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8 629. Agreements Between Husband and Wife as Limitations

on Testamentary Power. A valid agreement between a husband and wife, whether entered into before or after their marriage, may either extend or limit the testamentary power of either. Thus if one has waived all rights in the property of the other, 1 acquired by reason of the marital relationship, the other may make a testamentary disposition of his or her property as if unmarried. If, however, the property of one is encumbered with a trust or is to be disposed of in a particular manner according to the terms of a valid agreement, a limitation is thereby placed upon the power of testamentary disposition. This limitation, however, does not preclude the making of a will53 any more than an agreement not to revoke a will can prevent its revocation.54 However, equity steps in to enforce the agreement by charging the property with a trust.56 The right to specific performance is the same as in cases of contracts generally, 66 and, where not allowed, an action for damages for breach of contract will be sustained.67 The right to enforce the contract extends not only to the parties and their representatives, but to all those within the marriage consideration.68 In fact, although collateral heirs

53 Rice v. Rice, 63 Mich. 432, Children born to the contract19 N. W. 132.

ing parties prior to marriage, but 54 See $8 80-84.

thereafter legitimatized by mar55 See $ $ 146-149.

riage, are within the marriage $$ 147, 148, 153, 154. consideration. Herring v. Wick. Bright v. Chapman, 105 Me. 62, ham, 29 Gratt. (Va.) 628, 26 Am, 72 Atl. 750.

Rep. 405. 57 Peck v. Vandemark, 99 N. Y. Children by a former marriage 29, 1 N. E. 41.

are held included within the mar. 58 Trevor v. Trevor, 1 P. Wms. riage consideration.-Gale v. Gale, 622; Vason v. Bell, 53 Ga. 416; 6 Ch. Div. 144; Michael v. Morey, Beardsley v. Hotchkiss, 30 Hun 26 Md. 239, 90 Am. Dec. 106. (N. Y.) 605.


56 See

are generally considered as volunteers and unable to enforce the contract, yet if from the circumstances under which the marriage articles were entered into by the parties, or as collected from the face of the instrument itself, it appears to have been intended that the collateral relatives, in a given event, should take the estate, and a proper limitation to that effect is contained in them, a court will enforce the trust for their benefit.59


8 630. Rights of Pretermitted Children Generally.

In many of the states of the Union there are statutory provisions, the general purport of which is that if the testator omits to provide in his will for any of his children or the issue of a deceased child, or fails to mention them so as to show an intention not to provide for them, they are entitled to take the same estate which they would have received had there been no will.60 This does not include an estate over which the parent had only the power of appointment, it not being subject to the rights of the children.61

The statutes vary, in some jurisdictions not extending to children who have been provided for by the testator during his lifetime, nor to those who have had an equal portion of the estate by way of advancements. As to evidence admissible to prove an intention to omit a child, the decisions are in conflict. The statutes, in all cases, should be consulted.

59 Neves v. Scott, 9 How. (50 U. S.) 196, 210, 13 L. Ed. 102; MCNutt v. McNutt, 116 Ind. 545, 558, 2 L. R. A. 372, 19 N. E. 115; Lor. ing y. Eliot, 16 Gray (Mass.) 568, 573; Cole V. American Baptist Home Mission, 64 N. H. 445, 451, 14 Atl. 73.

60 Crossett-Lumber Co. v. Files, 104 Ark. 600, 149 S. W. 908; Wat. kins v. Watkins, 88 Miss. 148, 40 So. 1001; Yung v. Blake, 163 App. Div. 501, 148 N. Y. Supp. 557.

61 Sewall v. Wilmer, 132 Mass. 131.

8 631. After-Born and Posthumous Children Defined.

The term “after-born” children refers to those born after the execution of the will of a parent;'posthumous" children comprise those born alive after the father's death.62 Generally, under the American statutes for purposes of descent and distribution, posthumous children are considered as living at the death of the father, from which it follows that a child born after his death takes like any child born after the making of the will of a parent. They must, however, be capable of inheriting at the moment of birth.63 The birth must also occur within such time as a child might naturally be born after the demise of the father.84 In some jurisdictions the period is limited by statute to within ten months. 66

8 632. Rights of After-Born and Posthumous Children

The rule as to the rights of children unprovided for and unmentioned in the will of a parent taking such portion of the estate as if the parent had died intestate, is substantially the same under the state statutes whether

62 Bishop's Heirs v. Hampton, 877; Pearson v. Carlton, 18 S. C. 11 Ala. 254; Morrow v. Scott, 7

47. Ga. 535; Marsellis V. Thalhimer, The birth of a posthumous child 2 Paige (N. Y.) 35, 21 Am. Dec. 66. does not destroy a devise in trust

63 Stimson's Am. St. Law, to the executor with power of $$ 1412 n, a, 1413, 2621, 2844, 3023, sale.-Van Wickle v. Van Wickle, 3135, 3136. See, also, Knotts v. 59 N. J. Eq. 317, 44 Atl. 877. Stearns, 91 U. S. 638, 23 L. Ed. 64 Harper V. Archer, 4 Smedes 252; Bishop's Heirs v. Hampton, & M. (Miss.) 99, 43 Am. Dec. 472; 11 Ala. 254; Morrow v. Scott, 7 Marsellis V. Thalhimer, 2 Paige Ga. 535; Catholic Mut. Ben. Asso- (N. Y.) 35, 21 Am. Dec, 66. ciation V. Firnane, 50 Mich. 82, 65 Massie V. Hiatt's Admr., 82 14 N. W. 707; Harper V. Archer, Ky. 314; Rutherford v. Green, 37 4 Smedes & M. (Miss.) 99, 43 Am. N. C. 121; Melton v. Davidson, 86 Dec. 472; Van Wickle Van Tenn. 129, 5 S. W. 530. Wickle, 59 N. J. Eq. 317, 44 Atl.

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such children were in existence at the time the will was executed, or born thereafter in the testator's lifetime, or born both after the will and the death of the testator. 68 The right, however, of a posthumous child, unprovided for in the will, to share in the inheritance, exists at common law, independent of express statutory enactment.67

An after-born or posthumous child provided for in the will necessarily takes thereunder, and does not take a distributive share as though his parent had died intestate.68 A will which expressly excludes after-born chil

66 Watkins v. Watkins, 88 Miss. and without issue (Code 1904, 148, 40 So. 1001; Walker v. Hy. $ 2527), the court construed the land, 70 N. J. L. 69, 56 Atl. 268; intent and meaning to be that in Ensley v. Ensley, 105 Tenn. 107, case of a will made before there 58 S. W. 288.

is any child in being, as to a preIn

jurisdictions preter- termitted child afterward born to mitted children are those unpro- the testator, the will can not go vided for by any settlement and into operation unless the child neither provided for nor

dies under twenty-one; in consetioned in nor expressly excluded quence of which all the provisions by the will.—Watkins v. Watkins, of the will, except those relating 88 Miss. 148, 40 So. 1001; Obecny to the payment of the testator's V. Goetz, 116 App. Div. 807, 102 debts or to the appointment of an N. Y. Supp. 232; Udell v. Stearns, executor (neither of which would 125 App. Div. 196, 109 N. Y. Supp. affect the child's rights), -become 407.

inoperative during the minority of In Virginia, under a statute pro the pretermitted child, and finally viding that if any person die leav. void when he arrives at the age ing a child ... and leaving of twenty-one or marries. If, how. a will made when such person had ever, he dies under the age of no child living, wherein any child twenty-one years, all the provi. he might have is not provided for sions of the will become operative or mentioned, such will, except so and effectual.---Wood v. Tredway, far as it provides for the payment 111 Va. 526, 69 S. E. 445. of the debts of the testator, shall 67 Clarke v. Biake, 2 Ves. Jun. be construed as if the devises 673; Pearson v. Carlton, 18 S. C. and bequests therein had been 47. limited to take effect in the event 68 Minot v. Minot, 17 App. Div. that the child shall die under the 521, 45 N. Y. Supp. 554. age of twenty-one years unmarried A devise to two afterborn chil.


dren from sharing in the estate of the testator makes a provision for them within the general meaning of the statute requiring provision to be made for such children so as to prevent them from inheriting:69 The intention to exclude, however, must be clear. 70

dren of a remainder in his real estate upon the majority of the younger constitutes a provision for them within the meaning of $ 2286 R. S. 1878.-In re Donges' Estate, 103 Wis. 497, 74 Am. St. Rep. 885, 79 N. W. 786.

69 Thomason v, Julian, 133 N. C. 309, 45 S. E. 636.

Where the will clearly indicates that the testator's afterborn chil. dren were in his mind when the will was made and he made such provision for them as he thought proper, they are not pretermitted as under Ky. Stats., § 4848, only "such afterborn children as are not provided for by any settlement and neither provided for nor expressly excluded by the will are pretermitted.”—Porter v. Porter's Exr., 120 Ky. 302, 27 Ky. Law Rep. 699, 86 S. W. 546.

Contra: German Mutual Ins. Co. v. Lushey, 66 Ohio St. 233, 64 N. E. 120.

Where a will contains a clause disinheriting an unborn child, such clause does not constitute a provision for the afterborn child within the meaning of $ 5961, R. S., and the intention of the testator does not control, inasmuch as it is contrary to law.German Mutual Ins. Co. v. Lushey,

20 Ohio Cir. Ct. R. 198, 11 0. C. D. 52.

70 Where the will contains a provision that all of the testator's property shall go to his wife, this affords no extrinsic evidence from which an intention to omit provision for afterborn children may be inferred.-Carpenter v. Snow, 117 Mich. 489, 72 Am. St. Rep. 576, 41 L. R. A. 820, 76 N. W. 78.

A child born after the execution of a will by his mother and omitted therefrom and not pro vided for by settlement, succeeds to a portion of his mother's estate under the statute, although an intention to disinherit may be found from the fact that the mother, being pregnant, executed the will a few days before her delivery.McCrum v. McCrum, 141 App. Div. 83, 125 N. Y. Supp. 717.

A testator by codicil made a bequest to a son born after making his will, and in which instrument, after reciting “in the event of the death of myself, wife, and child or children at one and the same time," etc., he made changes in certain bequests. This was the only mention in the will or codicil of "child" or "children." Subsequently two daughters were born, who survived the testator, and it

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