This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
173, 54 Am. Rep. 329; Kelly v. Stevenson, 85 Minn. 247, 56 L. R. A. 754, 89 Am. St. Rep. 545: Fellows v. Allen, 60 N. H. 439, 49 Am. Rep. 329; Webb v. Jones, 36 N. J. Eq. 163; Morton v. Onion, 45 Vt. 145; In re Lyons, 96 Wis. 339, 65 Am. St. Rep. 52; Contra, Swan v. Hammond, 138 Mass. 45.
93. Brown v. Clark, 77 N. Y. 369; In re Kaufman's Will. 131 N. Y. 620.
94. Shorten v. Judd, 60 Kan. 73, 57 Pac. 938; Swan v. Ham mond, 138 Mass. 45; In re Booth's Will, 40 Ore. 151. 61 Pac. 1135 ,66 Pac. 710.
95. 1 Jarman, Wills, 110 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,96 and consequently evidence of a contrary intention on the part of the testator is, by the weightiest decisions, not admissible.97 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,98 and occasionally, by statute, a provision for the issue alone is sufficient to prevent its application.99
The birth of a child does not, apart from statute, affect a man's previous disposition of his property by will.1
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
Christopher v. Christopher, 2 Dickens, 445.
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.
96. Kenebel v. Scrafton, 2 East, 530; Baldwin v. Spriggs, 65 Md. 373, 5 Atl. 295.
97. Marston v. Roe, 8 Adol. & E. 14; Chicago, B & Q. R. Co. v. Wasserman (C. C.) 22 Fed. 872; Baldwin v. Spriggs, 65 Md. 37?, 5 Atl. 295. See Nutt v. Norton, 142 Mass. 242, 7 N. E. 720; Hoitt v. Hoitt, 63 N. H. 475, 56 Am. Rep. 530, 3 Atl. 604. Contra, Wheeler v. Wheeler, 1 R. I. 364.
98. Kenebel v. Scrafton, 2 East, 530; Marston v. Roe, 8 Adol. & E. 14; Warner v. Beach, 4 Gray (Mass.) 162; Baldwin v. Spriggs, 65 Md. 373, 5 Atl. 295.
99. 1 Stimson's Am. St. Law, Sec. 2676(C).
1. Doe d. White v. Barford. 4 Maule & S. 10; Good sell's Appeal from Probate, 55 Conn. 171, 10 Atl. 557; Swan v. Hammond, 138 Mass. 45; Brush v. Wilkins, 4 Johns. Ch. (N. Y.) 506. Contra, Mccullum v. Mckenzie, 26 Iowa, 510; Nesus v. Negus 46 Iowa, 487, 26 Am. Rep. 157.
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 leaves a child.2
- Alienation of land. The conveyance by the testator of land, which would otherwise pass under a will previously made, necessarily withdraws such land from the operation of the will.3 "When there is merely a contract to convey, the vendor is, as before stated,4 a 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.5 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.6
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.7 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, otherwise
2. 1 Stimson's Am. St. Law, Sec. 2676; 1 Woerner, Administration, Sec. 55. See Shackelford v. Washburn, 180 Ala. 168, 60 So. 318, 43 L. R. A. (N. S.) 1195.
3. 1 Jarman, Wills, 129.
4. Ante, Sec. 125.
5. 1 Jarman, Wills, 129, Walton v. Walton, 7 Johns. Ch. (N. Y.) 258 11 Am. Dec. 456; Bender v. Luckenbach 162 Pa. St. 18, 29
Atl. 295, 296; Skinner v. New berry, 51 111. 203; Bruck v. Tucker, 32 Cal. 426. See ante, Sec. 127.
6. l Woerner, Administration, Sec. 53.
7. 1 Jarman, Wills (4th Ed.) 147; Philippe v. Clevenger, 239
111. 117. L6 A.& E Ann. Cas. 207, 87 N. E. 858; M irey v. Sohler, 63 N. H. 507. 56 Am. Rep.
Than by way of mortgage,8 if it transfers the legal or equitable title in fee simple, is effective as a revocation, even though, by the same instrument, the title is immediately revested in him.9 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-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.10
A conveyance by a testator was held in England, as the law formerly stood, to effect a revocation of a devise of the land conveyed, although the conveyance was void, either for want of capacity in the grantee, or for want of the proper formalities, on the theory, it seems that such an attempted conveyance shows an intention that the devise shall never be operative.11 This rule is no longer in force in England, for the reason, 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.12 In this country there seems to be no explicit decision that an invalid conveyance could in any case effect a revocation, but there are dicta to such an effect.13 And on such theory, or one analogous thereto, a revocation has been regarded as effected by a conveyance delivered on a condition which was never satisfied.14 A conveyance which is voidable because procured by fraud has in two states been decided not to cause a revocation.15
8. Jackson v. Parker, Ambl. 687; Baxter v. Dyer, 5 Ves. Jr. 656; Mctaggart v. Thompson, 14 Pa. St. 149. This is by reason of the fact that a mortgage is in equity merely a security or lien.
9. Cave v. Holford, 3 Ves. 650; Brydges v. Chandos, 2 Ves. Jr. 417; Krieg v. Mccomas, 126 Md. 377, 95 Atl. 68; Walton v. Walton, 7 Johns. Ch. (N. Y.) 258, 11 Am. Dec. 456; Jones v. Hartley,
2 Whart. (Pa.) 103; See Ballard v. Carter, 5 Pick.' (Mass.) 112, 16 Am. Dec. 377.
10. Wills Act, 7 Wm. IV. and 1 Vict. c. 26, Sec. 23; 1 Stimson's Am. St. Law, Sec. 2810.
11. 1 Jarman, Wills (4th Ed.) 165; Mountague v. Jecifereys Moore, 429; Hick v. Mors, Amb. 215; Walton v. Walton, 7 Johns. Ch. (N. Y.) 258, 11 Am. Dec. 456.
12. 1 Jarman, Wills, 133.