Denbo, Alexander

English

Penn State Dickinson Law: IDEAS

Volume 36 Issue 2 Dickinson Law Review - Volume 36, 1931-1932 1-1-1932 Necessary Testamentary Provision for After-Born Children Alexander Denbo Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlra Recommended Citation Alexander Denbo, Necessary Testamentary Provision for After-Born Children, 36 DICK. L. REV. 123 (1932). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol36/iss2/11 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact lja10@psu.edu. DICKINSON LAW REVIEWIV. RELATION TO THE PATIENT.Assuming that the holding that the relation of thephysician and nurse is that of master and servant, 5 itdoes not follow that because the doctor or master is per-sonally liable for the negligence of the nurse or servantthat the nurse it not also personally liable. The contraryis the law, and it is a general rule that a servant is per-sonally liable for injuries resulting from his negligence2 6The degree of care and skill required of physicians andsurgeons is not the highest possible, but only that whichis reasonable and ordinary, and in determining the stand-ard of care and skill which the law requires, the state ofscientific knowledge at the time must be considered.2TNurses should be liable to no higher degree of care thanphysicians or surgeons. The same standard of care wouldseem to be applicable relative to the duties of a nurse to-ward the patient, as those of a physician toward thepatient.NICHOLAS UNKOVIC.NECESSARY TESTAMENTARY PROVISION FORAFTER-BORN CHILDRENSection 21 of the Wills Act as amended,1 provides asfollows "When any person, male or female, shall make alast will and testament, and afterward shall marry, or shallhave a child or children, either by birth or by adoption, notprovided for in such will, and shall die leaving a survivingspouse and such child or children, or either a survivingspouse or such child or children, although such child orchildren be born after the death of their father, every such25Supra, note 21.267 Labatt's Master & Servant sec. 2580 et. seq.2TWohlert v. Seibert, 23 Pa. Super. Ct. 213 (1903); Howard v.Grover, 28 Me. 97, 48 Am. Dec. 478 (1848); 29 Yale L. J. 684, 5; Bar-nard v. Schell, 85 Pa. Super. Ct. 329 (1924); 48 C. J. 1113.11921, P. L. 937, Sec. 1.DICKINSON LAW REVIEWperson so far as shall regard the surviving spouse, orchildren born or. adopted after the making of the will,shall be deemed and construed to die intestate; and suchsurviving spouse, child or children shall be entitled to suchpurparts, shares and dividends of the estate,. real andpersonal, of the deceased, as if such testator had actuallydied without any will."There is no doubt under this section that where a tes-tator makes a will, and afterwards has a child or childrennot contemplated, nor provided for by him, in such will,that as to such child or children, the testator will bedeemed to have died intestate. Nor is it doubted that whenan actual provision is made for after-born children by thetestator, that such after-born children will take accordingto the will and not according to the intestate law. Thepertinent question to be discussed herein is, where a testatormakes a will, and, in anticipation of after-born children,provides that such children are to be disinherited, will thecourts in such a case carry out the intention of the testatorand disinherit the children or will the courts disregardsuch intention and permit such children to inherit as if thetestator had died intestate.The case of McIlvain's Estate,2 discusses this specificquestion. In that case one Biddle gave all his estate to hiswife absolutely, providing further, that the devise to thewife would take effect notwithstanding the birth of anychildren born later. He said that it was his intention to dis-inherit all after-born children. Four children survived, twoof whom were born after the execution of the will. Thecourt held that the will failed as far as these two childrenwere concerned. As to them he died intestate.It is true that a will, which, as here, expresses an in-tention to disinherit after-born children certainly is notmaking a provision for them. It does exactly the opposite.It is also true that the statute makes no requirement thatthe child shall be fully or equally provided for therein. Allthat it does require is that the testator shall have the child22 D. & C. 501 (1922).DICKINSON LAW REVIEWin mind and shall make clear his intention that there issome actual provision made for it. But such a construc-tion of the act is clearly contrary to the theory uponwhich such statutes were founded. This theory is that theunborn child was not in the contemplation of the testatorwhen he made his will and that, if it had been, he wouldhave changed its provisions. As is shown by the historicalretrospect of the development of the testamentary powerin England, the basis of the rule as to revocation of willsby the subsequent marriage and birth of children to thetestator is the latter's implied intention as to his disposi-tion of his property under such a change of circumstances.3In other words, if the circumstances of the testator's fam-ily are materially changed after the execution of his will,his will ceases to represent his testamentary intention, andis, therefore, to be considered as revoked pro tanto. Theevil designed to be remedied is the unintentional disherismby the testator of a child who has a natural moral claimto recognition.Irrespective however, of the intention of the testatorand the theory upon which this section was passed, thecourts have invariably decided that the words of thestatute must be strictly construed. By doing so they haveavoided many evils which might otherwise have arisen.The subject can be more clearly discussed by an his-torical survey of this section of the Wills Act. Under thecommon law which we inherited from England, the subse-quent birth of a child did not revoke a will previouslymade, nor, indeed, did the subsequent marriage of thetestator, but the marriage and the birth of the child con-jointly had that effect. These circumstances produced sucha total change in the testator's situation as to lead to apresumption that he could not intend his previous testa-mentary disposition to remain unchanged.This English common law rule was altered, however,3Newlin's Estate, 209 Pa. 456, (1904); Coates v. Hughes, 3 Binn.498, (1878).DICKINSON LAW REVIEWin Pennsylvania, by the Act of Feb. 4, 1748-9,' which pro-vided that when a testator should afterward marry orhave a child or children "not named in any such will", thetestator should, so far as regards such child or children, bedeemed to die intestate, etc. By the Act of March 23,1764,5 there were substituted for the words "not named inany such will", the words, "not provided for in any suchwill", and this Act was substantially re-enacted by theActs of April 10, 1794,8 and April 8, 1833,1 and June 7, 1917,8which continue this language. The earlier Act of 1748-9,therefore, revoked the will where an after-born child wasnot "named in the will", which means, so far as a non-existent child can be named, there must be something toshow that the testator had in mind the possibility of itsbirth. This was changed by the later acts, as has been seen,and our courts have judiciously held that the amount ofsuch provision must be left to the discretion of the tes-tator, otherwise the contests that would arise, if the dis-cretion of the court were substituted for that of the tes-tator, would be interminable.Thus we have seen that the inconveniences resultingfrom the state of the common law, produced this section ofthe Wills Act and that under the common law, marriagealone and birth of children alone were not sufficient tooperate as a revocation of a will previously made and thathowever strongly the courts favored such children, theycould not set aside a solemn will because no provision wasmade for these children. The legislature by the Act of1748 pursued a more equitable system and one better cal-culated to carry into execution what might be supposedreasonably to be the dictates of an honest mind. "So faras shall regard the widow, or child or children after-born,the testator shall be deemed and construed to die intes-tate." So forcibly were the lawmakers struck with the'5 St. at. L. 64, Section 5.53 Sm. Laws 160, Sect. 4.63 Sm. Laws 152, Sect. 23.7Sect. 15, P. L. 251.eSect. 21, P. L. 403.DICKINSON LAW REVIEWpropriety of this provision that they gave it retrospectiveoperation as to all wills made from and after the fourthday of February, 1748.'Our present Act is a positive statutory enactmentwhich can neither be refuted by parol testimony, outsideof the will, nor by any language in the will raising a pre-sumption that he did not intend to provide for such after-born child. It is proper to give this effect to the wellweighed words of our Act concerning a provision for achild, whose interests may be sacrificed to a mere stranger,by giving a forced meaning to this plain and clearlanguage.' 0In Mcllvain's Estate," the intention of the testator wasindeed plain enough, and the after-born children, beingnamed in the will, would have been excluded under the oldlaw prior to the act of 1764, but under the present statute,requiring a provision to be made for an after-born child,the law was held to be otherwise. If the testator express-ly disinherits after-born children, how can he be said tohave provided for them? He says in so many words thathe makes no provision for them.2Many other cases in this jurisdiction show that theintention of the testator is not enough to satisfy thestatute. All hold that there must be some provision madefor the children, however slight, its amount and nature be-ing determined by the testator.A will by a testator, made in anticipation of after-born children, whereby he gave his entire estate to hiswife "having utmost confidence in her integrity and beliefthat should a child be born to us, she will do the utmost torear it in the honor and glory of its parents", was revokedpro tanto because there was no actual provision made forthe child. 8 An estate in remainder or a reversionary in-terest, whether vested or contingent, was held not to be'a9Coates v. Hughes, 3 Binn. 498, (1878).loWalker v. Hall, 34 Pa. 483, (180).112 D. & C. 501 (1922).12Smith's Estate, 14 D. & C 271 (1930).18Walker v. Hall, 34 Pa. 483 (1860).DICKINSON LAW REVIEWprovision for an after-born child within the spirit of thestatute." A will by a testator whereby he gave his entireestate to his wife with a provision, that if he leave anychildren, he appointed his wife guardian, committing theirmaintenance, education and future provision to her, add-ing, "which guardianship I intend and consider to be asuitable and proper provision for such child or children",was held to be clearly no provision for his children such asis contemplated by the Wills Act and the whole policy ofthe law.' 5In Newlin's Estate,18 one Newlin gave his trustees one-third of his estate, to pay the income to his wife duringthe minority of his children, if during the period the wifeshould remain unmarried, with the remainder to his daugh-ter. A child was expected when the will was made. Thecourt held that the Act of 1833 made no requirement thatthe child shall be fully provided for. True it is that Mr.Chief Justice Mitchell says that "all that it (the act) doesrequire is that the testator shall have the child in mindand shall make clear his intention that the will shall applyto it." The context shows that the meaning of the expres-sion, "the will shall apply to it" means making some pro-vision for the child. In that case the real question was asto the sufficiency of the provision and it was held thatthe fact of provision and not the sufficiency thereof wasthe test. The statute makes no requirement as to ade-quacy and gives courts no authority over that subject.In Randall v. Dunlap,"7 this interpretation was reiterat-ed. In that case, the children, if any, took only upon con-dition that the husband failed to survive the wife, and thewill stated in terms that the provision, which in fact andeffect, turned out to be none at all, as the husband did"Edward's Appeal, 47 Pa. 114, (1864); Willard's Est. 68 Pa. 327,(1872).15Hollingsworth's Appeal, 51 Pa. 518, (1867); also see Iron'sEstate, 13 Pa. Dist. 338, (1904).'oNewlin's Estate, 209 Pa. 456 (1904).17218 Pa. 210, (1907).DICKINSON LAW REVIEWsurvive, was intended to cover the case of after-bornchildren.""There appears to be only one case in this jurisdictionwhich has attempted to carry out the intention of thetestator in disinheriting after-born children and thus dis-regarding the absolute provisions of the Statute.19 In thatcase, the testator, anticipating the birth of a child, stated,in a codicil to his will that his wife was the sole heir andthat the birth of a child should in io wise disturb the dis-position of his estate as directed in his will. The Court wasof the opinion that under Walker v. Hall,2" and Hollings-worth's Estate,"' and the other cases referred to, the willmust be held to be revoked, but expressed the opinion thatNewlin's Estate,2 2 marked a new road, and held that the willwas not revoked.It is true that the Court in Newlin's Estate said that allthe statute requires is that the "testator shall have thechild in mind and make clear his intention that the willshall apply to it;" but the court went on to say, what is notquoted in Zug's Estate, that "any provision which does thatis sufficient, and the inquiry whether it be small or large,equal or unequal, vested or contingent, is irrelevant andoutside the jurisdiction of the courts, except so far as ittends to throw light upon the question of intention. 128 Butwhere the will not only makes no provision at all for anafter-born child but even expressly says that the testatordisinherits the child, how can such a will be said to providefor the child in the language of the act of assembly, inwhich there are significantly used the words, "not providedfor", instead of "not named"? Newlin's Estate does not goas far as that and could not without overruling the priorcases of Walker v. Hall and especially Hollingsworth's Ap-peal, in both of which the intention of the testator clearlylSConn's Estate, 25 Pa. Dist. 29, (1916).19Zug's Estate, 57 Pitts L. J. 176.2034 Pa. 483, (1860).2151 Pa. 518, (1867).22209 Pa. 456, (1904).2BRafndall v. Dunlap, 218 Pa. 210, (1922).DICKINSON LAW REVIEWappeared to give his entire estate to his wife, even if a childor children should afterward be born, whose possible birthwas referred to. As previously said, these cases showthat the intention of the testator is not enough to satisfythe statute; there must be some provision made for thechildren, however slight, its amount and nature being de-termined by the testator.2'CONCLUSIONAlthough one of the personal rights of an individual,still safeguarded, is the right to dispose of his property bylast will as his judgment dictates, it is subject to a fewstatutes limiting the absolute control of one's estate. Forillustration, giving to a widow the right to take against herhusband's will and vice versa, and the statute wherein mar-riage or birth of a child is sufficient to effect a pro tantorevocation of the will previously made. The statute beingin derogation of the testator's testamentary right, must beconstrued according to its terms.25As a result of Section 21 of the present Wills Act twothings follow: The after-born child must be provided for,i. e., the mention of the fact that testator has such child inmind is not sufficient; and if any provision is made, itscharacter and amount are of no moment.28Thus an attempt by a testator to absolutely disinheriLafter-born children will be entirely disregarded but if hemakes the slightest provision for such after-born children,this will be deemed sufficient to satisfy the statute.It is clear therefore, that all our rules in such cases arestatutory ones, established by the legislature by which thecommon law rule has either been repealed or altered or en-forced by positive legislative sanction, and therefore is notopen to the doctrine of implied presumption.ALEXANDER DENBO.2 'Mcllvain's Estate, 2 D. & C. 501, (1922).25Alburger's Estate, No. 1, 274 Pa. 10, (1922).26Conn's Estate, 25 Pa. Dist. 29, (1916).

Necessary Testamentary Provision for After-Born Children

bepress Legal Repository

https://ideas.dickinsonlaw.psu.edu/cgi/viewcontent.cgi?article=1308&amp;context=dlra

Necessary Testamentary Provision for After-Born Children

Abstract

Similar works

Full text

Available Versions

Penn State Dickinson Law: IDEAS

bepress Legal Repository