92 Ky. 186 | Ky. Ct. App. | 1891
delivered the opinion of the court.
James Leonard died testate in the year 1871. He willed his estate, consisting of a small house and lot in the city ■of Louisville, to his wife in fee. At the time he made the will he had one child, a son about seven years old, and in about two months after his death the appellant, his daughter, was born. She now claims that she was a pretermitted child, and that under section 25,- chapter 118,
Said section provides : “ If a will is made when a testator has a child living and a child is born afterwards, such-after-born child, or any descendant of his, if not provided for by any settlement, and neither provided for nor expressly excluded by the will, but only pretermitted, shall succeed to such portion of the testator’s estate as he would have been entitled to if the testator had died intestate ; towards raising of which portion the devisees and legatees shall, out of what is devised and bequeathed to them, contribute ratably, either in kind or in money, as a court of equity, in the particular case, may deem most proper,” etc.
To entitle the after-born child to the benefit of this section of the statute the testator must have a child, or children, living at the time the will is made, and if the after-born child has not been provided for by any settlement, nor provided for by will, nor expressly excluded by the will, it shall be deemed that such child was unintentionally omitted — “ pretermitted ” — from the benefit of the testator’s bounty ; but if it appears from the will by expressed words of exclusion or by tantamount expressions that the testator intended to omit the after-born child from the benefit of the will, it is not, in the sense of the statute, a pretermitted child. It makes no difference in what form such intention may be expressed in the will; it may be by direct words of exclusion or it may be plainly seen from the whole will that the testator intended to exclude the after-born child, and if thus seen it is¡
The judgment is affirmed.