3 Binn. 498 | Pa. | 1811
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 The question is, whether in consequence of these circumstances the will was revoked in toto, or only so far as related to the interest of the plaintiff"and her mother in the estate of Abraham Coates,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 The act of 17fi4 has been repealed, hut it is unne
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.
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.
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
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
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.
“ 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-
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
Judgment for defendant.