We are of opinion that the birth of the child, together with the other circumstances set forth in the special verdict, do not in Law amount to a revocation of the will.*
M'Cay v. M'Cay, 5 N.C. 447, 1 Mur. 447 (1810)
July 1810
·
Supreme Court of North Carolina
5 N.C. 447, 1 Mur. 447
Alfred M’Cay and others v. William M’Cay, an infant, &c.
"iFran Rowan.
A. had a child horn after he had made and published his will, and in his last sickness enquired of the Physician who attended him, and who was one of the witnesses to the will, “ whether he thought him dangerous, and begged for a candid answer, for that his youngest child was unprovided for, and he wished to make some provision for the child.” The physician answered, “that he thought him better, and expressed a wish that he would postpone such a business to some future period.” A. died, and it was Jield, that the birth of the child after the making of the will, together with the declarations of A. to his physician, of his wish to make a provision for the child, did not amount to a revocation of the will.
This was an issue of “ devisavit vel non,** made up muler the direction of the Court, upon a paper writing offered for probate as the last will of the late Judge M’Cay. The facts are set forth in the following special verdict:
“ The Jury find that Spruce M’Cay, Esquire, did, on the 23d day of February, A. D. 1803, duly make and publish his last will and testa • ment in the words and figures following, that is to say, &c. And the Jury further find, that the same was executed in the presence of two credible witnesses, no one of whom was or is interested in the devise of the said lands, and attested by them: and that the testator was, at. the time of making and publishing said will, of sound mind, memory and understanding. And they further find, that after the making and publishing of the said will, to wit, in the month of April, 1804, the said testator had a child born of his wife Elizabeth, named William, who is the Defendant and caveator against the will. And they further find, that afterwards, viz. in the fall of the said year 1804, the said Spruce M’Cay was sick, and attended by Doctor William Moore, one of the witnesses to the said will; and that he, in a conversation then had with the said Doctor Moore, asked the said Doctor if he thought him dangerous, and begged the said Doctor to be candid in his answer, for that his youngest child, meaning the said William, was unprovided fpr, and he wished to make some provision for the said child. Upon which the said Doctor Moore said, he thought him better, and would prefer his postponing such a business to some future period. And they further find, that the said testator, at the time of such conversation, in*448tended to make some provision for his youngest child William. And they further find, that tire said testator was much pleaséd with the said William, called hirh a fine boy, and was as fond of him as of any other of his Children. And they further find, that the said testator, afterwards, to wit, on the 25th day of February, 1808, died without altering or revoking his said will, unless what is stated as‘aforesaid alters or revokes the same. If, therefore, the Court should be of opinion, that the birth of said child, attended with the circumstances aforesaid, is a sufficient revocation of the said will, then they find, that the paper Writing now produced, is not the last will and testament of the said Spruce M’Cay, deceased, and that he did not devise. But if the Court should be of a contrary opinion, then they find that the same paper writing is the last will and testament of the said Spruce M’Cay, and that he did devise.”
The foregoing special verdict was sent to this Court for the opinion of the Judges $ and