
    ROBERT FREEMAN, executor, plaintiff in error, v. WILLIAM J. LAYTON and WIFE, caveators, defendants in error.
    (Atlanta,
    June Term, 1870.)
    WILL —SETTING ASIDE— BIRTH OF CHILD SUBSEQUENT TO EXECUTION—INSTRUCTION.—The will in this case shows upon its face that the testator made it in contemplation of the birth of a child or children to him, subsequent to its execution, and the Court erred in instructing the jury to find a verdict setting it aside, because such provision was not made.
    Wills. Practice. Before Judge Harrell. Early Superior Court. April Term, 1870.
    In 1864, James Freeman made his last will. So much of it as is useful here, is in the opinion. At that time he had no child living. Pie died in January,' 1867, and in October, 1867, his wife was delivered of a child. Subsequently, his executor propounded said will for probate, and it *was caveated by his wife, upon the ground that the will did not make provision in contemplation of the birth of a child, and was therefore revoked by the birth of said child in 1867. She married Layton and he was made a party with her.
    On the trial it was shown by the scrivener that he and testator intended to make provision for any posthumous child, and both believed that said will did so. The Court charged the jury, that if the evidence showed, that a child was born to testator' after making the will, the will could not be set up unless the evidence showed that a provision was made in said will in contemplation of the birth of such child, and that that fact could only be shown by the will itself; that whether it did or did not contain such a provision, was a question for the Court, and that he charged them that it did not.
    The jury found against the will. The executor moved for a new trial, upon the ground that said charge was erroneous. The refusal of a new trial is assigned as error. Upon the reading of the record, this Court would not hear from plaintiff in error.
    Richard Simms and A. Hood, for plaintiff in error.
    No appearance for defendant.
    
      
      WILLS—BIRTH OF CHILD SUBSEQUENT TO EXECU-' TION—REVOCATION.—In Sutton v. Hancock, 115 Ga. 857, 42 S. E. Rep. 214, where it was held that the subsequent birth of a child revoked the will, there being therein no provision “made in contemplation of such event,” the court said: “This case is wholly different from that of Freeman v. Layton, 41 Ga. 58, where a testator, who had no children, provided in his will that if he. should die leaving a child or children, his property was to be equally divided between them if there was more than one, or given to one if there was only one. In that case it was held that the will was not revoked.”
    
   By the Court—

BROWN, C. J.,

delivering the opinion.

The third item of James Freeman’s will is in these words: "My will is, that, if I should die leaving a child or children, all the property which I possess at the time of my death, be equally divided between my children, or given to one, if no more than one.

"Item 4. In the event I die leaving no child or children, then, in that event, I give and bequeath to my brother, Robert Freeman, of Early county, all of my real estate.

"Item 5. In the event I die leaving no child or children, I give and bequeath to my beloved wife,” etc.

These items of this will, taken in connection with the evidence, that the testator had no child at the time he made *the will, leave no doubt on our minds, that in making his will, the testator acted in contemplation of the birth of a child or children to him, during his lifetime, and that it was his intention to make special provision for such child or children. The fact that the only surviving child- was not born at the time of testator’s death, makes no difference. It was born within the ordinary period of gestation, after the death of its father, and its rights are precisely the same as they would have been had it been born before his death.

We think the Court below erred in instructing the jury to find a verdict against the will, on the ground that the testator did not contemplate the birth of a child after he made the will, and did not provide for such child by his will.

Judgment reversed.  