Appeal of McCulloch

Mr. Justice Sterkett delivered the opinion of the Court, The single question, presented by the specifications of error in this case, is whether Jennie P. Fetzer, appellee’s ward should be considered an after-born child of the testator within the meaning of the Act of April 8th, 1833, sect. 15, which provides : “ When any person shall make his last will and testament, and afterwards shall marry or have a child or children not provided for in such will, and die leaving a widow and child, or either a widow, or child or children, although such child or children be born after the death of their father, every such person, so far as shall regard the widow, or child or children after-born, shall be deemed and construed to die intestate ; and, such widow, child or children, shall be 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:” Purd. 1477, pi. 18. The facts, definitively settled by the Auditor’s report and verdict of the jury, are, that Jennie P. Fetzer, born in April 1883, was the natural child of George Fetzer and Mary A. Stetler, who were afterwards lawfully married in August of same year. Two days before their marriage George Fetzer made his will, in which he bequeathed to Miss Stetler, mother of the child, $1000 “for her kind treatment of” him, and gave the residue of his estate, real and personal to his son, grandchildren and sister, without making any provision for the child born, as aforesaid, out of lawful wedlock. Before the Auditor, charged with distribution of testator’s [255] estate, it was contended that under the Act above quoted, in connection with the Act of May 14th, 1857, the child in question must be regarded as an “after-born ” child and therefore entitled to a child’s share of testator’s real and personal estate. This contention was not sustained by the learned Auditor, but the Orphans’ Court being of a different opinion entered a decree in her favor. From that decree this appeal was taken by those claiming under the will, and thus' arises the question above stated. The learned Auditor, as we think, rightly held that the Act of 1833, in providing for after-born children, means a physical birth, and not a mere legislative legitimation, after making the will; that it was intended to provide for children, actually born after the execution of a will, and of whose existence their father is supposed to be ignorant at the time of making his will, and notforthose previously born and then in full life. This certainly accords with the plain, unambiguous wording of the Act, and we have no doubt as to its correctness. Nor do we think the Act of 1833, above quoted, has been, in this respect, qualified by the subsequent Act of 1857, which provides: “In any and every case where the father and mother of an illegitimate child or children shall enter into the bonds of lawful wedlock and cohabit, such child or children shall thereby become legitimated and enjoy all the rights and privileges as if they had been born during the wedlock of their parents.” Upon no reasonable construction of this Act can it be held that appellee’s ward was born after testator’s will was executed. The conceded fact is, she was born four months before, and therefore in no proper sense of the term can she be regarded as an after-born child within the provision of the Act. The reasoning of the learned Auditor is so satisfactory and conclusive of the correctness of his position that it is deemed unnecessary to discuss the subject. We think the learned Court erred in not’decreeing distribution of the fund in accordance with the first schedule of distribution reported by the Auditor. Decree reversed at the costs of appellee, and it is now adjudged and decreed that the net balance, remaining after appropriations made to payment of debts and expenses of Audit, viz : $5457,19, be distributed as follows, viz: To Mary A. Fetzer, widow, $1817,06; to Joseph McCulloch, Guardian of Ellen Fetzer, minor &c., $1730,53 ; to Joseph McCulloch, Guardian of Gertie Fetzer, minor &c., $1730,53; to Louisa Wollaver, $173.07.