Stevens v. Shippen

| New York Court of Chancery | Oct 15, 1877

The Chancellor.

The questions presented for consideration on the hearing were, whether, under the resolution of congress, approved by the president July 17th, 1862, which, by its terms, released and conveyed the unfinished vessel known as the “ Stevens Battery ” to the “ heirs at law of Robert L. Stevens, deceased, or their legal representatives,” the title to that vessel passed to those heirs at law or their legal representatives, or to Edwin A. Stevens as his residuary legatee; and, if the title passed to Edwin A. Stevens as such legatee,, whether the gift of that vessel to the state of New Jersey, in and by the codicil to his will, was absolute or conditional, and the questions, whether the charitable gifts in the codicil are valid, and whether the birth of a child of the testator, after the making of the codicil, was a revocation of the devise of Castle Point and the testator’s homestead property •therein.

Edwin A. Stevens died in August, 1868. Hé left a will and a codicil thereto. The former is dated August 5th, 1865, and the latter April 15th, 1867. By the will, he gave all his property, after the payment of his debts and funeral expenses, to his wife and the children which he then had— John, Edwin, Robert, Mary, Julia and Carolina. By the codicil, he gives to his son Albert $100,000, to put him on an equality with the rest of the testator’s children, to each of whom he had, by the will, given the like sum. He adds that it is his will that every child he should thereafter have should also be upon a like equality with the children which he had at that time, and that each child that might thereafter be born should be entitled to a like sum out of his estate. He gives to his wife for life his residence known as Castle Point and the homestead lot, and the houses thereon. He then directs his executors to divide Castle Point and the homestead lot, and the houses thereon, into four convenient plots, not necessarily of equal value, and directs that his wife shall .determine which one of his sons shall have the plot on which the mansion-house stands, and directs that the executors set off the other three plots to his other three sons; and adds that the estáte of his sons in their respective plots shall be a fee simple. He then directs his executors to purchase of the Hoboken Land and Improvement Company, and cause to be conveyed to his wife Martha B. Stevens, William W. Shippen and Samuel B. Bod, and to their heirs and assigns forever, to hold as joint-tenants and not as tenants in common, in trust, two school-house lots in Garden street, Hoboken, owned by them, as they were then fenced in, and the school-houses thereon, and all of the furniture and property of that company on those lots or in those school-houses; and gives to them, to be held in like manner, all his own right, title and interest in those lots, houses and property. The trust declared is to permit the city authorities of Hoboken (or such other authorities as shall at anytime have the legal power over the. common schools in the boundaries of that city, as those boundaries then were, and which were then possessed by the • city authorities of Hoboken) to use and occupy the property for the purposes to which they had been theretofore devoted, viz., to no other use or purpose than the furnishing there a free, plain and practical English education to such of the children resident within those boundaries, from time to time, as said authorities shall permit to go there for said purposes. He further gives to his wife and Messrs. Ship-pen and Bod, and to their heirs and assigns forever, to hold as joint-tenants and not as tenants in common, in trust, as thereinafter declared, a block of land in Hoboken (excepting such interests therein, if any, as he might not own at the time of his death) and $150,000 in stock and railroad bonds, in trust, to erect, out of the proceeds of the personal property; upon that land, within two years after his death, a building or buildings suitable for the uses of an institution of learning, which he directs his acting trustee or trustees for the time being to establish there: they to employ, pay and discharge at discretion the officers, tutors and servants thereof, and forever to manage and control it at his, her or their discretion, but for the benefit, tuition and advancement in learning of youth residing from time to time thereafter within this state; the acting trustee or trustees for the time being, however, to decide, from time to time, who of said youth shall receive the benefit thereof, and to direct the tuition in the institution, and to make all proper by-laws, rules and regulations for the management of the officers, tutors, servants and scholars connected with the institution; the tuition, however, is not to be wholly free, except to such youth as the acting trustee or trustees shall direct; and, on the other hand, the cost of tuition of any youth is not to be wholly paid by him or her — the proportion of payment by each youth being left to the discretion of the acting trustee or trustees. He also gives to the trustees such sum of money, not exceeding $500,000, as they in their discretion may think necessary, to be invested and appropriated for the perpetual maintenance of the institution.

The testator empowered his executors, out of the residue of his estate (excluding Castle Point and the homestead lot and houses thereon) remaining after payment of his debts, the sum of $800,000 in legacies, and the appropriation of so much thereof as is necessary for the charitable bequests and devises, to apply not exceeding the sum of $1,000,000 to finish, on his general plans, as nearly as may be, in the discretion of his executors, the battery known as the Stevens Battery, and for the accomplishment of that object he gave to them the use of the dock and yards and basin theretofore appropriated to the battery, and all the material provided for it. He further directed as follows: “When said battery shall be finished, I direct my executors to offer the same to the state of New Jersey as a present, to be disposed of as the said state shall deem proper; and if not accepted by the said state, I direct my executors to sell the same, and the proceeds thereof shall fall into the residue of my estate.” The testator subsequently gives the rest and residue of his estate, both real and personal, whatsoever and wheresoever the same may be, subject to the devises and bequests in the codicil, and of course excepting Castle Point and the homestead lot, and the houses thereon, to his wife and children, born and to be horn; each of his sons to have two shares, his wife two shares, and ■ each of his daughters one share.

The testator’s son Richard was born after the making of the codicil.

The executors are Mrs. Stevens and Messrs. Shippen and Hod.

The original hill was filed by Mrs. Stevens on the 23d of December, 1868, against Messrs. Shippen and Hod, her co-executors, and the attorney-general of this state, and Mary P. Garnett, a daughter of the testator, as one of the residuary legatees and heirs at law of the testator. It was designed to raise the question as to the validity of the gifts for charitable purposes and of the gift of the battery. One of the objections raised by that hill to the latter was based on the provision of the constitution of the United States, that no state shall, without the consent of congress, keep ships of war in time of peace. The defendants answered the bill, and replication was filed April 21st, 1869. Subsequently congress, by resolution of July 1st, 1870, consented that the state receive and dispose of the battery. On the 11th of September, 1871, Mrs. Stevens and her children filed a supplemental bill against the governor of the state, the commissioners of the state appointed in reference to a sale of the battery, the attorney-general, and Mrs. Lewis, formerly Mrs. Garnett. It stated the death of one of the complainants in the original bill since the filing thereof, and that Richard Stevens, one of the complainants, the youngest son of the testator, was born after the making of the codicil. It alleged, as an additional objection to the gift of the battery, the impossibility of finishing the vessel, according to the testator’s plans, for the sum of $1,000,000. It presented for adjudication by the court the additional questions: Whether the birth of issue after the making of the codicil, although such issue was provided for thereby, was a revocation ? How Castle Point and the homestead lot should be divided ? Whether the executors had duly^executed their trust in reference to the Stevens Institute, and what the executors should do with the school-houses, and how they should execute the trust as to them ?

On the 5th of January, 1872, the defendant exedutors, Messrs. Shippen and Dod, answered, admitting the impossibility of completing the vessel according to the testator’s plans with the amount appropriated for that purpose by the codicil. The attorney-general answered, setting up the resolution of congress authorizing the state to receive and dispose of the battery, and insisting on the right of the state to the vessel. On the 12th of April, 1872, the supplemental bill was amended, by making the heirs at law of Robert L. Stevens, deceased, other than the children of Edwin A. Stevens, parties, in view of the fact that they might claim title to the battery under the resolution of congress (approved by the president, July 17th, 1862,) above mentioned, by which all the right, title and interest of the Hnited States to the vessel was released and conveyed to the “heirs at law of Robert L, Stevens, or their legal representatives.” Subsequently, the attorney-general filed a cross-bill, or information, praying that the executors might be required to offer the battery to the state, in such condition and stage of or towards completion as this court might deem equitable and just, or that they might be required to finish it out of the moneys appropriated by the codicil; or, if those moneys were not sufficient, then to finish it out of their' own money; that the court would declare that the bequest was not on a contingency, and that the last-mentioned resolution of congress conveyed no title to the heirs at law of Robert L. Stevens, deceased, or their legal representatives. The defendants 'having answered the information, the cause now comes on for hearing upon the pleadings and the proofs, all of which were taken before the filing of the information.

To consider, first, the questions raised in regard to the bequest of the battery: Robert L. Stevens contracted with the United States government, in 1843, to construct, on his own plan, a shot and shell proof war steamer, for harbor defence, at the price of about $585,000. He proceeded with the work, and, while it was in progress, died. His death occurred in 1856. In 1849, the United States government, which had advanced $500,000 of the price, refused to make any further payment, and the work was therefore suspended; but it was again resumed in 1853, and was con-' tinued up to or near the time of Robert L. Stevens’s death. At the time of his death he had expended upon the vessel, which was then far from completion, over $113,000 of his own money, besides the amount ($500,000) received from the United States government. By his will, which was dated in 1846, he made his brother, Edwin A. Stevens, his residuary legatee. The latter, and John O. Stevens, were his executors, and duly proved the will. Edwin A. Stevens, however, took principal charge of the administration of the estate. It is not disputed that, if the vessel was part of the estate of Robert L. Stevens, it passed to Edwin A. Stevens, as his residuary legatee. The latter, after Robert L. Stevens’s death, being desirous of carrying -out the project of his brother, continued the work on the battery, and expended about $100,000 of his own money thereon. In 1861, he solicited the United States government to complete the vessel. A hoard of examiners was’ appointed, on the part of the government, to report on the subject, and they, in December, 1861, reported adversely to any further expenditure by tbe government upon tbe vessel. Tbe following resolution was subsequently passed by congress, and was approved by tbe president of tbe United States on tbe 17th of July, 1862:

“A resolution releasing to the heirs at law of Robert L. Stevens, deceased, all the right, title and interest of the United States in and to the Stevens Battery.

“Resolved, by the senate and house of representatives of the United States of America, in congress assembled, That all the right, title and interest of the United States in and to the Stevens Battery, be and the same are hereby released and conveyed to the heirs at law of the said Robert L. Stevens, or their legal representatives.”

After the passage of that- resolution, tbe work on the vessel was suspended until after tbe death of Edwin A. Stevens, when, under tbe direction of tbe codicil to bis will, bis executors proceeded with tbe work with a view to its .completion according to bis plans, and they bad expended of his estate upon it, up to December, 1870, nearly $900,000. Binding, then, that a further sum of from $400,000 to $500,000 (from $300,000 to $400,000 more than the sum they were authorized to expend for tbe purpose,) would be necessary to complete tbe battery, they thereupon, stopped tbe work, and have never since resumed it. The fact that Edwin A. Stevens claimed to be tbe owner of tbe battery in bis life-time was a matter of public notoriety, as was also tbe fact that by his will be bad disposed of it as bis property. And yet it does not appear that any adverse claim to it was at any time made by or in behalf of or under any of tbe heirs at. law or next of kin of Robert L. Stevens, until it was set up in this suit, by answer, in April, 1872. Tbe heirs at law, who now claim it adversely, have stood by, and, without even so much as a protest, as far as appears, seen Edwin A. Stevens expend upon it, in bis life-time, prior to tbe passage of the above-mentioned resolution of congress releasing tbe interest of tbe United States, about $100,000 of his own money. They have, in like manner, notably done the same thing since then — witnessing, without claim or protest, tbe expenditure of nearly a $1,000,000, by bis executors, out of bis estate, in pursuance of Ms testamentary direction, which was based on his claim of ownership and consequent right to dispose of the vessel. It is urged, in their behalf, that some of them were under disability, and, therefore, are not estopped by acquiescence; and, further,, that the heirs at law, or next of -kin, had in fact no claim whatever to the battery until after the approval of the resolution of congress, (July 17th, 1862,) by which the right, title and interest of the United States in it was ponveyed and released.

. I do not deem it necessary to consider whether the doctrine of estoppel may be applied in this case. The title to the vessel, up to the time of the approval of the resolution just referred 'to, was in the United States; and Edwin A. Stevens had, up to that time, acquired no legal title to it under the will of his brother. Under the explanatory agreement, dated November 14th, 1844, between the United States and Robert L. Stevens, for the construction of the vessel, it was provided .that all the materials furnished for the vessel, its engines, boilers, and all their dependencies, should be inspected, received and receipted for by an agent appointed by the secretary of the navy, on the part of the United States, and that when so received and receipted for they should be distinctly marked with the letters “U. S.,” and should become the property of and belong to the United States, and that payment on account of the contract price should be made on the certificate of that agent as to the cost of the materials and labor. Under this arrangement, the vessel, when completed, and in whatever state before then, was the property of the United States. Scudder v. Calais Steamboat Co., 1 Cliff. 370, 378. Though the United States government does not appear to have asserted any claim to it, but, rather, to have regarded the enterprise as an entire failure, it does not, on the other hand, appear that there was at any time any necessity or occasion for such assertion.

Robert L. Stevens had, as has been before stated, expended a large amount of his own money upon the vessel. There could be no question as to his entire good faith in all. his connection with the enterprise. He was actuated solely by a desire to embody and illustrate his own ideas of naval architecture for the purposes of warfare. Hot only was all 'that was received from the government faithfully expended, but he did not spare his private funds. He had given security for the performance of his contract. The vessel was in. his possession up to the time -of his death, and, after that, in the possession of Edwin A. Stevens as his residuary legatee. Robert L. Stevens, in his life-time, and his brother, after his death, as his residuary legatee, had an equitable interest (using the term interest not in the technical but in the popular sense) in the vessel. If the vessel had been finished, and had proved to be the impregnable, movable fortress which they appear to have believed she would be, or even a success, they had reason to expect from the bounty, not to-say justice, of the government, at least repayment of the private funds expended in its construction.

It is evident, from the language of the resolution, that congress intended only a relinqfiishment of the title of the government to the property for the benefit, and it will be presumed to have been intended in augmentation of, the estate of Robert L. Stevens. The language is, “ the heirs at law of the said Robert L. Stevens, or their legal representatives.” There appears to have been no reason why the government should make the heirs at law, rather than the next of kin or residuary legatee of Robert L. Stevens, the recipients of its bounty. In Stevens v. Bagewell, 15 Ves. 139, 152, a warrant of the British treasury ordering payment of prize-money to the “representatives” of a deceased lieutenant of the British navy, was construed to entitle his residuary legatee-to it. Said the court: “ The captured effects being condemned to the crown, no right to any part of the produce can accrue to any one except by the gift of the crown; and as Lieutenant Stevens died before any gift was made, bis will could have no direct operation upon the subject of that gift. But the intention of the crown, in all eases of this kind, is to put what is in strictness matter of bounty upon the footing of matter of right. * * * * In such cases, the crown never means to exercise any kind of judgment or selection with regard to the persons to be ultimately benefited by the gift. The representatives to whom the crown gives are those who legally sustain that character; but the gift is made in augmentation of the estate, not by way of personal bounty to them. They take subject to the same trusts upon which they would have taken wages, or prize-money, to which the party from whom they claim might have been legally entitled. The representatives of Lieutenant Stevens were, therefore, entitled to receive this money, but upon the same trusts as they would take his general estate ; and this is to be considered as if it had been actually a part of his property at the time of his death.”

The preamble of the subsequent resolution of congress consenting that this state accept the vessel, is some evidence of the intention of that body in the former resolution. It recites that “ Edwin A. Stevens was, in his life-time, the owner of the battery, and that upon the building thereof large sums of money had been spent by him and his brother, and that he had, by his last will and testament, (the United having previously relinquished all claims to the ship,) left it to be finished by his executors,” &c., “ and, when finished, to be offered to the state of New Jersey as a present,” &c. Congress did not intend, by the resolution of 1862, to grant to the heirs at law of Robert L. Stevens, or their legal representatives for their benefit, but merely designed to effect a relinquishment of the interest of the United States in the vessel to those who were entitled to the estate which Robert L. Stevens owned at the time' of his death, and the heirs at law, or their legal representatives, will be held to have received title to it in trust for the residuary legatee, to whom, as part of his personal estate, it would have gone had he had the legal title to it at the time of his decease. Edwin A. Stevens, then, at the the-time of his death, had complete title to and ownership of the battery.

The next question to be considered is, as to the character of his bequest thereof in favor of the state.' By the codicil the executors are empowered to apply not exceeding $1,000,000. to finish the battery; on the testator’s general plans, as nearly as may be, in their discretion, and for the purpose he gives them the use of the dock, and yards and basin theretofore appropriated to its use, and all the material provided for the vessel. The testator adds: “ When said battery shall be finished, I direct my éxecutors to offer the same to the state of New Jersey, as a present, to be disposed of as the said state shall deem proper; and if not accepted by the said state, I direct my executors to sell the same, and the proceeds thereof shall fall, into the residue of my estate.” The battery is only to fall into the residue of his estate in case the state will not accept it. No provision is made in reference to it in any other contingency whatever. The contingency of the inability of the executors to complete the vessel on, or nearly on, the testator’s general plans, was not contemplated by him. The gift is to the state, and the direction given to the executors as to the expenditure to be made upon it has reference solely to the condition in which he desired the vessel to be when offered as a present to the state. The direction is to finish the vessel, and then to offer it to the state as a present, to be disposed of as the state shall deem proper. The bequest is, in effect, a gift to the state of the vessel and of the sum of money, not to exceed $1,000,000, which may be necessary to complete it according to his general plans, or nearly so, with provision that the work of completion shall be done, ■and therefore the requisite expenditure of money be made, by his executors, who are to exercise a certain discretion as to the amount, kind and character of work to be done, (so always, however, that it be in accordance with his general plans, or nearly so,) and as to the expenditure of the money requisite for that purpose. The legacy of the battery to the state is a vested legacy. There is no gift to the executors, but merely a .direction to them to finish the vessel in a certain way, and to offer it, when finished, for acceptance, as a present from him to the state, to be disposed of as the latter shall see fit. The gift to the state is an absolute gift, in presentí, and though the delivery is to be in futuro, it is in no wise conditional. It is as if a man who was building a carriage, which .at his death was not completed, should direct his executors to finish it, and give it, when finished, to. a designated person. The title to the carriage would pass to such person without reference to the executors’ ability to' finish it. The direction to offer the battery to the state, as a present, is a bequest of the vessel to the state. Where a testator expressed in his will his desire that his executors should give to another a specified sum of money, without prescribing any time of payment, it was held a good bequest. Brest v. Offtey, 1 Ch. R. 246. And, where a testator gave to his wife, among other things, his goods and furniture in his house at the time of his death, and “ desired” her, at or before her death, to give the same to and amongst such of his own relations as she should think most deserving and approve of, and she died without making such disposition of them, it was held that she took only a life-estate in the chattels, and that, she having died without disposing of them as directed by the will, they went to her husband’s relations, and they were ordered to be divided among his next of kin. Harding v. Glyn, 1 Atk. 469. By the terms of the gift, the battery is to be at the disposal of the state. The gift, therefore, is vested and absolute. 1 Ropier on Legcocies 642. My conclusion is, that the title of the state to the vessel is valid and unconditional.

The gifts for charitable uses and purposes next claim consideration. The devise to the executors as trustees of the school-houses and furniture, and the lots whereon the houses stand, for the sole use and purpose of furnishing there a free, plain and practical English education to such of the children residing within the boundaries of the city of Hobo-ken, from time to time, as the authorities of that city, or such other authorities as shall at any time have the legal power over the common schools in the boundaries of the city as they existed at the time of the testator’s death, shall permit to go there for those purposes, is a valid gift, and a charitable trust is thereby created which this court will recognize. So, too, as to the gifts for what is now known as “ The Stevens Institute of Technology.” They are for a charitable use. The trust is for the benefit, tuition and t advancement in learning of the youth residing from time to time “ hereafter” within the state of New Jersey; the acting trustee or trustees from time to time to decide who of said youth shall receive the benefit thereof, and to direct the tuition in the institution, and make all proper by-laws, rules and regulations for the management of the officers, tutors, servants and scholars connected with the institution; the tuition, however, not to be wholly free, except to such youth as the acting trustee or trustees shall direct, but no youth to be required to pay the whole cost of his or her tuition. The trustees have, in accordance with the directions of the codicil, applied to the legislature for an act of incorporation, which has been duly passed (P. L. 1870, p. 166); and the buildings have been erected. The action of the trustees, in regard to the school-houses and school-house lot and furniture, does not appear to have been in controvention of their duty in the premises.

So, also, of their action in reference to the establishment of the institution of learning for which provision is made by the codicil. It appears that they have considered themselves at liberty, under the terms of their trust, to admit to the benefits of the institution, except so far as reduction of the price of tuition is concerned, pupils not resident in this state. Their construction of the trust is, that the benefits of the institution, to which pupils resident in this state are exclusively entitled, are the advantages of reduction in the price of tuition. That price has been fixed for such pupils at half the usual rates, but for others full price is charged. That construction is erroneous. The testator provides for the establishment of an institution of learning,' to be managed for the “ benefit, tuition and advancement in learning of the youth residing from time to time hereafter within the state of New Jersey.” The peculiar benefits of the institution are for pupils resident in this state; but the admission of pupils residing elsewhere to participation in the tuition, if such admission be for the benefit of the trust and will not deprive any pupil resident in New Jersey, or any pei’son resident in this state entitled to be and desirous of being a pupil, of any of the advantages secured to him or her by the trust, would not be restrained by this court. The action of the trustees hitherto in admitting pupils not residing in this state to .participation in the tuition, on payment of full rates, is therefore not disapproved.

The testator, by the codicil, directed that his executors should divide Castle Point and the homestead lot and the houses thereon, into four convenient plots, not necessarily to be of equal value, and that his wife should determine which of his sons should have the plot on which the mansion-house stands; and that the' executors should set off the other three plots to his other three sons, one to each ; and that the estate of his sons in their respective plots should be a fee simple.

His son Richard was, as before stated, born after the making of the codicil, and the question is, whether that fact affects the devise in the codicil of the Castle Point and homestead property, which is in favor of the testator’s other sons alone. The question arises out of the statutory provision for children born after the making of a will. Nix. Dig. 1031, Wills, § 21. That section is as follows: “ If a testator having no child or children born at the time of making and publishing' his last will and testament, shall, at his death, leave a child or .children born after the making and publishing of his said last will and testament, or any descendant or descendants of such after-born child or children, the child or children so after-born, or their descendant or descendants, respectively, if neither provided for by settlement, nor disinherited by the said testator, shall succeed to the same portion of the father’s estate as such child or children, or descendants as aforesaid, would have been entitled to if the father had died intestate; towards raising which portion or portions, the devisees and legatees, or their representatives, shall contribute proportionably out of the part devised and bequeathed to them by the same will and testament.”

The testator, in the present case, made provision in the codicil for after-born children. After giving to his son, Albert Bayard, who was born after the making and publishing of the will, a sum of money ($100,000) expressly in order to put him upon an equality with his other children, he says : “ And my will is that every child I shall hereafter have shall also be upon a like equality with my present children, and each of such children that may hereafter be born shall be entitled to a like sum of $100,000 out of my estate; all of which bequests or devises hereinabove made, and those to my wife and children in the foregoing will of the said sum of $100,000, shall take effect before any other gift in said will or hereinafter made.” And again, he gives the residue of his estate to his wife, and his children born and to be born; each of his sons to have two shares, his wife two, and each of his daughters one.

It seems entirely clear that such a case as that which is now under consideration is not within the spirit of the law. It is not within the mischief, and, therefore, is not within the remedy. The legislature surely did not intend to compel a testator to admit an after-born child to an equal share of his property with his other children, under all circumstances, if not provided for by what is technically known as-a settlement; for it permits him, absolutely, to disinherit such child, though the child be not provided for by settlement.

By the English law, as it stood when the act was passed, which was in 1824, no presumption of revocation arose from the birth of a child after the making of the will where such child was provided for by' settlement. Ex parte Earl of Ilchester, 7 Ves. 348. And it was said by Lord Ellenborough, in Kenebel v. Scrafton, 2 East 530, 542, that the rule of revocation from marriage and the birth of issue was allowed to apply only in cases where the wife and children, the new objects of duty, were wholly unprovided for, and where there was an entire disposition of the -whole estate to their ■exclusion and prejudice; that is, where there was a total want of provision for the family so newly circumstanced.

The act of 1842 provides, by its first section, for revocation in the case of marriage and birth of issue after the making of a will by a testator who had no issue living at the time of making the will, unless the after-born issue is provided for or mentioned in the will. By its second section, it provides for revocation pro tanto, to let in after-born children unless they are provided for by settlement or disinherited. The right of the father to disinherit such children is recognized in both sections. And under the second, where, as in the case under consideration, the testator not only mentions but provides for his after-born children in the will, there will be no revocation. If a testator is, under the act, at liberty, as he undoubtedly is, to disinherit his •children born after making his will, he is, of course, at liberty to make an unequal division of his property by will between his children born before making his will and those born afterwards.

The provision contemplated by the second section is not ■only that made by technical settlement, but includes that which is made by the will itself also. Indeed, it seems, from the reading of both sections together, that the intention of the legislature was, in the cases provided for in both sections, merely to guard against the unintentional exclusion by a testator of those for whom it was his duty to provide ; and that the legislature meant to recognize the right of a testator, in each case, to exclude after-born children, either wholly or partially, from participation in his estate, where his intention to do so was apparent, and to declare that, in case the testator had issue living when he made and published his will" and had after-born children not provided for by nor mentioned in the will but provided for by settlemefit, no presumption of revocation should arise. The birth of Richard, after the making and publishing of the codicil, was not, in law, a revocation of the devise of Castle Point and the homestead property, and he is not to be let in to a share in those properties.