22 F. 872 | U.S. Cir. Ct. | 1885
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
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
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.
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; 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; Bresee v. tittles, 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, 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,*878 by 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, 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.