Hollingsworth's Appeal

The opinion of the court was delivered, by Read, J. -This case is ruled by Walker v. Hall, 10 Casey 483, and it is unnecessary to repeat the reasons for the opinion there expressed. William W. Hollingsworth, by his will, gave all his estate real and'personal to his wife Caroline, the appellant, and then followed ■ ‘the clause : “ Item. — In case I shall leave any child or children living at the time of my decease, I do hereby constitute and appoint my said' wife, Caroline N. Hollingsworth, to be the guardian of such child or children during their minority, committing entirely and fully to her affection, judgment and discretion, their maintenance, education and future provision, and which, guardianship I* intend and consider as a suitable and proper provision for such child or childrenand he appointed his wife his executrix. The testator left, living at his decease, two after-born children by his wife, one of them being born nine days after making his will. [521] This is clearly no provision for his children, such as is contemplated by our Wills Act, and the whole policy of the law. The testator, therefore, so far as regarded his two after-born children, died intestate, and they became “ entitled to such purparts, shares and dividends of the estate real and personal of the deceased, as if he had actually died without any will.” This gives the children two-thirds of the personalty absolutely, and the real estate in fee simple, subject to the life estate of their mother in one-third of it. But the rest of the will is not revoked. The widow is the executrix, and I see no reason on the principle of a revocation, fro tanto, why she should not be the testamentary guardian of the children. By the statute o'f 12 Charles 2, ch. 24 (1660), the father is empowered by deed or will to dispose of the custody of his children. The 8th and 9th sections of this statute are extended to this state, being reported by the judges to be in force here. The authorities upon the' construction of this statute are to be found in Roberts’ Digest, p. 312, and in the 2d volume, p. 829, of Ohitty’s collection of all the statutes of practical utility, by Welshy and Beavan, 3d edition, under the title “ Infants.” In the leading case, Ex parte the Earl of Ilchester, 7 Ves. J. 348, decided by Lord Eldon, assisted by Sir William Grant, Master of the Rolls, and Lord Alvanley, Lord Chief Justice of the Court of Common Pleas, it was held that a testator married, but not then having children, having given the guardianship of all his children, born and to be born, such guardianship extended to all the children by that or a future marriage. As this will merely appoints the mother the'guardian of her children, there is nothing incompatible with that provision of the Wills Act which secures to the children their share of the real and personal estate of their father, and therefore this portion of the will is not revoked, and the mother remains the guardian of her children. Decree affirmed, so far as trustee is called on to transfer to petitioner in her own right, and the record is remitted for the Orphans’ Court to proceed in conformity to the above decision. Strong, J., was absent at Nisi Prius.