testamentary paper, nor to contain revocatory words, it was inadmissible.

In Re Sunderland's Estate, 60 Iowa, 732, 13 N. W. 655, the child was adopted by W. P. Sunderland and wife under a special act of the General Assembly of Louisiana providing that the child shall inherit from the adopting parents, "as if she were their legitimate child, without prejudice to forced heirs, if any there be." Laws 1860, p. 131. It was also provided that, should the child survive the parents and die without issue, then all the property she may have inherited from either of said parents should pass to the heirs of said parents. W. P. was the son of John Sunderland, and died before his father. The adopted child claimed that, as child of W. P., she was entitled to inherit his share of his father's estate, under section 2454 of the Code of Iowa of 1873, which is as follows: "Grandchildren. If any one of his children be dead, the heirs of such child shall inherit his share in accordance with the rules herein prescribed in the same manner as though such child had outlived his parents." This court, resting the case solely upon said special act, held that the adopted child had no right to share in the estate of John Sunderland.

In Sewall v. Roberts, 115 Mass. 262, A. had in 1825 made a voluntary conveyance (without reserving any power of revocation) of personal property to an annuity company in trust to pay the income to him for life, and upon his death to be transferred to his administrator in trust for the special use and benefit of his children, and, in case he died without issue, then to his mother, if she survived him, and, if not, then to his or her heirs equally, In 1865 he adopted a child. "Held, also, that the adopted child took the remainder of the property as a 'child,' under the settlement, as one of the legal consequences and incidents of the natural relation of parents and children."

It is manifest that these cases fall short of determining the question under consideration, and we are not referred to, nor do we find, any one that does. Our statute, in declaring the rights of adopted children, does not contain any exceptions, as do those to which our attention has been called, and it is difficult to conceive of language that would more clearly place them upon the same level in all respects with children of lawful birth. The reasons for the rule that subsequent birth of a legitimate child to the testator before his death operates as a revocation of his prior will apply with equal force to a subsequent adoption under a statute like ours, containing no exceptions or qualifications, and declaring that the rights, duties, and relations between parent and child by adoption shall "in all respects, including the right of inheritance, be the same that exist by law between parent and child

by lawful birth." While these relations and rights are statutory, and may not be enlarged beyond the plain meaning of the statute, that meaning should not be defeated by any strained construction.

We conclude that it is the legislative intention to place adopted children upon the same level as children of lawful birth, in all respects and therefore that the decree of the district court should be reversed.1

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DONALDSON v. HALL et al. (HALL, Intervener).

486

(Supreme Court of Minnesota, 1909. 106 Minn. 502, 119 N. W. 219, 20 L. R. A. [N. S.] 1073.)

BROWN, J. The facts in this case, as disclosed by the findings of the trial court, are as follows:

In 1893 George W. Hall, then a widower about 56 years of age, with several children, intermarried with Matilda Hall, appellant here. in, who was about 30 years of age, and thereafter they continued to live together as husband and wife until some time in October, 1906, when a separation took place. No children were born to them. Subsequent to the marriage, in April, 1904, Hall duly made and executed his last will and testament, in and by which, after directing the payment of his just debts and funeral expenses, he granted, devised, and bequeathed "unto my wife, Matilda Hall, one-third of the remainder of my property, both personal and real, which shall remain after the payment of my debts aforesaid," one-sixth of what was left to certain daughters by his former wife, and the remainder, after the payment. of certain specified legacies, to his sons of the former marriage.

Thereafter, in October, 1906, Hall commenced an action for divorce, charging his wife with adultery, in which she answered, denying the charge made against her. During the pendency of this action the parties, guided by their attorneys, entered into certain negotiations for the settlement of their property rights in the event a divorce was granted in the pending action. By the arrangement then made Hall agreed to pay to his wife the sum of $4,225 in money and to convey to her certain real estate in the city of Hutchinson, and the wife. agreed to convey to him a small tract of land near Stewart, their place of residence. The deeds were duly executed, and the money so agreed to be paid delivered to a third person, to be by him delivered to the parties in accordance with the terms of the settlement immediately upon the entry of a decree of divorce. It was further understood and agreed, as a part of the settlement, that the wife should amend her answer in the divorce action by including therein a cross-bill for a

41 See, also, Glascott v. Bragg, 111 Wis. 605, 87 N. W. 853, 56 L. R. A. 258 (1901); Sandon v. Sandon, 123 Wis. 603, 101 N. W. 1089 (1905).

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