Watkins v. Watkins

delivered the opinion of the court.

When sections 4489 and 4490, Annotated Code 1892, are analyzed, it will be seen that these two sections make provision for four distinct classes of cases where a child or children not provided for, or not mentioned in the last will and testament of a “deceased parent, will be provided for by the statute itself. In *154order to place clearly these classes before us, we will arrange them into classes “a,” “b,” “c,” and “d.”

“a.” The first class provides: Where the “last will and testament made when the testator or testatrix had no child living, wherein any child he or she might have is not provided for or not mentioned, if at the time of his or her death he or she have a child.”

“b.” The second class is in a case where, “if the testator leaves his wife enciente of a child, and who shall be born” after the death of the testator.

“c.” The third class is where “the testator shall leave children born, and his wife enciente, the posthumous child or children, if unprovided for by settlement, and neither provided for nor disinherited, but only pretermitted by the last will and testament, shall succeed to the same portion of the father’s estate as such child or children would have been entitled to if the father had died intestate, towards raising which portion the devisees and legatees shall contribute proportionately out of the parts devised and bequeathed to them by the same will and testament.”

“d.” The fourth class provides that “if a testator or testatrix, having a child or children born at the time of making and publishing his or her last will and testament, shall, at his or her death, leave a child or children born after the making and publishing such last will and testament, the child or children so after born, if unprovided for by settlement, and neither provided for nor disinherited, but only pretermitted by the last will and testament, shall succeed to the same portion of the father’s or mother’s estate as such child or children would have been entitled to if the father or mother had died intestate, towards raising which portion the devisees and legatees shall contribute proportionately out of the parts devised and bequeathed to them by the same will and testament in the same manner as is provided in the case of posthumous children.”

*155It will be noted in those parts of sec. 4489 designated here as classes “a” and “b,” and which are found in the first part of said section just preceding the clause in the statute which speaks of posthumous children, that the statute says that the last will and testament “shall hare no effect during the life of any such after-born child;” that is, such child as is born after the making of the will at which time the testator or testatrix had no children, as in class “a,” or after the death of the testator leaving his wife enciente of a child, and in either of the above classes of cases the will “shall be void unless the child die without having been married, or without leaving issue capable of inheriting, and before he or she shall have attained the age of twenty-one years.” Then the statute further provides, in reference to these two classes “a” and “b,” that “the estate both real and personal,” so devised — that is, by will when the testator or testatrix had no children, as class “a,” or when the wife of the testator was enciente of a child at the time of the death of the testator, which was born after the will was made, as in class “b” — “shall descend to such child in the same manner as if the testator or testatrix had died intestate, subject, nevertheless, to the bequests made in the last will and testament, in case of the death of such child before marriage, or without issue capable of inheriting, and under the agé of twenty-one years.” It will be noted that these two classes of cases are subject practically to the same provisions of the statute, and we think have in common with each other the following provisions — that is, they take as though the testator or testatrix died intestate; second, in each case it is expressly provided that the will shall be void unless the child dies without having been married, etc.; third, although the will is made void in each case, yet in case of the death of the child before marriage, or without issue capable of inheriting, and before it shall have attained twenty-one years of age, the will again becomes operative, and the portion the child would have taken under the law becomes subject to its provisions. It will thus be *156seen that in these two clauses of the statute the child or children who take under either clause “a” or “b” have these provisions of the statute affecting them in the same way.

Class “c” applies to a wholly different case. Classes “a” and “b” apply to the cases where there were no children living at the time the will was made, and class “c” applies to the case of a posthumous child, where there are other children born and living’ at the date the will is made. After the statute has made provision for a' child who takes under classes “a” and “b,” it then provides for a -wholly different case, and says: “When a testator shall leave children born and his wife enciente, the posthumous child or children, if unprovided for,” etc., “shall succeed to the same portion of the father’s estate as such child or children would have been entitled to if the father had died intestate, towards raising which portion the devisees and legatees shall contribute proportionately out of the parts devised and bequeathed to them by the same will and testament.” It will be seen that in this part of the statute, here designated as class “c,” the words “posthumous child or children” are used for the first time, and it is the only place in the section where the word “posthumous” is used. It will be further noted that this case differs from classes “a” and “b” in that under this jiart of the statute nothing is said as to making the will void, or as to any way affect the will, except that the legacies and bequests left by it are to be reduced by whatever is necessary to raise the portion of the posthumous child. It does not place any limitation on the estate that the posthumous child takes, and does not provide that in the case of the death of the child before marriage, or without heirs capable of inheriting, and under the age of twenty-one years, that the estate shall become subject to the bequests made in the last will and testament. It will therefore be seen that there are no provisions of the statute applicable to class “c” that have any reference or relation to the provisions made for children taking in classes “a” and “b,” except the solitary thing *157that in all three of the classes each one takes as if the testator or testatrix had died intestate. The estate taken by those in classes “a” and “b,” being a contingent estate, not subject to disposition by them and subject to the possibility in case of their death before marriage, or dying without heirs capable of inheriting, and under the age of twenty-one years, of becoming subject to the bequests made in the last will and testament. But this is not so with those who take under the provision made in class “c.” A child or children taking under class “c” gets an absolute title without any restrictions, and, when any one of that class once becomes vested with his property, his heirs at law take under the statute of descent and distribution, and his estate never becomes in any way subject to the provisions of the will.

The fourth class, which we call class “d,” and under which this case falls, is provided for in sec. 4490, and applies to the case of a child born after the making of a will where there is a child or children born at the time the will is made. This section is as follows:

“If a testator or testatrix, having a child or children born at the time of making and publishing his or her last will and testament, shall, at his or her. death, leave a child or children born after the making and publishing such last will and testament, the child or children so after-born, if unprovided for by settlement, and neither provided for nor disinherited, hut only pretermitted by the last will and testament, shall succeed to the same portion of the father’s or mother’s estate as such child or children would have been entitled to if the father or mother had died intestate, towards raising which portion the devisees and legatees shall contribute proportionately out of the parts devised and bequeathed to them by the same will and testament in the same manner as is provided in the case of posthumous children.”

Class “d” is practically the same as class “c,” and differs from “a” and “b” in the same way that class “c” differs from *158class “a” and “b.” In truth there is no difference under the law between those who take under classes “c” and “d”; the only difference being that class “c” provides for a posthumous child or children, and class “d” provides for a case where tjie child is born after the making of the will and during the life time of the testator ox testatrix, but the kind of estate which each gets and the method of raising same is exactly the same in each state of case, and in neither of these last two' classes mentioned does a taker of property under them take it in such way as that it may ever again become subject to the bequests, made in the will of the testator, but in both cases the taker becomes vested with an absolute title, and upon his or her death it descends to the heirs at law independently of any will which the testator may have made. When the last sentence of sec. 4490 says, in speaking of the way in which the portion of the children provided for therein shall be raised, it shall be done “in the manner provided in the case of posthumous children,” it merely intends to emphasize the way in which the portion of such child shall be raised, and placed no limitation on the title which the child taking under it gets. It refers, and can only refer, to that part of sec. 4489 which provides how the portion of posthumous children shall be raised. There is but one place in sec. 4489 where it speaks of a posthumous child at all; that is, in that part of the statute which we have designated as class, “c.” There is no plan outlined by the statute for “raising a portion” for a child provided in either of those parts of sec. 4489 which we have designated as class" “a” and class “b.”

We unhesitatingly hold that Benjamin D. Watkins, Jr., upon the death of his father, immediately became vested with an absolute title to a one-fourth interest in his father’s estate, and when Benjamin D. Watkins, Jr., died, the property so coming" to him under the statute descended to his sister of the whole blood to the exclusion of the sister of the half blood, and this, though he died “before marriage, without heirs capable of *159inheriting, and under twenty-one years of age,” and though his estate had never been set apart to him, yet by operation of law it belonged to him absolutely, and was in no way subject to the bequests of the will.

Let the decree of the court heloiv he affirmed.