137 A. 17 | Conn. | 1927
The paper in question was executed by David K. Strong March 25th, 1920, as his last will, at which time he had only one child, Helen Shailer Strong, from whose mother he had previously been divorced, and a second wife, Victoria C. Strong, the present appellant, to whom he gave all his property by the second clause of the will. On April 29th, 1922, after the making of this will, a daughter Jean Victoria Strong was born to the testator and his wife Victoria C. Strong. The testator died September 9th, 1924, without making any change in the will and it was admitted to probate April 8th, 1925. *78
The will contains four operative paragraphs, and those material to the present inquiry are:
"(2) I give, devise and bequeath to my wife, Victoria C. Strong, of said Hebron, all the property of which I may die possessed, both real and personal, and wheresoever situated, to be hers absolutely and forever.
"(3) I make no bequest to my daughter Helen Shailer Strong because I have heretofore paid to her mother sufficient sums to enable her to support my said daughter and do not feel in duty bound to make further provision for her nor do I feel that she will need any further assistance from me or my estate."
The present appeal rests upon a single claim, viz., that the Superior Court erred in holding that General Statutes, § 4946, operated as a total revocation of this will. The relevant portions of that statute at the time the will was made were and still are the following: "Sec. 4946. If, after the making of a will, the testator shall marry, or if a child is born to the testator, and no provision is made in the will for such contingency, such marriage or birth shall operate as a revocation of such will." The appellant, Victoria C. Strong, asks this court to hold that the statute should be so construed as to work a revocation pro tanto and only so far as to allow the after-born child to share in the estate under our intestate laws.
In Blake v. Union New Haven Trust Co.,
The established meaning of our statute, then, requires that we find in the will of David K. Strong some provision for the contingency of an after-born child. That there is none, is too clear for argument. We cannot amend the statute to provide that if there be an after-born child with no provision for the contingency, it shall operate as a revocation of such will"pro tanto." The statute says it operates as a revocation of the will. We do not overlook the claim, urgently pressed upon us, that while the conceded purpose of the statute is to secure the after-born child against being passed by through the inadvertence of the testator, the result of holding the will revoked, will — in this case — work to the advantage of the first child and to the disadvantage of the after-born daughter, Jean V. Strong. This, however, if it followed, is not brought about by the statute, but by the circumstances surrounding the testator and by the other provisions which he saw fit to make. The will makes *80 no reference to the contingency of an after-born child and the statute properly presumes that this was an inadvertence.
The argument that the after-born child will benefit by sustaining the will is legally unsound and based upon a gratuitous assumption. The will gave the entire estate to a third person and at the death of the testator left Jean V. Strong, the after-born child, without any legal claim upon his estate. As this third person was her mother, he may have assumed, and probably did, that she would provide for her. If this was his intention, he did not require it, and the will therefore only partially expresses his wishes. We cannot supply the lack by assumption. "A distribution the result of assumption in part and in part of fact, would be offensive both to the law and to the testator."Goodsell's Appeal,
The underlying purpose of this statute clearly is to impose certain requirements upon one who desires to provide for the disposition of his property upon his own death, and such provisions are, as a rule, "not only directory but prohibitory and exhaustive." Irwin'sAppeal,
The underlying contention of the appellant, Victoria C. Strong, appears in the brief of her counsel: *81 "Our statute is equivocal and consequently there is room for construction." If this were so, the arguments made in support of the will might well be advanced, but this court has more than once said that the statute is not ambiguous. It "is too clear in itself to justify a resort to outside aid in establishing its meaning."Blake v. Union New Haven Trust Co., supra, p. 198. "The language of this statute is precise and unambiguous."Whitehill v. Halbing, supra, p. 23.
The claim that the statute should be read as effecting — not a revocation of the will, but only a revocationpro tanto, would be suitable to urge before the legislature, but "it is not our office to legislate. The legislature of the State has, in the statute enacted, declared its will. This declaration is in plain, direct and unambiguous terms. There is no uncertainty about it. Its intent and phraseology are alike clear and unmistakable. Nothing could appear more certainly from a reading of it than that the General Assembly did not choose to limit its operation as suggested . . . and our power over the statute is therefore at an end." Colchester Savings Bank v. Brown,
It results that the failure to provide for the contingency of an after-born child, followed by the birth of the daughter Jean V. Strong, worked a revocation of the will.
There is no error.
In this opinion the other judges concurred.