Verrinder v. Winter

WiNslow, J. The will, though hastily and inartifi daily drawn, is easily understood, and we think its construction is in no way uncertain. The testator was upon his deathbed, stricken with an acute disease. He was entirely conscious, and knew that his death was at hand. He had no [290] living children, and knew that his wife was pregnant by him. The will was evidently intended to give his wife two thirds of his entire estate if she remained his widow; but, if she remarried, she was to retain but one of these thirds, and the other was to go to her unborn child. The remaining third was to go to his brother, David Winter. We think there is no reasonable doubt but that the words “her heir,” in the will, referred to the unborn child, as certainly as though the words “her unborn child” had been used, instead of “ her heir.” In fact, it was admitted by the respondent upon the argument of the case that the testator evidently referred to the unborn child when he used the words in the will. This fact being determined, the questions in the case are simply as to the effect of the provisions of sec. 22S6, R. S. 1878. This section provides, in substance, that where a testator dies, leaving an unborn child, afterwards born alive, such child shall abide by the will, in case (1) the will makes provision for it, or (2) in case the will shows that the testator intended to make no provision for it, but that in default of either of these contingencies the child shall inherit as though the aucestor had died intestate. If, therefore, in the present case, the will makes provision for the unborn child, within the meaning of the' statute, or shows the intention of the testator not to make such provision, then in either event the will must control. We agree with the conclusion of the circuit judge that the remainder limited to the unborn child is a contingent remainder, dependent upon the possible subsequent marriage of the plaintiff. Whether a contingent remainder of this kind constitutes a “ provision ” for the child, within the meaning of the section quoted, is a question which we do not find it necessary to decide. The decisions in other jurisdictions upon somewhat similar statutes have been at variance upon, the point. That it is not a “provision” is substan [291] tially held in Rhodes v. Weldy, 46 Ohio St. 234, where the cases supporting that view are cited. That it is a “provision” is held in Osborn v. Jefferson Nat. Bank, 116 Ill. 130. But, as before stated, we do not find it necessary to decide the point in- this case, because, as we view the case, the result in either event is the same. It is clear that the testator referred to the child in his will, and gave it a contingent remainder in one third of his estate. It also seems clear that he intended to give the child just what the terms of the will give it. Now, if such a contingent remainder be a “ provision ” for the child, within the meaning of the statute, then the first contingency above named has happened, and the will must prevail; and if, on the other hand, such a remainder is not a “provision,” then (the testator having intended to do just what the will declares) the will shows the intention of the testator not to make a “ provision ” for the child, within the meaning of the statute, and the will must likewise prevail. The word “provision” must have the same construction when it is used in two parts of the same section, and, giving it that construction, we see no logical escape from the conclusion' above stated. The widow, therefore, is entitled to one third of the real estate, the heir of "Washington G-. Winter, Jr., to one third, and the heirs of David Winter to one third. By the Oov/rt.— Judgment reversed, and action remanded with directions to_ enter judgment of partition in accordance with this opinion.