Holloman v. Copeland

*81 By the Court.

Warner, J.

delivering the opinion.

[1.] By the Act of December, 1834, it is declared, that “In all cases where a person having made a will, shall marry, or have born a child or children, and no provision shall be made in said will for the wife, after married, or child or children after born, and shall depart this life without revoking said will, or altering it subsequent to said marriage, or subsequent to the birth of said afterborn child or children, the Justices of the Inferior Court of the County, while sitting as a Court of Ordinary, having jurisdiction of the case, shall pass an order declaring that such person died intestate, and his estate shall be distributed under the laws of this State regulating the distribution of intestates’ estates.” Prince, 254. John G. Perry, on the 2d day of March, 1848, made his will. In the month of May, 1850, after making his will, a child was born. On the 18th November, 1850, John G. Perry departed this life, without revoking or altering his said will, subsequent to the birth of said afterborn child, and the question is, whether according to the provisions of the Statute, he did not die intestate ? It is contended that he did not die intestate, because, by some of the provisions in the will, particularly those mentioned in the seventh, third, and second items thereof, the afterborn child, under the description of “children,” might be entitled to some portion of the testator’s estate, and, therefore, that such afterborn child is provided for by the will of the testator. The testator had other children living at the time of making his will, and those were tire children which he had in his mind at that time ; as more than two years elapsed from the time of making his will, until the birth of the afterborn child, the testator, when he made his will, did not contemplate the existence of this afterborn child ; none of the provisions made therein were intended for her benefit. It is true, that on the happening of some of the contingencies contemplated by the testator, this afterborn child might take some portion of the testator’s estate, under the general description of “ children,” but that is not the provision which the Statute contemplates. The Statute con- *82 templates the present, or probable existence of the afterborn child, in the mind of the testator, when he makes his will, and thereby makes a positive provision for such child. There being no such positive provision made by the testator in his will for this afterborn child, we are of the opinion, that this is a very clear case of intestacy under the Statute.

Let the judgment of the Court below be affirmed.