
    PROVISION BY TESTATOR FOR UNBORN CHILDREN.
    Common Pleas Court of Greene County.
    M. C. McMillan v. S. J. McMillan et al.
    
    Decided, 1912.
    
      Wills — Provisions for After-Born Children — Where Residuary or Conditional — Construction of Section 10561 — Words and Phrases.
    
    Where a testator had no children at the time of executing his will and has made clear his intention that his will shall apply to unhorn children, it is not for the court to inquire whether such provision was large or small, equal or unequal, vested or contingent, present or future. Rhodes v. Weldy, 46 Ohio State, 234, not followed.
    
      W. L. Miller, for plaintiff.
    
      Marcus Shoup, contra.
    
      
       Affirmed by the Circuit Court without opinion, April 23, 1912.
    
   Kyle, J.

The plaintiff brings this action to have his title to 109 acres of land quieted as against the defendants and in his petition avers that he is the only son of Hugh McMillan, who died in February, 1894, leaving the defendant, S. J. McMillan, his wife, and the defendant; John McMillan, one of the beneficiaries named in his will.

The will of Hugh McMillan is set out in full, and the plaintiff claims by the terms of said will he is entitled to have his title to said lands quieted as against each of said defendants.

The defendant, S. J. McMillan, demurs to the petition, and the determination of the questions raised upon the demurrer involve the construction of the will of Hugh McMillan.

The part of the will determinative of the rights of the parties is the following:

“At the death of my said wife in ease she should have no children or child by me living, then and in that case if said farm was not sold by my said wife they shall each inherit said farm equally, share and share alike, and in ease that my said wife shall not have any children living and she be the owner of said farm and homestead.” * * *

It is apparent that the word “no” in the clause above given should be disregarded in order to give the will any meaning and carry out the intent of the testator and the will will be considered as if such word “no” were omitted.

The question presented, which was argued very fully, is whether or not the provision made by the testator for his children born after the execution of his will, which is residuary or conditional, is such provision contemplated under Section 10561? In this case the testator having no children at the time of the execution of his will, the construction of this will depends upon the effect given of the law laid down in Rhodes v. Weldy, 46 O. S., page 234, where the Supreme Court construed Section 5959, Revised Statutes, now General Code, 10561. In that case the testator devised his real estate to his wife for life ‘ ‘ ánd after her death to the heirs of her body begotten,” and the court held that a child born to him after thfe execution of the will is not-“provided for in the will in the sense of Section 5969.”

On page 237 the court says:

“It -will not be contended that this is a specific provision for the plaintiff. If it is a provision at all it is so because the language is comprehensive enough to include her. It was evidently written with a view -only to the maternity ‘of the heirs, of her body begotten’ and without reference to their paternity. * * * The question is: Has Elizabeth ‘been provided for in the will’ in the sense of the statute? It is not conclusive' of this question to say that a ‘disposition’ has been'made which may inure to her benefit. ‘Disposition’ and ‘provision’ are not necessarily convertible terms.”

In the 63d Maine, page 156, it was held that “a child of the testator born after his death can not in any proper sense of the term be deemed ‘provided for in his will’ by a general devise of reversion to the heirs of the testator.”

In the 68th Pennsylvania State, Willard’s Estate, it was held that where the testator gave to his wife his property during her life and at her death was to revert to the testator’s children and heirs, was not a provision for the after-born children within the meaning of the statute, which provided that unless such after-born children were provided for the will would be deemed revoked as to them.

In all these eases and others where the after-born child was incidentally included in a class such interest is not such a contemplation by the testator of any unborn child as to come within the meaning of the statutes "unless said child is provided for.” There must, be in the mind of the testator a specific designation of his purposes and desire with respect to such unborn child as to show that their consideration was clearly in his mind with respect to his property, and on that ground the case of Rhodes v. Weldy could have rested without any other reason, but in that case Judge Owen in his opinion goes on further and states that a reversionary or contingent interest for an unborn child is not a provision within the meaning of Section 5969, that such interest must be a present vested interest.

In support of this the court says, "The case of Willard’s Estate, 68 Pennsylvania State, is, we think, directly in point.” In that case the court held:

"That a reversionary interest, whether vested or contingent, is not a provision for an after-born child within the words or spirit of the statute."

To the same effect the prior cases of Hollingsworth Appeal, 51 Pennsylvania State, 518; Lamplugh v. Lamplugh, 1st Peer Williams, 111, which were also quoted by Judge Owen in the 46th Ohio State.

All these cases in Pennsylvania are overruled in the 209 Pennsylvania State, Newland’s Estate, page 456, where the court holds:

"Syllabus. The act of April 8, 1833, Section 15, P. L., 249, relating to the revocation of a will by the subsequent birth of a child makes no requirement that the child shall be fully or adequately provided for; that is left to the discretion of the parent as in the ease of living children. All that it does require is that he shall have the child in mind and shall make clear his intention that the will shall apply to it. Any provision which does this is sufficient and the inquiry whether large or small, equal or unequal, vested or contingent, present or future, is irrelevant and outside the jurisdiction of the courts except so far as it tends to throw light on the question of intention.”

In the opinion the court criticises the 68th Pennsylvania State, p. 463:

“It is true that Judge Sharwood fortifies his position by an argument that if the child take as heir with the other children that he takes only a reversion, which in Edwards Appeal Judge Woodward had gone out of his way to say would not be a present provision within the statute. But that this argument is only a make weight appears clearly from what is said by Judge Sharwood in the same opinion.”

To the same effect is the case of Randall v. Dunlap, Appellant, 218 Pennsylvania State, page 210., The case of Bowen v. Hoxey, 137 Massachusetts, is also relied upon by Judge Owen in the 46th Ohio State. In that case the share which would come to the after-born child came to her only as one of a class, the provision for her was unintentional and the most that could be said that the provision for the class happened to be broad enough to include her. That would support the first ground upon which the 46th Ohio State is based.

In William Minot, Executor, 164 Massachusetts, page 38, the court held that a reversionary interest after the death of the wife to his heirs at law by blood was a provision for an unborn child and distinguishes it from Bowen v. Hoxey, and held that a reversionary interest was sufficient to fulfill the requirements of the statute and overruled the case of Bowen v. Hoxey to that extent, if it was quoted in the 46th Ohio State for that purpose.

The 10th Georgia, page 79 is also quoted by Judge Owen. The Georgia statute required that there must be a positive provision made for an unborn child. In the 115 Georgia, page 857, it was held that a bequest to the wife “and that she shall take every care of our children and do what is just and right by each of them” is not a provision made in contemplation of such event “of after-born children.”

It appears to me that every case referred to upon'which Judge Owen may have based his reasoning that a reversionary or conditional interest is not such provision as is contemplated by the statute for an unborn child has been overruled.

In Osborn v. Bank, 116 Illinois, where the statute provides that an after-born child for whom no provision has been made by will, will take by law that any bequest no matter how insignificant it may be or upon what contingency, however remote, is sufficient to comply with the statute within the meaning of a provision made by will.

So also in the Donges Estate, 103 Wisconsin, 497, where most of the eases referred to in the 46th.Ohio State and including the 46th Ohio State were reviewed, the court held that a reversionary interest constitutes a provision for an unborn child within the meaning of their statute.

The case of Insurance Company v. Lushey, 66 O. S., 233, has been cited by the plaintiff. In that case the testator had a child living, after disposing of his property further provided:

“Should any child or children, we now having only one, George Garfield, be born to me thereafter it shall in nowise alter or revoke this will and testament.”

The court held that that provision did not preclude the unborn child from taking under Section 5961. That section provides what interest an unborn child may have as against the will of a testator who had a child or children living at the time he made his will. Section 5959, Revised Statutes, applies to a case where the testator has no children at the time of the execution of his will, and there are afterwards children born. These sections are independent of each other, and the 66 O. S. does not attempt to give any construction to Section 5959.

When this case was before the circuit court reported in the 20 O. C., 198, the court in referring to the 46 O. S., after quoting the 68 Ohio State, 327, and the 51 Ohio State, 518, and the 63 Maine, 156, said:

"These cases are cited with approval in the case of Rhodes v. Weldy, 46 O. S., 234, where the construction of Section 5959, Revised Statutes, was involved, and seem to require that the provision for an after-born child should be not only substantial but for his direct and immediate benefit.”

Section 5959, Revised Statutes, provided:

“If the testator had no children at the time of executing his will, but shall afterward have a child living, or born alive after his death, such, will shall be deemed revoked unless provisions shall have been made for such child by some settlement, or unless such child shall have been provided for in the will, or in such way mentioned therein as to show an intention not to make'such provision, and no other evidence to rebut presumption of revocation shall be received.”

The codifiers in the General Code changed the language so that Section 10561 provides:

“If the testator had no children at the time of executing his will, but afterward has a child living or born alive after his death, such will shall be revoked unless provision has been made for such child by some settlement, or he is provided for in a will, or in such way mentioned therein as to show an intention not to make such provision. No other evidence to rebut the presumption of revocation shall be received.”

The phrase “or he is provided for in the will” is almost exactly like the Pennsylvania Statute which is “or have a child or children not provided for in such will.”

In the 46th Ohio State on page 242 the court construed the clause “provisions by some settlement” to mean at least a substantial present means of maintaining the child, and they say:

“When we have ascertained what a provision for a child of tender years by some settlement is we shall have made good progress in- the solution of the question at bar. It would' not be a sound proposition to say that the same word occurring in different places in the same statute always means the same thing. It may sometimes call for a, radically different construction, but where the same word or phrase is used more than once in the same act, especially in the same section and in the same sentence in relation to the same subject-matter, and looking to the same general purpose it is a fundamental rule of statutory construction that if in one connection the meaning is clear and the other it is otherwise doubtful or obscure it is in the latter case to be construed the same as in the- former,.”

On page 234 the court further says:

“The general subject treated in these two expressions is the same, to-wit, a provision for an after-born child which shall save a will from the revocation which must otherwise result from the birth of such child after the execution of the will giving to the word ‘provision’ in the one phrase substantially the same construction which the word ‘provisions’ is clearly entitled to in the other, and the conclusion is that Elizabeth was not ‘provided for in the will by the devise of the testator’s land to his wife to use and occupy as to her may seem proper during her natural life, and after her death to the heirs of her body begotten.’ ”

That conclusion is decisive of the case at bar, unless the change made by the codifiers permits a different construction, or unless this court should not agree with the reasoning of the court in that particular. The change in the statute is in the two phrases from “or unless such child have been provided for in thé will” to “or he is provided for in the will.”

The Supreme Court seem to have based their construction upon the above phrase upon their construction of the previous one in respect to a settlement, holding -that a settlement must be immediate, therefore the provision in the will must be immediate.

, I am free to say without the stare decisis I would have had no difficulty in concluding that by the terms of this section the provision for a settlement might be construed to be immediate provision, while the provisions in the will might be immediate, contingent or reversionary, or the such after-born child might be debarred by a proper declaration of intention. If. you hold that the provision in the will must be a present one to carry out the same line of reasoning the court should pass on its adequacy. If a testator of large estate should will each of his after-born children one dollar and no more as a present bequest, how could the claim be made that there was any provision for such children ? The reasoning in the 68th Pennsylvania, and quoted with approval in the 46th Ohio State, that such after-born children in case of a statutory bequest might be left dependent upon their mother is rather a weak argument to my mind. If any testator could not leave his after-born children of tender years in the care of their mother, then to whose care could he commit them ? From my experience and observation they would not be likely to suffer nearly as much were the mother to have a free hand to use the estate for their maintenance as they might be if it were tied up in the hands of some trustee and possibly a large part of the income used to maintain the trust. I do not think that the statute contemplates any such view as taken- by the Supreme Court in the 46th Ohio State. I think the interpretation that the bequest of a residuary or contingent interest is not a provision for an unborn child clearly designated within the meaning of the statute is not justified by the language of the code, and the authorities quoted above. Every authority relied upon in this 46th Ohio State upon this phase of the case having been overruled, and the -reasoning of the court not commending itself to this court — although this court may be reversed — it seems to me- that the full meaning of that section can only be given when you leave the character of the provision for unborn children under Section 10561 to be left wholly to the intention and declaration of the testator.; and, therefore, .-in my judgment when a testator has made clear his intention that his will shall apply to unborn children, it is not for the court to inquire whether such provision was large or small, equal or unequal, vested or contingent, present or future, and the demurrer in this case will be sustained.  