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![handle is hein.slavery/ssactsengr0142 and id is 1 raw text is: ISIAELL V. RODON (2) [1839J
Lordships will take a little time to consider them, with a view to see if.we can put
an end to the proceedings in the Court below: in the mean time we give no costs.
The case was not mentioned again, and the order below was simply reversed.
[Mew's Dig. tit. COLONY, II. PARTICULAR COLONIES, 22 West Indies.]
[51] ON APPEAL FROM THE COURT OF ORDINARY IN JAMAICA.
SUSAN ISRAELL and Others,-Appellants; HENRIETTA WOOLLERY RODON
and Others,-Respondents * [December 7, 1839].
Marriage and birth of a child do not afford presumptive evidence of intention
to revoke, but are in themselves an absolute revocation of a Will made pre-
vious to the marriage, but not in contemplation of it; the rule being that
there is a tacit condition annexed to the Will, that at the time of making it,
it should not have effect, provided the deceased have a wife, and child sub-
sequently born [2 Moo. P.C. 63, 64].
Such tacit condition is applicable to a Will of personal as well as real estate,
and is annexed to it at the time of making the Will, which speaks from that
period, and not from the testator's death [2 Moo. P.C. 65].
A testator having made his Will previous to his departure from England to
Jamaica, devising his real estate to his brother, and his personal estate
equally among his four sisters of the half blood, marrie4 soon after his
arrival in the West Indies, when a settlement was made of the real, but which
did not include the personal estate. The testator died without having re-
voked his will, leaving his wife enceinte, who was subsequently delivered of
a posthumous child. The executor in England obtained probate from the
Prerogative Court of Canterbury, and having sent out an exemplification of
the Letters of Administration to Jamaica, probate was also. granted there.
A suit having been instituted to recall the probate, on the ground of the Will
being revoked by the marriage and birth of a child,-held by the Judicial
Committee, affirming the sentence of the Court below, that such circum-
stances were an absolute revocation of the entire Will.
This was an Appeal respecting the property described in the last case, from the
sentence of the Court of Ordinary, pronouncing the last Will and Codicil of the
'late Henry Rodon to have been revoked by his subsequent marriage and the birth
of a child, notwithstanding the said Henry Rodon had previously to and in [52] con-
templation of such marriage executed a settlement, wherein he had made pro-
vision for his wife and the children of such marriage.
The question raised upon the Appeal was, whether. such settlement did not
exclude the revocation of the Will and Codicil, which might otherwise have been
presumed from his subsequent marriage and birth of the child.
It appeared that Henry Rodon, previous to his departure from England, (as
mentioned in the last case,) duly made and published his Will, whereby he gave all
his personal estate except such as should be upon or belonging to the Frankfield
and Crawle River estate in the island of Jamaica, to trustees, upon trust, to con-
vert the same into money, and after payment of his just debts and funeral expenses,
to divide the same into four equal portions, the interest whereof he bequeathed to
his four sisters of the half blood respectively, and their issue, in strict settlement:
and as to the moiety of the Frankfield and Crawle River plantations and estates,
with the slaves and appurtenances thereon, he bequeathed the same, subject to
certain charges and annuities therein enumerated, to his brother Francis Rodon,
.his heirs and assigns for ever. By the Codicil the testator made some variation
Present: Lord Brougham, Mr. Justice Bosanquet, Mr. Justice Erskine, the Right
Hon. Sir Herbert Jenner, and the Right Hon. Stephen Lushington, D.C.L.
922
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