Brewer, J.
In this case, the primary question I am reluctantly compelled to decide in favor of the complainant Wasserman. I say reluctantly; for when a man, on the eve of death,having a child five years of age, and living with a wife to be delivered of a second child within 20 days, makes a will giving all his property to his wife, I think the common voice will say that he intended no wrong to either *875the born or nnoorn child, but trusted to his wife — -their mother — to do justice by each, and believed that she, with the property in her hands, could handle it more advantageously lor herself and children than if interests in it were distributed. As a question of fact, independent of statute, I have no doubt that Mr. Wasserman had no feeling either against the born or unborn child, but, having implicit faith in his wife, meant that she should take the entire property, and believed that out of that property and her future labors she would take care of his children. But the legal difficulty is this: The statute says that it must be “apparent from the will that the testator intended that the unborn child should not be specially provided for. IIow can any intention as to this child he gathered from the will alone ? It simply gives everything to the wife; is silent as to children. If I could look beyond the will, my conclusion would be instant and unhesitating. Limited by the statute to the instrument itself, what can he gathered therefrom? It is simply a devise of all property to the wife. No reference is made to children, born or unborn. Can I infer from its silence an intention to disinherit? If so, the mere «missions from a will would always stand as proof of an expressed intention. And whatever of apparent hardship there may be in the present case, a fixed and absolute rule prescribed by statute cannot, for such reason alone, be ignored. That the rule was intentionally thus prescribed, is evident, not alone from the clear letter of the statute, but also from the history of this question at common law, and the various provisions of the statutes of other states. At common law the will of an unmarried man disposing of all his property was presumably revoked by his subsequent marriage and the birth of a child. This rule was borrowed from the civil law. “Qui jiUum in poteslate habet, curare debet, nl eum, hesredem instituat, vel ezlueredem eum nominaiim faciat.” Just. Inst. lib. 2, cap. 18, § 5; Hadley, Introduction Roman Law, 815. Whether revocation would follow from subsequent marriage alone, or birth of child alone, was, perhaps, a doubtful question. In Brush v. Wilkins, 4 Johns. Ch. 506" court="None" date_filed="1820-08-01" href="https://app.midpage.ai/document/brush-v-wilkins-5550406?utm_source=webapp" opinion_id="5550406">4 Johns. Ch. 506, it was hold that both must concur; while in M’Cullum v. M’Kenzie, 26 Iowa, 510" court="Iowa" date_filed="1868-02-02" href="https://app.midpage.ai/document/mccullum-v-mckenzie-7094277?utm_source=webapp" opinion_id="7094277">26 Iowa, 510, the birth of a child alone was adjudged sufficient. See, generally, upon this question, 1 Redf. Wills, c. 7; 1 Williams, Ex’rs, c. 3, § 5; 4 Kent, Comm. 421-426. It was also, for a while at least, disputed whether such revocation followed absolutely from subsequent marriage and birth of child, or was only to he presumed, and the presumption subject to he overthrown! by evidence of the testator’s intentions.
Lord Mansfield, in Brady v. Cubitt, 1 Doug. 89, ruled that the presumption of revocation from marriage and the birth of issue, like all other presumptions, “may he rebutted by every sort of evidence.” See, also, 1 Phillim, 473, Such seems to have been generally the ruling of the ecclesiastical courts. On the other hand, in Holford v. Otway, 2 H. Bl. 522, Chief Justice Eyre held that “in cases pf revo*876cation by operation of law, the law pronounces upon the ground of a presumptio juris et de jure that the party did intend to revoke, and that presumptio juris is so violent that it does not admit of circumstances to be set up in evidence to repeal it.” And in the leading case of Marston v. Roe, 8 Adol. & E. 14, by all the judges in the exchequer chamber, it was finally decided that the revocation of the will took place in consequence of a rule or principle of law, independently altogether of any question of intention of the party himself. Such being the final solution of the question in the English courts, it cannot be that the purpose of the statute in question was to open the door to any other evidence of intention than those expressly named. On this side of the waters the matter has generally been regulated by statute, with a prevailing tendency to declare that the after-born child takes the same share that it would have done if the father had died intestate; or, in other words, that the will is absolutely revoked pro tanto, unless, there is some provision made for such child, or an express intention that it should receive nothing. The statute of Wisconsin is identical with that of Nebraska; and in Bresee v. Stiles, 22 Wis. 120" court="Wis." date_filed="1867-09-15" href="https://app.midpage.ai/document/bresee-v-stiles-6599827?utm_source=webapp" opinion_id="6599827">22 Wis. 120, the inquiry as to testator’s intentions was declared to be limited to the language of the will, and, the will being silent, the after-born child inherited. See, among many cases, the following, which show how carefully the courts have enforced the rule of revocation pro tanto in the interest of the child: Waterman v. Hawkins, 63 Me. 156" court="Me." date_filed="1873-07-01" href="https://app.midpage.ai/document/waterman-v-hawkins-4932603?utm_source=webapp" opinion_id="4932603">63 Me. 156; Walker v. Hall, 34 Pa. St. 483; Hollingsworth’s Appeal, 51 Pa. St. 518. In the first, the testator left certain real and personal estate to his widow during her life and widowhood, to revert to his heirs upon her death or marriage, and gave the rest to his father. A daughter born two months after his death was held unprovided for by the will, and recovered the share of the estate she would have taken if he had died intestate. In the second, the testator gave his entire estate to his wife, saying in the will, “having the utmost confidence in her integrity, and believing that should a child be born to us she will do the utmost to rear it to the honor and glory of its parents;” and the same ruling was made. In the last case the will in terms committed any after-born child to the guardianship of his wife, adding, “which guardianship I intend and consider a suitable and proper provision for such child;” and still a similar decision was pronounced. Further citations would seem unprofitable.
To sum the matter up, the common-law courts of England finally reached the conclusion that the revocation was absolute upon the happening of marriage and birth of issue, and not dependent upon evidence of testator’s intentions. The general tendency of statute law in this country is in the same direction, and courts, as a rule, have carefully protected the rights of the after-born children. The language of the statute is plain and unambiguous. The will makes no provision for this child, does not mention or refer to her, and on ito face manifests no intention that she should be unprovided for. *877Hence it must be held that she takes the same share in the estate which she would have taken had her father died intestate, to-wit, one-half.
Again, it is contended that the will was duly probated; that the probate is in the nature of a proceeding in rein with notice to all the world; that by it the title was vested in Mrs. Wasserman; and that any party taking the title from her without notice of the existence of any subsequently born children took good and full title.
' This is a mistake. The probate of a will is conclusive only as to its due execution. Comp. St. c. 23, p. 229, § 143; Pettit v. Black, 13 Neb. 142" court="Neb." date_filed="1882-07-15" href="https://app.midpage.ai/document/pettit-v-black-6643609?utm_source=webapp" opinion_id="6643609">13 Neb. 142; S. C. 12 N. W. Kep. 841. It does not determine the title of property which is claimed under it. Evans v. Anderson, 15 Ohio St. 324. In this case the court say:
“The probate did not strengthen the title, but gave the will effect as evidence, and made it available. Who shall take the estate and who not, was not passed on by the probate court. This can only bo determined by the law which declares the effect of the will. The devisee held the title under a valid will, subject to tiie condition imposed by the statute that the will shall become void on the birth of a subsequent child. If this child had not been born alive, it would still be good. By his birth the will became void; not by reason of an erroneous probate, or the want of any fact necessary to be proven as a foundation of that judicial sentence. The sentence is therefore immaterial. The court was not called on to impugn the sentence, but simply to declare the effect of the will in its relation to the parties. ” Vallan v. Qhidester, 46 Iowa, 588" court="Iowa" date_filed="1877-10-04" href="https://app.midpage.ai/document/fallon-v-chidester-7097508?utm_source=webapp" opinion_id="7097508">46 Iowa, 588; Bresee v. tittles, 22 Wis. 120" court="Wis." date_filed="1867-09-15" href="https://app.midpage.ai/document/bresee-v-stiles-6599827?utm_source=webapp" opinion_id="6599827">22 Wis. 120; 8 liedf. Wills, 61; 1 Jarm. Wills, (3d Amer. Ed.) p. 22, etc.
Here the execution of the will is not challenged. Its validity is not denied. There is no attempt to set aside the probate. But the contention is that, conceding that it was duly executed and properly probated, and assuming that it was valid, events occurring subsequent to its execution have limited its scope and operation. This was a question not submitted for decision when the bill was tendered for probate, and a question which is now for the ñrst time submitted for judicial determination.
Finally, it is said that under sections 150, 156, 157, 158, and 159 of chapter 23, the remedy of Anna Wasserman is by a proceeding against the devisee in the will, her mother, for contribution. I think not. While such a proceeding may be proper, and in some cases necessary, — as, where the estate is personalty, and has been distributed, or partially so, or where there are specific bequests or devises, or where the testator has nained some children and omitted others, and equities may arise out of advancements, (Hill v. Martin, 28 Mo. 78,) — nevertheless, contribution is not the only remedy. She took as heir, and the heir may claim the property itself. In Smith v. Robertson, 89 N.Y. 555" court="NY" date_filed="1882-10-10" href="https://app.midpage.ai/document/smith-v--robertson-3578900?utm_source=webapp" opinion_id="3578900">89 N. Y. 555, a case like this, the court says:
“The remedies given by the statute against devisees, to recover a portion of the property where only a portioii descends to an after-born child, do not operate to subject the estate of such child to power of sale contained in the will, or to coniine his remedies to a pursuit of the proceeds of sale. He is entitled, *878by the plain terms of the statute, to recover the same portion of the corpus of the estate which he would have been entitled to had his father died intestate.” See, also, same case in 24 Hun, 210; Mitchell v. Blain, 5 Paige Ch., 588" court="None" date_filed="1836-03-15" href="https://app.midpage.ai/document/mitchell-v-blain-5548201?utm_source=webapp" opinion_id="5548201">5 Paige, 588; Sanford v. Sanford, 61 Barb. 295; Rockwell v. Geery, 4 Hun, 611; Catholic Ben. Ass’n v. Firnane, 50 Mich. 82; S. C. 14 N. W. Rep. 707.
These are the only questions presented. My conclusions, therefore, are in favor of the claims of Anna Wasserman. Counsel will prepare a decree accordingly.