Tit.ghman C. J.
Abraham Coates, the father of the plaintiff, made a will during the life of his first wife, by which he disposed of all his real and personal estate, and having ordered his debts &c. to be paid, he gave power to his executors to sell any part of his estate when necessary and expedient for the execution of his will. The first wife died, having never had issue. Afterwards, the testator married a second wife, the mother of the plaintiff, and died leaving his wife enseint. The plaintiff was born about two months after her father’s death. The question is, whether in consequence of these circumstances the will was revoked in toto, or only so far as related to the interest of the plaintiff"and her mother in the estate of Abraham Coates,
Marriage and the birth of a child, both subsequent to the making of a man’s will, are circumstances by which his situation is so completely altered, that it cannot reasonably be supposed he intended the will to remain in force. Such was the presumption of the civil law; but it was long before the same principle was ingrafted on the common law. The lawyers and the people of England have always shewn a marked jealousy both of the principles and practice of the civil law. But by degrees, in cases where the civil law is clearly right, jealousy gives way to good sense and justice. First of all it was agreed, that subsequent marriage and issue should operate as an implied revocation of a will of personal estate. As cases occurred, which turned the minds of the judges to this subject, it was perceived there was no solid ground for a distinction between real and personal estate. At length it was, settled in the cases of Christopher v. Christopher, decided in 1771, and Spraage v. Stone, decided in 1773, that a subsequent marriage and issue should be an implied revocation of a will of land. Prior to this, in the year 1764, the legislature of Pennsylvania being struck, in consequence of an event which took place in the city of Philadelphia, with the imperfection of the common law as then understood, made a provision for all cases which could occur under a subsequent marriage. The act of 17fi4 has been repealed, hut it is unne*508cessary to, say more of it, as it was in substance reenacted by '"the act of 19th April 1794, sect. 23, which is as follows,— “ Where any person shall make his last will, and afterwards “ marry, or have a child or children not provided for in such “ will, and die leaving a widow and child, or either widow or “ child, although such child or children be born after the “ death of their father, every such person, so far as shall re- “ gard the widotu or child or children after born, shall be “ deemed and construed to die intestate, and such child or “ children shall be entitled to such purparts, shares, and divi- “ dends of the estate real and personal of the deceased, as “ if he or she had actually died without any will &c.” The case before us is comprehended in this act, and upon a literal construction the testator is to be considered as dying intestate, so far as regards the widow and child, and no further. But the counsel for the plaintiff insist on the will’s being void in toto. The act of assembly, say they, is affirmative, and therefore does not interfere with the provision of the common law. That indeed is the point on which this cause turns. The common law must govern, unless it can be fairly inferred from the act of assembly, that it ought not to govern. It appears to me, that it was the intention of this act to make a complete provision for the case in question, and that the common law has no room for operation. Here is a marriage and a child born, subsequent to the will. In such case, says the act, the testator shall be deemed to die intestate, so far as shall regard the widow and child. Although not expressed, it is necessarily implied, that the intestacy shall go no further. Why should it? ,The will may contain very useful provisions, not interfering with the interest of the widow and child. The case before us shews it. By our law land is subject to the payment of debts. The management of the sale of the land is a matter of importance. Much depends on the integrity and ability of the person to whom this trust is committed. The testator having made a selection of a trustee from his own personal knowledge and experience, what good reason can be assigned for substituting another in his place, especially as such substitution must b^ attended with additional expense? But this is not the only point of view in which the subject is to be considered. We are now *509about to establish a general rule, which will extend to all cases in which the common law revokes a will in consequence of marriage and issue. A will may contain other useful provisions, besides a power to sell ÍQr payment of debts. It may authorize an executor to execute conveyances, and carry into eifect contracts made by the testator in his life time. The testator may have been himself the executor of some other person, and the executor appointed by him will succeed to his trust. But if the will is void in toto, this succession will be destroyed. The act of assembly seems therefore to have made a better provision than the common law. At all events it is a different provision, and therefore by necessary-implication the common law is taken away.
But it has been contended, that the only case in which the act leaves part of the will in force, is where part of the estate is devised to children. This argument is founded on a subsequent part of the 23d section which I have not yet mentioned. I think it is too much strained. The part of the act alluded to makes provision for partition to be made by order of the Orphan’s Court. That this power to make partition confined to cases where part of the estate is devised to children, may be true; but to say that the act makes no provision for any other case, is begging the question in dispute, and is contradicted by the former part of this section, which makes complete provision in other cases.
Upon the whole, I am of opinion that the will of Abraham Coates was not revoked in toto, but remained in- force So far as related to the appointment of executors, and the power given them to sell the lands for payment of debts.
Ye ates J.
I consider the present case as governed by the provisions of the 23d sectio.n of the act of assembly passed on the 19th April 1794, .3 Dali. St. Laws 532., and to fall within the express words of that law. Abraham Coates made his will in 1797,after the passing of the act, and died leaving a widow to whom he was married in 1802, and a child born after his death, who of course were not provided for jn his will. So far as regards his widow and child, he must be deemed to have died intestate; and the plaintiifhis child was intitled to such share of his estate real and personal, as' if he had actually died without any will.
*510It cannot be denied, that the inconveniences resulting ' from the státe of the common law, produced this section of the act of April 1794. Marriage alone and birth of children alone, were not sufficient to operate the revocation of a previous will; and however strongly the inclination of the courts was with the children, they held that they could not set aside a solemn will, because some of the children were left unprovided for. 5 T. R. 54. note., 4 Bur. 2171. 2182. It is obvious, that the legal presumption arising on an alteration of circumstances not contemplated by the testator, that such was not his will, and that he would have made a very different testament if he had not been prevented by accident or ignorance, must in many instances have disappointed his real intentions, when those events have been construed to amount to a total revocation of his will. The legislature by their act of 23d March 1764, 1 Dali. St. Laws, App. 48. s. 5. pursued a juster system, and better calculated to carry into execution, what might reasonably be supposed to be the dictates of an honest mind. “ So far as shall regard the widow, “ or child or children afterborn, the party shall be deemed “ and construed to die intestate.” So forcibly were the lawmakers struck with the propriety of this provision, that they give it a retrospective operation as to all wills made from and after the 4th day of February 1748. The 23d section of the law of 1794 agrees substantially with the 5th section of the law of 1764, except that the words of the law now in force are more minute and particular.
But it has been contended, that the present case is not embraced by this law, which only respects cases where other children share with the afterborn child; and that this is manifested by the powers granted to the Orphan’s Court in the concluding terms of the section. It is said to contemplate the case of a child as devisee under the will, and that the expressions “ such part of the estate as cannot be divided” &c. refer to other shares; and that though it goes further than the common law does, as in the instance of a widow alone surviving her husband, yet in the case of a widow and child surviving the common law still remains, the act of assembly implying no negative therein.
To this it is properly answered, that the principal case *511falls within the terms, of thé preceding part of the section, and the powers delegated to the judges of the Orphan’s Courts do not derogate from this exposition thereof. If only the child born after the making of the will survives the parent, the whole of the real and personal estate descends to such child, after payment of debts and funeral expenses, without any order of the Orphan’s Court. If the widow and the child survive, then partition may be made between them, of the lands agreeably to the 22d section of the act on a petition presented to the Orphan’s Court. If the lands are devised to a child, then partition may be made between such child and the issue born after making the will; or the premises may be valued, in case partition cannot be made without prejudice to or spoiling the whole of that part of the estate devised to such child. It is perfectly clear, that the case before the court is within the reason and spirit of the law; and it is equally clear from our whole system of laws, as well as from the third section of the act under consideration, that heirs can only take under the ancestor the remainder of his estate real and personal, after payment of his debts.
Marriage after the making of a will, or leaving a child born subsequent thereto and not provided for therein, is only a revocation pro tanto, so far as the widow and child are interested, under the plain meaning of our act of assembly; but by the common law, marriage and the birth of a child subsequent to the will operate as an entire and total revocation thereof. This forms a strong distinguishing feature between the two codes. In the view which I have taken of the subject, I conceive that the appointment of executors would remain in full force, notwithstanding the subsequent marriage and having issue; and that a power granted to the executors to sell the real estate, would continue unrevoked, provided such sale did not injuriously affect the interests of the widow or child, as to their purparts shares and dividends of the estate real and personal of the deceased.
Here the creditors of Abraham Coates were pressing for their demands, and some of them had even proceeded to judgment against him in his life time, and against his executors after his death. The personal estate was inadequate to the discharge of the debts. To effect this object, one of thfee *512modes must necessarily have been recurred to; a sale of the ^anc^s by the sheriff, or by an administrator raised up for that purpose under an order of Orphan’s Court, or by the executors named in the will. The last measure has been adopted; and after every prudent precaution had been used to insure a fair price for the lands by public advertisement in 1805, the same were sold and conveyed to the defendant for 4000 dollars, their full value, on the 25th March 1807. It was proved on the trial that 3750 dollars has been expended in payment of the debts of Abraham Coates, and that several debts still remain unpaid. The defendant has made some small improvement on the land. The plaintiff’s counsel declare their willingness to be subjected to such terms, as the court may impose in favour of creditors, but at the same time insist that their client should have the benefit of the increased value of the property. Their claim in this particular in my idea, can rest on no other equitable grounds, than that the creditors were willing to wait for payment of their demands, which is contradicted by the evidence exhibited on the trial. If the land had not been sold by the executor, it must unavoidably have been sold by the sheriff at an increased expense, and most probably it would have been struck off at an inferior price.
I scarcely need subjoin, that the tenth exception taken to the administration account exhibited by the executor, which is now pending in this court by appeal from the Orphan’s Court, that the land was not sold at a full and fair price, is directly opposed to the recovery of the land itself.
On the whole, I am of opinion with the defendant on the reserved point.
Brackenridge J.
“ A will may be revoked either abso • “ lutely or conditionally, in all or in part; and if it be revoked “ only in part, the rest will stand.” Bowel on Devises 614. This is with respect to a particular devise in a will; as in the case of a devise in fee to A, and afterwards a mortgage of the premises to B, it is a revocation of the devise to A, so far as to subject it to the mortgage. And “ revocations pro “ tanto may affect it, either by altering the quality of the ££ estate, in abridging the interest in0 or diminishing the- *513“ quantity of the thing devised.” Id. 623. Carry this principle out, and what hinders a revocation of the whole devise to one, and yet the will stand as to devises to others? What is in the way of a revocation of every devise, and yet the will stand as to some purposes, such as the appointment of exeoutors f I can see nothing, and will so hold it. The administration of the personal estate, the sale of lands .for the payment of debts, may be, and is in most cases, a great object. It is a matter of moment that there be a power to sell lands and pay debts in the first instance,to save the expense of process, or application to an Orphan’s Court; and why supersede the commission of appointment, if it may be so called, by the testator himself, in the constituting his executors? I can see no necessity for it; but that this power may stand, even though every other part of the will be set aside.
The act of assembly itself of the 19th April 1 Y9¿í evidently looks to a setting aside in part. The words, “ so far as shall “ regard &c. shall be deemed and construed to die intestate,” imply a partial avoiding of the will, and not a total revocation.
This being the only point in the case which appears to me to have remained to be settled, I shall say nothing of the question as to a man’s being married when he makes his will, and not a bachelor, and afterwards marrying and having a child; for the reason is the same in both cases, and the laxu must be the same. It has already been decided in the English books. Nor, were it the case of a married man having children, and making his will and dying, and one after born of whose existence he could not be supposed to have had a knowledge before his death, would there be any difference, there being the same reason. The revocation, or rather the annulling, avoiding, qr setting aside, in these cases, is by operation of law; but need be carried no farther than quoad hoc, Unless the case should be such, that the avoiding one part must in the nature of it avoid the whole, of which I cannot conceive an instance at this moment of my recollection, I take every thill to be subject to such a disposition of the laxu in favour of humanity, that in a case where the testator was under a natural and moral obligation to provide for his offspring, whose existence he did not know, the laxu will do it *514for him; though had he known of the existence, the common " law would not go so far as the civil law, and set aside an, inofficious testament. This goes on the idea, that he must be supposed tacitly to have annexed a condition to his dispositions, that these shall stand, provided no- such change happens in the relations of his duty as shall call for a different distribution. In the case before us I think the sale good, there being no fraud in fact in the consideration of the purchase, and the object of making sale being honest, and what the law would in another way have compelled, the payment of ■debts. Nor, strictly taken, do I think the sale void, taking into view the person of the vendor or vendee, when it is to supersede what has been done for the good of all concerned at the time of the transaction; it being the mere accidental rise in the value of property subsequent to the sale, that has given rise to the wish of avoiding it. I think the unfairness and dishonesty are all on the other side, if there is any on either side, and are not to be favoured.
Judgment for defendant.