The principle of the rule accord

Kenyon.

to take place after his will, but actually provided for it, as to his wife, by his will, and his Lordship appears to have considered the rule as flexible to the particular circumstances of each case, and standing only on a presumption of fact, which like all other presumptions of the same kind might be rebutted by every sort of evidence. According to this view of the principle of the rule, the facts of the case were admitted to furnish a counter inference to the presumption of the rule, which was made to give way; and the will was adjudged upon these grounds, to be unrevoked by the subsequent marriage, and birth of a child.

In subsequent cases the rule has been considered ing to Lord as standing upon firmer ground than a mere presumption of fact. In Doe v. Lancashire, Lord Kenyon was of opinion that the foundation of the principle was not so much a presumed intention to alter the will, implied from the circumstances afterwards happening, as a tacit condition annexed to the will itself at the time of making it—that the party does not then intend that it should take effect if there should be a total change in the situation of his family. And Lord Alvanley, in Gibbons v. Caunt, expressed a disapprobation of the practice of receiving parol evidence to rebut the presumption, which he seemed to think should be considered as inevitably arising from the subsequent marriage, and birth of a child.

The decision in Christopher v. Christopher, went a little beyond former cases not only in carrying the rule to real estate, but in applying it also to the case of a second marriage with children, where there were no children of the first marriage.

children by a first marriage after

second marriage

By the case of Gibbons v. Caunt, it was left a Whether a will is revoked by the question, and so it still remains, whether, if a testator birth of more has more children by a first marriage born after the marriage date of the will, and becoming a widower marries the will, and a again, and has no child by the second wife, the without children, will is revoked. Lord Alvanley, however, observed that there was not a single argument applying to the feelings of mankind, that did not apply as much in the case before him as in the simple one of a subsequent marriage and the birth of a child.

It was held, however, in the well considered case ex parte the Earl of Ilchester, that a second marriage and the birth of children, where the wife and children were provided for by settlement, and there were children by the former marriage, which was before the will, was a case of exception to the rule. in question, and the will in that case was held not revoked. And this decision appears to strengthen what was observed by Lord Mansfield, in Brady v. Cubitt, on the testator's having in his contemplation, at the time of making his will, the provision

A subsequent marriage and the

humous child

operate as a revocation.

for his intended marriage in his contemplation, and seems to favour the doctrine of founding the principle of these cases rather upon presumption from intention, than a fixed and permanent rule of law.

The Lord Chancellor, however, in the case last adverted to, disclaimed the adoption of any general principle, and professedly decided the case before him upon its own particular circumstances. He thought it better to express his opinion in terms of exclusive applicability to the case, by declaring that under all the circumstances belonging to it, he thought that the appointment was not revoked by the subsequent marriage, and birth of children.

The case of Doe v. Lancashire, was that of a subbirth of a post- sequent marriage, and the birth of a posthumous child, and, the point there was, whether the circumstance of the child's being born after the death of the testator, took it out of the rule that marriage and the birth of a child are a revocation of a will. The

argument principally relied on against the revocation was this, viz. that at the death of the testator, and before the birth of the child, one of the circumstances which composed a case falling directly within the rule was wanting, and the decision respecting the validity of the will, ought then to be made, as if the question had arisen during the inter

T. R. 49.

val between the death of the testator and the birth of his child; the will could not be invalid at the testator's death, and rendered valid by subsequent extrinsic circumstances. Suppose the child had never been born alive, and the marriage and pregnancy had been held to be an implied revocation, all the devises in the will would then have been revoked in favour of a person who never came into esse. The greatest presumption that could be raised from the wife's pregnancy would be an intention to revoke when the child should be born; but a declaration of an intention to revoke a will at a future time was not sufficient even before the statute of frauds; it must be a present intention.

not depend so

tion as on the

condition, that in

But this reasoning was completely met by Lord The rule does Kenyon's exposition of the principle of the rule, viz. much on intenthat it does not so much depend upon the presump- notion of a tacit tion of intention, as on the notion of a tacit condi- the event of mar tion (5) annexed by legal construction to the will, that in such an event the will should not stand. In support of which may be added also the fiction of law, that the instant the child is born, he is con

Cranwell v. Saunders, Cro. Jac. 497.

riage and a child,

the will should

not stand.

(5) A man may make a conditional or contingent will; as where a testator on the eve of going abroad says, "In case I die before I return, I bequeath so and so," the will is avoided by his return. Ambl. 557. Parsons v. Lanoe.

D D

sidered by retrospect as born during the parent's life, which doctrine is referible to the civil law from which the rule itself was originally borrowed, and from which it may therefore with propriety receive its explanation (6).

Mr. Justice Grose forcibly observed, that he knew of no argument founded on law and natural justice, in favour of the child who is born in his father's lifetime, that does not equally extend to a posthumous child. And Mr. Justice Buller relied on the cases in our own law, which have decided that a posthumous child is to be considered, as in the same situation as one born during the parent's life. He said that all the cases cited by the council for the plaintiff as well

(6) Vinh. lib. 2 tit. 13. Statim ut editus est testamentum rumpit, et regula ista sic temperanda est si modo postea nascatur, tunc fictione juris, nativitas retrotrahitur. See the whole passage as produced

by Lord Kenyon, 5 T. R. 59. See also what his Lordship observes as to the notice which is taken by our law of posthumous children, as where a father dies leaving a daughter, and his wife ensient, and a son is afterwards born, though the lands descend to the daughter in the interim, yet the instant the son is born the descent shifts to him. See Co. Litt. 11. 6. And his Lordship added, that Statue 10 and under the statute 10 and 11 W. 3, c. 16. the law considered post11 Wm. 3, C. humous children as entitled to take, but the misfortune was that if 16. concerning children in vei tre there were no trustees to preserve contingent remainders, that which

sa mere.

was good in its inception, might be afterwards defeated by the child's not being in esse when the particular estate dropped; but that was founded on technical reasoning, because the particular estate failed. before the remainder could take effect. See the note by Mr. Serjeant Williams, to Purefoy v. Rogers. 2 Saund. 387. n. 7.