Luce v. Harris

Mr. Justice Paxson delivered the opinion of the court, January 6th 1876. That portion of the will of Jacob Harris under which the contention in this case arises, is-in the following words : “ I give and bequeath unto my son, Jacob Harris, and Eliza, his wife, the tract of land on which they now reside, during their natural lifetime, it containing one hundred acres, more or less ; and further, I give unto my son Jacob and wife, one-third of the farm on which I now reside, which they shall come into possession of at my death ; and further, I order that my son Jacob and his wife shall not sell or dispose of their life-interest in the foregoing devises to any person or persons; and further, that the land given to Jacob and wife shall be equally divided among their children at their death. It [435] is my wish the farm be owned by the boy, he paying his sisters proper legacies when he and they shall become of age.” Jacob Harris, Jr., the devisee above named, died in July 1857, leaving surviving him a widow and seven children, two girls by a former marriage, and four girls and one son by his second wife, Eliza. The single question raised by the record is, whether the children of Jacob Harris, the devisee, by his first wife, are entitled to take under the said devise. If not, then they are disinherited, for there is.no other provision for them under the will. It is a maxim, which applies here as well as in England, that an heir at law can only be disinherited by express devise or necessary implication, and that implication has been defined to be such a strong probability, that an intention to the contrary cannot be supposed: Bender v. Dietrick, 7 W. & S. 284. There is nothing on the face of this will to indicate any intention on the part of the testator to disinherit the children of his son Jacob by his first wife; nor is there anything to show that said children were not proper objects of the testator’s bounty. He appears to have made provision for all of his other children and grandchildren as well as for his wife. Sixteen years before the testator made his will, his son Jacob’s first wife died, leaving two daughters, then young children. Shortly after his son married a second wife, and had by her four daughters and one son. The second wife took the children of her husband by his first wife and brought them up as her own. It is probable the testator, when he executed his will, had lost sight of the fact that the two children by the first marriage were not children of the body of Eliza. They were nevertheless of his own blood and of the blood of his son. They were children of Jacob and Eliza in the ordinary meaning of the term. They were known and reputed as such. It has been held in England, that natural children, having acquired the reputation of being the children of a particular person prior-to the date of the will, are capable of taking under the description of “children Wilkinson v. Adams, 1 Ves. & B. 422. When the testator provides that “the land given to Jacob and wife shall be equally divided among their children at their death,” he evidently intended to include the children of Jacob by his first wife, who were also the step-children of his second wife. In order to confine the generality of the words “ their children,” to those born of the second marriage and thus disinherit those born of the first marriage, such intention must clearly appear from the face of the will. It must be manifest by its express terms, or by necessary implication. Neither exists in this case. That he intended to provide for the children of the first marriage further appears from the provision in thé will, that “ it is my wish that the farm be owned by the boy, he paying his sisters proper legacies when he and them shall become of age.” The settled rule is, that a gift to [436] brothers or sisters includes the brothers or sisters of half-blood; Hawkins on Wills 86. There is nothing in the language of this clause to exclude the half-sisters, who were the children of the first marriage. In the absence of the contrary intention appearing upon the face of the will, we think the devise to Jacob and wife and “ their children,” includes children who were of the blood of Jacob, and who were step-children of his wife. Judgment reversed, and a venire facias de novo awarded.