10. It is regarded as the primel facie pre sumption from the revocation of a later will, a former one being still in existence and un cancelled, that the testator did intend its restoration without any formal republication. 4 Burr. 2512 ; Cowp. 92 ; 3 Phill. Eccl. 554. But it is still regarded as mainly a question of intention, to be decided by all the facts and circumstances of the case. I How. Miss. 336; 2 Add. Eccl. 125 ; 3 Curt. Eccl. 770; 1 Moore, Parl. Cas. 299, 301 ; 1 Williams, Ex. 155, 156. An express revocation must be made in con formity with the statute, and proved by the same force of evidence requisite to establish the will in the first instance. 8 Bingh. 479; 1 Williams, Ex. 160. If one republish a prior will, it amounts to a revocation of all later wills or codicils. 1 Add. Eccl. 38 ; 7 Term, 138.
Implied revocations were very common be fore the statute of frauds. But since the new statute of 1 Viet. c. 26, 19, as to all estates real and personal, it is provided that no will shall be revoked on the ground of a presumed intention resulting from change of circum stances. Before that, it was held under the statute of frauds, by a succession of decisions, that, even as to lands, the marriage of the tes tator and the birth of children who were un provided for was such a change of circum stances as to work an implied revocation of the will. 2 Show. 242 ; 4 Burr. 2171, in note,
2182 and, finally, by all the judges in Eng land in the exchequer chamber, 8 Ad. & E. 14; 2 Nev. & P. 504. This latter case seems finally to have prevailed in England until the new statute. 2 Moore, Parl. Cas. 51, 63, 64; 2 Curt. Eccl. 854; 1 Rob. Eccl. 680. And the subsequent death of the child or children will not revive the will without republication. 1 Phill. Eccl. 342 ; 2 id. 266.
The marriage alone or the birth of a child alone is not sufficient to operate a revocation.
4 Burr. 2171 ; Ambl. Ch. 487, 557, 721 ; 5 Term, 52, 53, and note. But the birth of a child with circumstances favoring such a re sult may amount to an implied revocation.
5 Term, 52, 53, and .note ; 1 Phill. Eccl. 147. This matter is controlled m most of the Ame rican states, more or less, by statute. In many of them a posthumous child unprovided for in the will of the father inherits the same as if no will had been made. In others, all children born after the execution of the will, and in some states all children not provided for in the will, are placed on the same ground as if no will existed. 1 Williams, Ex. 170, n. 1, 171, n. 1. And by the express frovi glans of the act of 1 Viet. the marriage of the I testator, whether man or woman, amounts to a revocation. 1 Jarman, Wills, 106-173.