
    Wilcox v. Rootes and Others.
    October Term, 1792.
    Wills — Implied Revocation — flarriage and Birth of Issue. — A subsequent marriage,and the having of a child, is an implied revocation of a will, and in such a case, the will ought not to be admitted t©> probate.
    This cause, came on before the District Court of Prince Edward, upon a summons issued by the order of the court, on the motion of Mrs. Wilcox the widow, and of Susannah Wilcox, the heir at taw of Edmund Wilcox against Philip Rootes and others; requiring them to produce the will of the said Edmund Wilcox; and on a cross motion of the said Rootes and others, against Mrs. Wilcox, and the heir at law, to admit the said will to record.
    The will being produced, it bore date the 25th of April 1781, and contained bequests-of his whole estate to the appellees. The probate was contested by the appellants, who produced evidence, to prove the marriage of the testator, with the appellant Susannah, the widow, after the making of this will, and the subsequent birth of the other appellant.
    The whole of the evidence is spread upon the record, as well that, which proves the execution of the will, as that, relating to the subsequent marriage of the testator, and the birth of a child. The record further states, that the testator married in 1783, had a child, and died in May 1785. That there were strong reasons to believe, that one of the devisees in the will, was the natural son of the testator — That the testator, the night before his death, expressed a desire to make a provision for his said supposed son.
    The court admitted the will to record, from which order, the widow and heir at law appealed.
    *The question made was, whether the will ought to have been admitted to record, since it was revoked by the subsequent marriage of the testator, and his having a child. It was contended for the appellant, that no principle of law was better established, than this; that marriage and the birth of a child is an absolute revocation of a will, made prior to the happening of those events. If so, it is, as if it had never been made, and of course, it is improper that it should be proved as a will.
    To this it was answered by the council for the appellees, that let the doctrine concerning implied revocations be, as it is stated on the other side, yet on a collateral motion like this, the court have nothing to do with inquiries of this sort. If all the requisites of the law, which give validity to the will, have been complied with, the court, on a motion to receive the prohate of it, are bound to admit it to record; leaving the parties to contest the force and validity of it, upon collateral points, in some other form. The only questions before the court on such a motion, are, whether the will was duly executed by the testator, is it his last will, and was he capable of making it at the time?
    Besides, tho’ subsequent marriage and having a child, be a revocation of the bequests in a will, it does not render the party intestate; and if the will be not proved, the executor cannot qualify. The will may be good to some purposes, and void as to others; but because the bequests are revoked, it does not follow that the appointment of an executor, should also be revoked, which must be the case, if the will could not be proved and admitted to record.
    
      
      Wills — Implied Revocation — Harrige and Birth of Issue. — On the question of the Implied-revocation of wills, the principal case is cited in Yerby v. Yerby, 3 Call 342; Bates v. Holman, 3 Hen. M. 527, 533; Jones v. Mason, 5Rand 588; Duffiv. Puff, 3 Leigh 529; Hansbrough v. Hooe, 12 Leigh 334; Phanp v. Wooldridge, 14 Gratt. 334,337. See also, Hughes v. Hughes, 2 Munf. 209. The principal case is cited in Goalter v. Bryan, 1 Gratt. 94, on the question of costs in the probate of wills.
    
   The PRESIDENT

delivered the opinion of the court.

The subsequent marriage, and having of a child, was clearly an implied revocation of the will, and ought to operate as such; since the testator did not after those events took place, republish his will, or signify an intention, that it should be established, or have any force or effect after that period: that his mind upon this subject, was otherwise inclined, appears clearly from the evidence stated in the record. The judgment must therefore be reversed, without prejudice to any written or nuncupative will, made after the marriage and birth of the child, which may be offered, and proved according to law.  