Edwards's Appeal , 47 Pa. 144 ( 1864 )

The opinion of the court was delivered, by

Woodward, C. J.

The 15th section of our Statute of Wills of 8th of April 1833, Purdon 1018, is in these words: “ 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 dies 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.”

William A. Edwards made his will on the 10th September 1856, devising his estate, real and personal, in trust for the benefit of his friend, Sarah Devitt, and the heirs of her body. On the 11th February 1858, he married Miss Devitt. On the 10th August 1860, he died, leaving his wife enceinte. On the 25th August 1860, a son was born, who is living.

Upon this state of facts it is safe and easy to say that the marriage revoked the will as to Mrs. Edwards. The revocation as to her did not depend on the provision made for her, it resulted .absolutely as a legal consequence of the marriage. The statute annexes the condition of provision to the children, not the widow. As to “child or children not provided for in such will,” it is revoked ; but as to children who arc provided for, it is not revoked by the marriage of the testator and birth of issue. The revocation as to the widow, I repeat, was absolute the instant of the marriage. It did not wait for her election, any more than it depended on the provision made for her. And a will revoked is as if it had never been made. The statute plainly declares this to be the effect of revocation; the testator shall be deemed and construed to die intestate, and his estate, so far as concerns the parties in behalf of whom the revocation occurs, is distributable “ as if he had actually died without any will.”

Partial revocations were recognised under our statute of 1794: Coates v. Hughes, 3 Binn. 498. Under the Act of 1833, the marriage of a female after making her will was held a revocation, in Fransen’s Case, 2 Casey 204; and although Walker v. Hall, 10 Casey 483, was not a case of an ante-nuptial will, it was there laid down as settled law, that “if a man makes his will, and marries, and dies leaving a widow, so far as regards the widow he dies intestate, that is, his will is revoked pro tanto, and the widow has a third or half of the real estate during her life, and a third or half of the personal estate absolutely, according to circumstances.” If this be the law of Edwards’s will — if as to his wife he died intestate and without a will — what signifies the learned discussion we bad as to the estate which the words of the will might have vested in her ? These words were repealed after they were written, and as to the widow, they are as if they had never been written. She took neither an equitable nor a legal estate under the will — neither an estate in fee, in tail, nor for life — she took nothing except what the intestate laws gave her. But if she took nothing, how could the posthumous son take anything under the will ? Whatever estate any construction of the will would give him, would be necessarily secondary to that of the mother, either a succession or a remainder, dependent upon a prior estate in her. The court below held that she took an estate tail, which our Act of 1855 converted into a fee, and therefore that the son was unprovided for and that the will was revoked as to him. The inferences are very fair if the premises be granted ; but it is impossible for us to see how she could take an estate tail at the death of her husband if his will was revoked as to her the instant he manned her. And besides, we strongly incline to the opinion that the words of the will, if they were to have effect, would create a life estate in her, with a contingent remainder to the “heirs of her body,” which, in connection with the prior words, “lawful issue,” -we would construe to mean children living at the time of her death. Then the question would arise whether a contingent remainder was such provision as the fifteenth section of our Statute of Wills contemplates, and we should probably conclude that it was not; for we believe the legislature meant a present vested interest, and not a future and contingent one.

But there can be no contingent remainder without a particular estate to support it; and if the mother took nothing under the will, by reason of the revocation, it would be idle to argue that the words were such as would create a life estate in her. Yet without a life estate in her there could be no contingent remainder ; and if a contingent remainder, it was not the statutory provision. View it as we may, we cannot conjure up á doubt that the posthumous son of the testator is a child u not provided for” in the will within the meaning of the Act of Assembly, and therefore his birth was a revocation of the will as to him. Whether the will was wholly inoperative as to the mother, or whether it gave her an estate tail which the statute transmuted into a fee, or an estate for life with remainder in fee to the son, the above conclusion rests on solid ground, and is decisive of the cause. The will is revoked, both as to mother and son, but not necessarily as to the trustees: Coates v. Hughes, 3 Binn. 498.

We cannot accept the suggestion of counsel that the power of sale granted to the executors was a conversion which would entitle the widow to one-third of the fund absolutely as personal estate. Notwithstanding our Act of 24th February 1834, § 13 (Purdon 282), equitable conversion is still a question of intention, and does not result necessarily from a pov'er of sale given to executors : Chew v. Nicklin, 9 Wright 84. We see no evidence of an intention to work a conversion here, and therefore distribution is to be made as in other cases of intestacy.

The decree is affirmed.