Deupree v. Deupree

(This case was argued at the July Term, 1871, and the decision withheld until January Term, 1872. Chief Justice Lochrane in the meantime resigned, and Justice Warner was appointed to fill the vacancy, and Justice Montgomery was appointed to the vacancy created by the promotion of Chief Justice Warner. Justice McCay did not preside upon the first trial. The case was again argued before a full Bench, at the January Term, 1872.) 1. The marriage of a testator or the birth of a child to him-subsequent to the making of a will, in which no provision is made in contemplation of such an event, is, by presumption of law, a revocation of the will, and this presumption cannot be rebutted by any declarations of the testator, whether by parol or in writing, at the time of the marriage, or even by a settlement on the wife, and a renunciation by her of all interest in the estate of the husband, unless the declarations or provisions be testamentary in their character, and be executed by the testator with the forms and solemnities required for making a will. 2. A paper testamentary in its nature does not require for its due execution, an attesting clause declaring it a will, and reciting its execution according to the terms of the statute, pointing out how wills shall be executed. If it be subscribed by the testator, in the presence of the witnesses, and be attested and subscribed by them in his presence, it is sufficient. 3. If a testamentary paper be proven by the witnesses to have been subscribed by the testator in their presence, and they further state that they signed as witnesses, immediately thereafter, but they are unable, from want of recollection, to state affirmatively whether the testator remained in the room or not whilst they were subscribing, and seven or eight years have elapsed, there is a presumption of law, arising from the fact of attestation, that it was duly attested, and it was error in the Court to charge the jury that this presumption did not arise, unless the attestation clause recited the presence of the testator during the subscription of the witnesses. 4. Where there is an erroneous charge given to the jury a new trial ought to be granted, unless the evidence is so decidedly in favor of the verdict, that the jury must have found the same verdict even if the law had been correctly charged. Witness cannot be compelled, in civil causes to attend Court out of the county of their residence. (R.) It is in the power of parties under the direction of the Court to present the original paper propounded as a will to witnesses residing out of the county of the trial, by interrogatories. (R.) The widow who was a party to a marriage contract with her deceased husband, which, together with another instrument, was subsequently propounded as his will, is a competent witness upon the trial of a caveat to the same, especially when she has barred herself from taking anything from his estate. (R.) The answer of a witness being full to the material import of an interrogatory is sufficient. (R.) Warner, Chief Justice, dissenting.

Caveat to will. Revocation. Subseqent marriage. Attestation. Continuance. Before Hon. William M. Reese, an Attorney at Law, presiding by consent. Oglethorpe Superior Court. April Term, 1871. On June 27th, 1853, Lewis J. Deupree having then a wife and two children, executed a paper purporting to be his will. On September 8th, 1859, his wife having in the meantime died, he executed a codicil to the same. On May 24th, 1864, he married Lucy Y. Peebles, and in contemplation of said marriage, he and the said Lucy Y., on the day of the marriage, and before the ceremony was solemnized, entered into marriage articles, which provide for the settlement of $10,000 by the said Lewis J. Deupree, upon his intended wife, and for the securing to her sole and separate use her own property. These articles contained the following provisions: “And the said Lucy Y. Peebles, in consideration of the premises and of the settlement to be made as aforesaid, hereby renounces and forever relinquishes all claim of every sort which she may or might have by reason of said intended marriage, should it take place, upon any other part or portion of the property or estate of the said Lewis J., of every kind whatsoever (now belonging to him or that he may hereafter in anywise acquire) as heiress, distributee, by way of dower, or any other operation of law; also, all right to caveat or invalidate, upon any ground whatever, the existing will of the said Lewis J., and the codicils thereto, or any portion of either — it being understood between the parties to this agreement that said will and codicils shall remain in full force until they are altered, cancelled or destroyed by the said Lewis J., provided, however, that should any child or children be born of said contemplated marriage, and survive the said Lewis J., such child or children shall be entitled to take under said will as if they were expressly named, and receive legacies equal to the provision made therein for the children of the said Lewis J., now living, and subject to like uses and trusts, limitations and conditions.” These articles were signed by both parties, in the presence of three witnesses, and immediately after the execution of the same, the parties were married. Lewis J. Deupree died in April 1870, leaving his widow, the said Lucy Y., and his three daughters, Mary L., Hunnicntt, Francina Deupree and Lucy G. Deupree, his only heirs-at-law. Neither the will or the codicil contained any provision in contemplation of said marriage, nor was any alteration made in the same subsequent to the marriage. Under this state of facts, the heirs-at-law petitioned the Court of Ordinary of Oglethorpe county to declare the intestacy of said Lewis J. Deupree, and a portion of the executors of said Lewis J., subsequently propounded all the papers heretofore referred to as the last will and testament of said Lewis J., for probate. An appeal, by consent, was taken to the Superior Court, where the two cases were, by order of the Court and consent of the parties, consolidated and tried together. The probate of said purported will was caveated upon the following grounds: 1st. Because the said Lewis J. Deupree made no provisions in said will or codicil in contemplation of the marriage of the said Lewis J. with the said Lucy Y., and subsequently to said marriage made no alteration in either of them. 2d. Because the ante-nuptial agreement between the said Lewis J. and the said Lucy Y. is in all of its parts a contract entered into between said parties in consideration of marriage. The two cases were submitted to the jury, and a verdict was rendered in favor of caveators against all of said papers as wills, finding that the said Lewis J. died intestate. When this case was called in the Superior Court, the propounders moved for a continuance and showed for cause that two of the subscribing witnesses to the paper propounded, bearing date May 24th, 1864, to-wit: John P. Atkinson and Cadesman Pope, who reside in the county of Meriwether in said State, had been served with subpoenas, were absent. They showed further, that the expense of attending Court had been tendered to said witnesses, and that the other subscribing witness, to-wit: William Park, resided in the State of Alabama. The Court overruled said showing, and propounders excepted. Propounders then excepted to the answer of Mrs. Dora Atkinson to the third cross-interrogatory as not sufficiently full. The question and answer are as follows: Q. “Answer if Mrs. Lucy Y. Deupree has not been to see you since the case has commenced, and had a talk with you and Jolm P. Atkinson, in order to refresh your recollections about these matters, and the order in which they occurred P Could you now say that Mr. and Mrs. Deupree actually left the room within your knowledge before the paper was signed by the witnesses? Did not Miss. Lutie King and Mrs. Deupree come out of the door first? Was the door wide enough for three persons to come out of the room together, and did you not hear Mrs. Deupree say after she got in the passage, ‘ I suppose you have no further use for me about this matter/ or words, to that effect?” A. “She has been to see us and I have heard her converse on the subject. I do not think she came to see me for that purpose; Mr. Deupree and Mrs. Peebles left the room before the witnesses did, but I do not know whether or not they left the room before the witnesses signed the instrument. They all came out about the same time. The door was not wide enough for three to pass out at once. I did not hear her make that remark.” The Court overruled the exception, and propounders excepted. The evidence in reference to whether the witnesses to the marriage articles, executed on May 24th, 1864, signed in the presence of Lewis J. Deupree, was conflicting. It was admitted that the estate of the testator amounted to some $300,000, and that the Athens real estate which had been conveyed shortly before his decease to his three daughters, was worth some $60,000. The Court charged the jury as follows: “ Gentlemen op the jury : The propounders, as plaintiffs in this case, allege that the three papers before you, one dated in 1853, one in 1859, and one in 1864, constitute the will of Lewis J. Deupree. In relation to the execution of wills, (not nuncupative,) the Code declares that they must be signed by a testator of sound mind, freely and voluntarily, in the presence of at least three subscribing witnesses, and that these witnesses must sign in his presence. Unless all of these requisites are complied with there is no will. As to the paper bearing date in 1853, defendants concede the same to have been properly executed. The same concession is made by them as to the codicil executed in 1859. They, the defendants, admit that these papers, executed in 1853 and 1859, would constitute the will of L. J. Deupree but for a subsequent event — his marriage in 1864. Caveators say that Mr. L. J. Deupree married in 1864, a fact admitted by propounders, and, under section 2441 of the Code, these papers, executed in 1853 and 1859, are revoked, and not the will of L.J. Deupree. This section (2441) declares that, in all cases, the marriage of the testator or the birth of a child subsequent to the execution of a will, in which no provision is made in contemplation of such an event, shall be a revocation of the will. Propounders, while admitting the marriage of L.J. Deupree, in 1864, and its legal results, reply to this ground of the caveators, that in 1864, a few moments before his marriage, L. J. Deupree executed a paper, called generally a marriage settlement, which is in some of its clauses testamentary, and that these testamentary clauses do actually make a provision in contemplation of marriage and birth of a child, and that, as a whole, taking the three papers offered for probate, L. J. Deupree’s will made a provision in ebntemplation of marriage, and therefore his marriage in 1864 did not revoke his will. Upon an examination of this .instrument, executed in 1864, I am satisfied that the parts thereof claimed by the propounders as testamentary, are so, and do make a provision in contemplation of marriage. I am satisfied that this paper comes up to the requirements of section 2441 of the Code, so far as the nature of its provisions is concerned, and, if properly executed, avoids the effect of marriage. And here I charge you that a writing not executed as our law requires in cases of wills, will not save the papers executed in 1853 and 1859 from the effect of marriage. You will, then, understand me to charge you that this paper, dated in 1864, though it is testamentary in its provisions, and though these provisions do contemplate the event of marriage, must be shown by proof to have been executed by L. J. Deupree, when he was of sound mind, voluntarily, and that he signed it in the presence of at least three witnesses, and that they signed in his presence. There is no dispute on any of these questions, except as to the last — the subscribing of the three witnesses in L. J. Deupree’s presence. In 33 Georgia Reports, 293, it is declared by our Supreme Court, ‘that attesting and subscribing by witnesses in presence of the testator are essential to the validity of a will, and that these must be shown to have been done, else the will shall be held to be void and of no effect.’ It is also said by the Court, on page 293 of 33 Georgia Reports, in same case, ‘that it is not necessary for the testator to have actually seen the witnesses subscribe, but it was necessary that they should have subscribed in his presence, and that it must have been done before him, or in his view, so that if he would have looked from his actual position he might have seen the witnesses subscribe.’ Should you be satisfied from the evidence that Mr. Deupree, from his actual position, when the witnesses subscribed the paper dated in 1864, might have seen them subscribe, then this paper is properly executed, and the three papers should be declared to be the last will of L. J. Deupree. But if he could not, from his actual position, have seen the witnesses subscribe it, then it is not properly executed, and your verdict should be against all of the papers. If the subscribing witnesses should not recollect where the testator was when they subscribed, and the attesting clause recites him present at that time, the presumption is that he was so present. If not, and the attesting witnesses appear in Court, and their testimony is that they do not recollect as to the presence of the testator, no such presumption arises. While I am in some doubt as to these propositions, when the subscribing witnesses do not remember where the testator was when they subscribed, still I charge you that the law is as I have stated. Even, however, if the witnesses do not remember distinctly, if you are satisfied, by the testimony of other witnesses and from proof before you of circumstances, that the will was signed by the subscribing witnesses in L. J. Deupree’s presence, then the will should be established, as composed of the papers executed in 1853, 1859 and 1864.” The propounders excepted to, and assigned as error the following rulings of the Court upon the trial: 1st. That the Court erred in overruling the motion to continue, grounded upon the absence of the subscribing witnesses to the paper propounded, bearing date May 24th, 1864, as above stated. 2d. That the Court erred in overruling the exceptions to the answer of Mrs. Dorah Atkinson, as above stated. 3d. That the Court erred in holding Lucy Y. Deupree, the widow of the alleged testator, and who was a party to the paper propounded, bearing date May 24th, 1864, and which had been put in evidence, a competent witness, overruling the objection made by counsel for propounders, when each set of her interrogatories was offered, and allowed both sets of interrogatories to be read in evidence, when it had been shown that the said Lewis J. Deupree, the other party, was dead, and in this the propounders say the Court cited. 4th. Counsel for propounders profered the following writ ten request to the Court to charge: “ That every revocation of a will, whether express, implied or resulting, statutory, positive or absolute, was, under the Code of Georgia, a question of intention; and that if the jury were satisfied that, cotemporaneous with the marriage of the said Lewis J. with the said Lucy Y., he executed the paper propounded, bearing date May 24, 1864, with proper formality for a deed, that such evidence will silence the presumption that by his said marriage he intended to revoke his will.” Which said request the Court refused to charge, but charged “that the jury could in nowise consider said paper, unless they were satisfied under the evidence that it was executed with all the formality required by law for the execution of a will.” And counsel for propounders say that the Court erred, both in refusing said request, and also in giving said charge, immediately above set forth. 5th. Counsel for propouuders assign as error the following passages from the charge of the Court: “You will, then, understand me to charge you that this paper, dated in 1864, though it is testamentary in its provisions, and though these provisions do contemplate the event of marriage, must be shown by proof to have been executed by L. J. Deupree, when he was of sound mind, voluntarily, and that he signed in the presence of at least three witnesses, and that they signed in his presence.” “ But if he could not, from his actual position, have seen he witnesses subscribe it, then it is not properly executed, and your verdict should be against all of the papers; ” and say that the Court erred in giving the same. 6th. And counsel for propounders say that in the following charge: “If the subscribing witness should not recollect where the testator was when they subscribed, and the attesting clause recite him present at that time, the legal presumption is that he was present. If not, and the attesting witnesses appear in Court, and their testimony is that they do not recollect as to the presence of the testator at the time of attesting, no such presumption arises. While I am in some doubt as to these propositions, when the subscribing witnesses do not remember where the testator was when they subscribed, still I charge you that the law is as I have stated. Even, however, if the witnesses do not remember distinctly, if you are satisfied by the testimony of other witnesses, and from proof before you of circumstances, that the will was signed by the subscribing witnesses in L. J. Deupree’s presence, then the will should be established as composed of the papers executed in 1853, 1859 and 1864,” the Court erred, and they assign the whole and each and every part as error. The propounders excepted, and assign seven errors, which will be severally set forth in the argument following: 1st. The witnesses to the paper of 1864, though subpoenaed, did not appear. Propounders moved for a continuance, which motion was refused. The witnesses resided out of the county; Still we say their presence should have been compelled. “By all the witnesses in existence and within the jurisdiction of the Court or by proof of their signatures, and that of the testator, the witnesses being dead: Code, 2389. Code, 3471, as to continuances requiring subpoena of witness residing in county, and Code, 2394, 2397, authorizing examination of witnesses to wills by commission — contra: the first is but a general clause from which this particular ease is excepted; the other provides for testimony by commission on all other points than due execution, for Code, 2395, requires filing of the will; it must remain in the office — this is to preserve so important a paper. Code, 3784, requires subscribing witness called but in the therein excepted cases. Act of 1807, Cobb’s Digest, 314 — the preamble to the 1st section states that there is no law that sufficiently enforces witnesses to wills to prove the same. See Act of 1838, allowing probate in county of witnesses: Cobb’s Digest, 285; Code, 2387. 2d. The interrogatories of Mrs. Deupree, the widow, were received, propounders objecting, to prove that her deceased husband was not present when the witnesses signed. The cause of action on trial was whether the will propounded should be set up. To this issue Deupree, by his representatives, was a party, and Mrs. Deupree was also a party against him by actually caveating the will, and Deupree, an original party, was dead. Leaptrot vs. Robertson, 37 Georgia, 587; see specially, 589, ad Jinem. See, also, Moore vs. Harlan & Hollingsworth, 37 Georgia, 626. “ The reason for excluding a party whose opponent is dead is evidently because he cannot be confronted by the other party:” McGehee vs. Jones et al., 41 Georgia, 125. Mrs. Deupree carries her contemplated husband out of the room swearing he did not stay behind long enough to witness the signing — he was not there to confront her. She joined as caveatrix. 3d. The Court charged in the sixth assignment: “ If the subscribing witnesses should not recollect where the testator was when they subscribed, and the attesting clause recites them present at that time, the legal presumption is that they were so present. If not, and the attesting witnesses appear in Court, and their testimony is that they do not recollect as to the presence of the testator at the time of attesting, no such presumption arises.” The attestation clause was “signed, sealed and delivered in the presence of.” Suppose the charge to mean if the attestation clause does not recite the testator’s presence at their subscription, and they cannot remember, when testifying, if he was present, no presumption of his presence arises — that was error. 1 Greenleaf’s Evidence, section 38, (a) as to presumption in favor of due execution of solemn instruments. Also, 1 Williams’ Executors, 83, as to clause omitting some essential particular, or clause omitted entirely. The paper was testamentary — it was attested by the three witnesses necessary — all these, taken with the clause, raised a presumption of Deupree’s presence, which if not strong should have been given to benefit us as much as it legally could. The Judge charged further as set forth in this assignment: “If the witnesses do not remember distinctly, if you are satisfied by the testimony of other witnesses, and from proof before you of circumstances, that the will was signed by the subscribing witnesses in L. J. Deupree’s presence, then the will should be established as composed of the papers executed in 1853, 1859 and 1864.” 1. The subscribing witnesses do not remember distinctly, and he therefore directed their finding improperly against evidence that might warrant a verdict, though not distinct and precise, and against the legal presumption. 2. He also virtually told the jury that they could not set up the will on the testimony of these witnesses. 3. He intimated an opinion on their evidence. Though it raised the presumption of Deupree’s presence at the attestation, still if they could not distinctly remember the fact which the law presumed, their evidence was insufficient. 4. In the seventh assignment the Judge in reply to verbal request of counsel that if Deupree was shown to have been present when witness began to sign, the legal presumption was that he continued present until the signing was finished, said such was, in his view, a presumption of fact. A presumption of fact is a mere argument, but the other must prevail if not rebutted. If Deupree was proven present when the signing of his own paper begun, the law will presume him staying the few seconds longer of the signing, and the Judge should not have said, even impliedly, that the jury could disregard this presumption : See Greenleaf’s Ev. see., 44. 5. The fourth assignment recites the refusal of the following request: “That every revocation of a will, whether express implied, or resulting, statutory, positive, or absolute, was, under the Code of Georgia, a question of intention, and that'if the jury were satisfied that contemporaneously with the marriage of the said Lewis J. with the said Lucy Y., he executed the paper propounded bearing date May, 24th, 1864, with the proper formality for a deed, such evidence will silence the presumption that by the said marriage he intended to revoke his will.” The Court charged instead, that such paper could not be considered by them unless it had been executed as a will. 1. Code 2434-42 makes but two sorts of revocation, express and resulting. One instance of implied revocation is the execution of a subsequent will inconsistent: Code, 2435. This implied revocation extends only so far as the inconsistency exists: Code, 2439. The doctrine is also applicable to conflict of clauses : Code, 2440. 2. The revocation in question is certainly resulting. It is classed by the legal authors as an implied revocation : See Williams & Jarman. That it comes here by a statute instead of a long-accepted formula, does not change the nature. Lastly, all the instances of revocation given in the above cited sections are put on the same footing in the last: Code, 2442: and a destroyed will was never revived by a codicil: Redfield, 365; Williams, 94. 3. This being a resulting revocation, it is within the words of section 2438 : “In all cases of revocation, the intention to revoke is necessary to make it effectual;”' and the two clauses should be read together, thus; “In all cases the marriage of the testator, with the intention to revolee, (animo revoeandi) subsequent to the making of a will in which no provision is made in contemplation of such an event, shall be a revocation of the will,” just as we must reconcile section 2438 with other clauses apparently as positive. 4. The Act of 1834, as apparent from its title and its body, only worked an intestacy in case of death, without alteration ; the Code makes the marriage a revocation. 5. There is no such difficulty as has been imagined on the subject of intention ; the intention concurring with the act, characterizes it; the act cannot be altered in nature by a subsequent change of intention. The doctrine seems to be this: subsequent marriage being shown, revocation is presumed prima facie, just as the same will be presumed when obliteration is shown; but the presumption is disputable in each case and can be rebutted. 6. Remember the conflict in England; read 1 Williams’ Executors, 158-9; also, 4 Kent, 523-4, wherein he takes the strong ground of Lord Mansfield for intention instead of condition. 7. American authorities: Brushes. Wilkins, 4 Johns. Ch., 506; Yerby vs. Yerby, 3 Call, 334; Wheeler vs. Wheeler, 2 Rhode Island, 364. 6. The charge complained of in the fifth assignment expressly excluded from the consideration of the jury, saving the question of its execution as a will, the paper of 1864, though that paper was shown to have been executed as a deed. The same was virtually done by the Court as recited in the fourth assignment. This cotemporaneous settlement really altered the will. The object of the Act of 1834 was to modify: Brush vs. Wilkins, which had ruled that birth and marriage must concur to revoke and make either event a revocation. This was the great object. This Act, if not superseded, is still of force. (The heirs took the remedy given by it.) Prima facie, the Code merely intends to repeat it substantially, save that the Code makes marriage a revocation. (See Mr. Justice Co wen, quoted by Kent, first volume, side, 468, note (d) — read all.) Suppose Deupree had made a new will, bequeathing his wife $500; this would be an admitted alteration; but, when he passed to her $10,000 in prcesenti, irrevocably, taking it forever out of the residuum, there is a quibble, and he has not altered his will. See Redfield, 294-5, and the comment on Kenebel vs. Scrafton, 2 East. 530, in the note citing Earl Ilchester, 7 Vesey, 348. In this case, a devise of land, the Chancellor says: “That from the rule originally adopted and now settled, whether to be considered a rule of law or a presumption, whether going upon the intention or an implied condition,” etc., no revocation. (See third marginal note of reporter.) The Chief Justice and Master of Rolls agreed. Read the opinion of the Chancellor. The rule, whether it be one of intention or of absolute law, was never held to be applicable in any case where the revocation could not confer any benefit on the after-married wife or after-born children: 1 Jarman, 110; Sheath vs. York, 1 Vesey & Beames, 390; Brush vs. Wilkins. First Assignment: That the Court erred in overruling the motion to continue the case, founded on the absence of the subscribing witnesses. This ruling was not error. The witnesses did not live in the county where the issue was tried, but were admitted to be residents of other counties, and one of them resided out of the State. Those living out of the county could not be compelled to attend in person: Code, section 3788. Applications for continuance must show that the witness lives in the county: Code, section 3471. Interrogatories are allowed on probate of wills: Code, sections 2394, 3821-3. And the interrogatories of the absent witnesses were in Court and read by propounders: Code, section 3480. Second Assignment. That the Court erred in not sustaining the objections to the answer of Mrs. Atkinson to third cross-interrogatory. Reply — no error. Answer full and sufficient. See bill of exceptions, pages 23 and 26, and Mott vs. Hall, Maer & Company, 41 Georgia, 117; 8th Georgia, 626, and objection immaterial if good. Third Assignment. That the Court erred in overruling objection to the testimony of Lucy Y. Deupree, because she was a party to the marriage articles, dated 24th May, 1864, and which was one of the papers offered for probate, in part, as a will, it having been shown that Lewis J. Deupree, the other party to said articles was dead. We submit that Lucy Y. Deupree was a good witness under the Act of 1866: Code, section 3798, in this issue of Devisavit vel non: 1st. Because she is not within the exception. 2d. The contract is not sued on. 3d. She is not called on to testify in her own favor. Her interest in the contract, (if any,) was not in issue: See 36 Georgia, 520; 37th, 624; 38th, 108. No objection having been made as to costs, she was a good witness at common law: Worrell vs. Jones. 1 Greenleaf, sections 337, 338, and note to 337, section 254 — 1, Greenleaf, 342, when judgment cannot issue against a party. Fourth Assignment. This assignment rests on the single ground that the marriage articles entered into before the last marriage, on the 24th May, 1864, executed with the formalities of a deed only, and not “with all the formalities required for a will,” etc.,but “the presumption that by his said marriage L. J. Deupree intended to revoke his will.” We will reply: 1st. That by the provisions of the Act of 1834, under which defendants in error filed their petition praying judgment of intestacy as to the estate of said Lewis J., if this will of 1853-’59 was not revoked after the marriage of the parties, 24th of May, 1864, it is void, and an intestacy must be declared under the said Act of 19th December, 1834: See Cobb’s Digest, 367. This statute enacts that, “in all cases when a person, after having made a will, shall marry, (like provision for children omitted,) and no provision shall be made for the wife after marriage, in said will, and shall depart this life without revoking said will or altering it subsequent to said marriage, the proper Ordinary shall pass an order declaring such person died intestate.” Here is marriage after the will of 1853-’59. Here is “no provision” in said will for the wife. Here is no alteration in said will subsequent to said marriage, and plaintiffs in error say, “no revocation.” What follows ? This law says, intestacy — Statute of Distribution. In this view, rebutting intention to revoke does not help plaintiffs in error. 2d. We reply: That this will of 1853-59 is also void under section 2441 of the Code, because it declares that “in all cases the marriage of the testator, (or the birth of a child to him,) subsequent to the making of a will in which no provision is made in contemplation of such an event, shall be a revocation of the will. Under this statute we have will, subsequent marriage of testator, no provision in said will in contemplation of such event, therefore revocation — revocation by command of the law — and this and the next following section of the Code, 2442, in perfect harmony therewith, and therefore to be considered to contain the last expression of the legislative will on this branch of the law of wills. To the plain requirements of these two statutes the plaintiffs in error oppose: 1st. The marriage articles, executed 24th May, 1864, purporting to make provision for the wife and after-born children, if any; and, 2d, section 2438 of the Code. To the first we reply, that both the statutes, (Act of 1834 and section 2441 of the Code,) require the provision for the wife and child to be made in the will, and not outside of it, or in any other manner whatever, and that there is no dispensing power lodged in the hands of testators by section 2438 of the Code, or elsewhere, to amend the plain provisions of these two Acts. This Court has given a clear and accurate exposition of this provision in the Act of 1834, in Holliman et al., vs. Copeland and wife, 10 Georgia, 79, and the point now under consideration being identically the same in both statutes, the decision equally applies to section 2441 Code, also to 2 Green-leaf’s Evidence, section 684 and note; Bibb vs. Thomas; 2 H. Black, 1043; 1 Jarman on Wills, 106, 107, 108, 109, 110, 111, 112; 13 Williams’ Executors, 165, 163: See 1 Williams’ Executors, on point of time of intention, 162. For review of the whole doctrine in England, see Marston vs. Doe, ex dem., Fox, 8; Adolphus & Ellis, 14 (35 Common Law, 343.) If the statutes of 1834 and section 2441 of our Code needed further interpretation on these points than their own explicit language and decision of our own Supreme Court, it can be abundantly furnished by referring to that cardinal rule of construction, the old law, the mischief and the remedy. The principle that marriage and the birth of a child after the execution of a will, under any circumstances, revoked it, was not provided for by the Statute of Frauds but were borrowed from the civil law, and became one of the most confused and perplexing branch of English jurisprudence, at least until the great case of Marston vs. Doe, ex dem., Fox. What cases came within the rule, whether the rule was one of presumed intention to revoke by the testator, subject to be rebutted by extrinsic evidence of a contrary intention, or a rule of law which operated without regard to the intentions of the testator, whether, if it was a question of intention, that intention could be gathered only from intrinsic evidence, or if extrinsic, the intention at the time of making the will, or some subsequent intention, was the test of the application of the rule; whether marriage alone, or marriage and the birth of a child, was necessary to bring the case within the rule, whether the rule applied in the event of the death of the child before the testator, or in the event that the issue had other provision, by descent, by marriage settlement or otherwise; whether or not the rule would operate if its application did not benefit the after-born child and injure children by a former marriage; whether it applied to a single man with children by a former marriage. These, with various other vexed questions, besides the conflicts of the decisions between the Common Law and Ecclesiastical Courts, called loudly for legislative intervention. The Act of 1834, and the section, 2441, of our Code were the responses to that call. Nearly all, and perhaps all, the States of the Union, where the common law prevailed, as well as the Parliament of Great Britain, felt the same necessity for legislating on the subject, and have done so. Our Acts made it the marriage or the birth of issue, without provision in the mil for the event, ipso facto, an annulment of the will. The plaintiffs in error invite you, by forced construction, to shut your eyes to the plain language and obvious purposes of those Acts, and again to plunge into and lose ourselves in the endless mazes from which we have happily escaped. But it is insisted by plaintiffs in error that the 2441st section of the Code repeals, changes, or alters the Act of 1834. Suppose this be true; we stand upon the 2441st section of the Code, and have the same great facts: Will, subsequent marriage, no provision for it in the will, revocation. This proves the Acts not inconsistent. To escape the Act of 1834 there must be revocation, or alteration; to escape the Code, there must be no revocation. Each seems to provide for a different state of facts, and, therefore, no conflict and no repeal. These conclusions are so clear that plaintiff admits, by his defense, that he must look elsewhere to escape their consequences; and, therefore, he says, for further plea and answer, that section 2438 of the Code modifies and controls the intepretation, both of the Act of 1834 and of section 2441 of the Code. This section, 2438, is not put forward as a modest equal of other laws, in pari materia, to be construed together in order to arrive at the meaning of the Legislature; but as an Aaron’s rod, to swallow up all other rods. The intention of the Legislature, when ascertained by fixed rules of construction, is the life of the statute; the rule by which the citizen shall govern his conduct; it is the law to which he must conform, and which he must obey. The intention of testators, in all cases, is the polar-star in the construction of wills — which shall govern, when not inconsistent with a rule of law. The intention of contracting parties, in all cases of contracts, likewise, shall be the law of contracts, unless it conflicts with a rule of law; “and in all cases of revocation, the intention to revoke is necessary to make it effectual. This clause, like all the rest, has no other limitation but a rule of law, and the section is its own expositor; for the next and only remaining clause in the section gives the exposition, to-wit: “An express claim of revocation will not operate upon a testamentary paper when it is manifest that such was not the intention.” See section 2434 to section 2438 for further illustrations of the principle. All these affirm nothing but the rule of the common law. Sir H. Jenner Faust, in Marston vs. Fox, says, at common law, “intention is the principle of faetum and of revocation. It is the principle of revocation, whether it be direct by act or implied by circumstances, the animus testcmdi ovrevocandi is the governing principle.” Quoted in Williams on Executors, page 158, and note. Revocation by act of the party is an act of the mind demonstrated by some outward and visible sign, etc.: 1 Greenleaf, 573. The grand and only sensible rule is, that a testator’s intentions designate and fix the character of his own act; while the intention of the Legislature as to this Act, when thus ascertained, is the law: equally the law in the making, the expounding, the execution and revocation of wills. Intention governs contracts. Code, 2713, 2679, 2689 and wills 2360. But if the interpretation claimed by plaintiffs in error is to govern, at what time shall this intention be manifested? We say at the execution of the will, and not after: 10 Georgia, 79; Marston vs. Doe, ex dem., Fox; Israel vs. Rodan, 2 Moore’s Privy Counsel; 2 Greenleaf, 684 and note. Also, if plaintiffs in error’s interpretation is to govern, by what evideuce shall the intention be proved? We say none but evidence which will amount to republication: Marston vs. Fox, supra, Israel vs. Rodan, supra; 2 Greenleaf, 684 and note; 1 Jarman on Wills, 109. This brings us to the fifth and sixth assignments, which, being substantially the same, will be argued together. They stand solely, in the charge of the Court, on section 2442 of the Code upon the subject of republication. Assuming, for the purposes of this argument, that a republication, under this section, would be a full reply to the Act of 1834 and section 2441, we say that the marriage articles, whether deed or will, “were not executed with all the formalities required for a will,” and, therefore, cannot operate, either as a will or as a republication of a will; because, we affirm that the law requires a will to be signed by the witnesses in the presence of the testator: Statute of Frauds, Cobb’s Digest, 1137; Code, sections 2379, 2442; Robertson & Wood vs. King, 6 Georgia, 539; Brooks vs. Duffie, 23 Georgia, 441; Reed vs. Robertson, 26 Georgia, 294; Lamb vs. Girtman, 33 Georgia, 293. The charge complained of in the sixth assignment was good law, but too good for plaintiff’s case. In the bill of exceptions filed by the executors, there are seven assignments of error: The first Assignment: Court erred in overruling motion to continue on the ground that two witnesses to the marriage contract, subpoenaed and living in Meriwether county, were absent. Reply: No error here. As to law of continuance, see Code, section 3471; as to law for taking testimony of witnesses residing out of county, see sections 2394 and 3821. Besides, these absent witnesses were fully examined on direct and cross-interrogatories, and their testimony was read on the trial. Again, said contract not being testamentary in any part, was matter irrelevant to the issue: See, also, Code, section 3788. Second Assignment: Court erred in admitting the answer of Mrs. Dorah Atkinson to third cross-interrogatory, objected to because not full. This is simply a mistake; interrogatory is fully answered. Third Assignment: Court erred in holding Mrs. Lucy Y. Deupree a competent witness in the issue on the execution of the paper propounded, bearing date May 24th, 1864, she being a party to the same, and Lewis J. Deupree, the other party thereto being dead. Reply: Said paper was pleaded by the executors both as a contract and as a testamentary paper; Mrs. Deupree was examined as a witness to disprove its proper execution as a testamentary paper only. She was no party to said paper considered as testamentary; L. J. Deupree, the testator, was the only party thereto when so considered. Mrs. Deupree proved the proper execution of said paper considered as a contract. She was therefore a competent witness under Code, section 3798. Besides, said paper considered as a contract, was irrelevant: 1 Greenleaf, 338; Castello vs. Castello, 41 Georgia; 40 Georgia, 150, 490. Fourth Assignment. Court erred in refusing to charge as requested, that every revocation of a will under the Code of Georgia is a question of intention; and if the jury believed, the marriage contract was properly executed, as a deed, then such contract rebutted the presumption that L. J. Deupree, the testator, intended by his marriage with the said Lucy Y. to revoke his will; and in charging that the jury could not consider said paper unless executed with the formalities of a will. Reply : Court was right. Section 2438 of the Code, which says, “intention to revoke is necessary to make it effectual,” does not qualify section 2441, which puts the revocation there provided for on events or circumstances, as specified, and not on the intention of the testator to revoke, and make the revocation independent of the act or intention of the testator. These two sections being placed in the same “Article,” and under the same head of “Revocation,” does not make the former qualify the latter; the “classifications of the Code are not law, nor are they at all accurate:" 39 Georgia, 406-7. There was no such qualification of the Act of 1834: Cobb’s Digest, 347; 10 Georgia, 81-2. What the Code calls express, resulting and implied revocations were all express revocations under Statute of Frauds, as distinguished from implied at common law: Greenleaf, 2d volume, paragraphs 680, 684. That Act is not changed in this particular by section 2441. Rule for construing Code: It does not change the law “except where it plainly does so:” 38 Georgia, 509. The common law, as adopted from the Civil Code, put this class of revocations on implied intention to revoke, where it stood, with some doubts expressed as to the true principle of this class of cases, till the ease of Marston vs. Doe ex dem., Fox, 35 Common Law Reports, 303, which held that the true principle of revocation was not implied intention to revoke, as formerly held, but tacit condition annexed to the right to make a will. See, also, Israel vs. Rodan, 2 Moore, P. C. C., 51, and 1 Jarman on Wills, top page, 109, and note; Williams on Executors, 1st volume, top pages 164-5, 168, 172-3-4. See “Revocation” Library Edition. The new Statute of Wills of 1838 forever settled the controversy in England, by putting this class of revocations on the event of marriage alone subsequent to the date of the will, independent of the intention of the testator. Williams on Executors, 1st volume, top pages 174-5; Jarman on Wills, 1st volume, 113-4. The Act of 1834 and section 2441 of the Code, settled the controversy in Georgia by putting the revocation on the event of after marriage or birth unprovided for in the will, without regard to the intention or act of the testator. Both the provision and the mode of its conveyance are declared ; both are the objects of the statute, and both are fixed by it. The provision must be in the will, not out of it. Thus the great source of controversy arising under the common law from implied intention, or from the amount, character or mode of the provision, is cut off by our statute. The language of said Act is, if “ no provision shall be made in said will,” etc.; and the la gorge of said section is, “a will in whieh no provision is made,” etc. There is no ambiguity in these words, which are of common use, nor in the Act or section construed with reference to these words taken in their plain, obvious, ordinary signification, and they must be so taken and enforced Code, section 4; 1 Kent’s Commentary, 461-2; 1 Kelly, 171; 3 Kelly, 152-3-4-5-6; 10 Georgia, 70; 10 Georgia, 81—2; 41 Georgia, 58; 17 Georgia, 458; 18 Georgia, 134; Sturges vs. Crowninshield, 4 Wheaton, 202; 4 McL., 465; 5 McL., 178; Devereaux Circuit Court Reports, 158; Brightly’s Federal Digest, page 816, number 63. See review of American Statutes and authorities in note to Williams on Executors, 1st volume, top pages 170-1-2 — title, “Revocation,” — Library Edition. South Carolina, Louisiana, Connecticut and most of the other American States have enacted laws putting this class of revocations on event, independently of the act or intention of the testator; the Statutes of Connecticut and Pensylvauia, and some other States, require the provision in contemplation of marriage to be in the will as our statute requires; that of New York requires it to be by will or settlement. See specially, Statutes of South Carolina, volume 5— 1786 to 1814 — page 107, section 10; Revised Code of North Carolina, page 611, section 23; Revised Statutes of Connecticut, 1849, pages 346-7, section 6; Revised Statutes of Indiana, volume 2, 1852, page 311, section 3; West Virginia Code, 1868, page 480, section 6; Revised Statutes of Maine, 1857, page 453, section 8 ; Revised Statutes of Rhode Island, page 358, section 10. Fifth Assignment: Court erred in charging the jury that though the marriage contract was testamentary in some of its provisions, and contemplated the event of marriage, yet that it could not prevent the revocation unless executed with the formalities of a will, and that testator must have been able to see, from his actual position, the subscribing witnesses sign the same. As to witnesses signing in presence of testator, see 6 Georgia, 539; 26 Georgia, 625; 33 Georgia, 293. This charge was given with reference to the marriage contract as it was pleaded by the executors, as herein before stated. See reply to fourth assignment of error. Sixth Assignment. Court erred in charging the jury that, if the attesting clause to a will recites the presence of the testator when the subscribing witnesses signed the same, the legal presumption is that he was so present, though they should not be able to remember the fact when called as witnesses to prove the execution; but if the attesting clause does not so recite, no such presumption arises. Reply: As the attesting clause in this case contains no such recital, the first part of the charge was irrelevant and harmless, though it erred in principle in favor of the executors. The latter part of the charge was correct in fact. The true rule of law is this: where the witnesses to a will, whether there be an attesting clause or not, when called cannot remember the facts of the execution, their signatures may be proved, as where they are dead, or abroad, and the whole question as to the proper execution submitted to the jury, as questions of fact, under all the circumstances of the case. This was done in this case: Phillips on Evidence, 3d volume, 450-1; 19 Johns, 386. 1. The verdict was according to the law and the evidence in the case, and must stand, even though the Court may have erred. 2. Court erred against caveators in holding that the marriage contract was testamentary in some of its provisions 5 whereas, it is not ambulatory in any part, as a will is during the life of testator, but is binding and irrevocable in all its parts, which make a provision in contemplation of marriage; and made, also, on a valuable consideration. There is no stipulation in it binding on Lewis J. Deupree which he could have changed or disregarded; and there is nothing in said instrument which makes a provision in contemplation of marriage or birth, but his own binding stipulations: Code, section 2484. “In order to make a paper testamentary, no power, right, interest or estate must pass from the donor to the donee during life time of donor:” Cone’s opinion, 3 Kelly 172. 3. If the marriage contract was executed as a will it could not be a republication of the will, for the will was not revoked when the contract was made. There is no such thing as the republication of an unrevoked will: Code, section 2442; Williams on Executors, 1st volume, top of page, 278, title, republication.