§ 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, 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.55 The right to specific performance is the same as in cases of contracts generally, and, where not allowed, an action for damages for breach of contract will be sustained.57 The right to enforce the contract extends not only to the parties and their representatives, but to all those within the marriage consideration.58 In fact, although collateral heirs 56 53 Rice v. Rice, 53 Mich. 432, 19 N. W. 132. 54 See §§ 80-84. 55 See §§ 146-149. 56 See §§ 147, 148, 153, 154. Bright v. Chapman, 105 Me. 62, 72 Atl. 750, 57 Peck v. Vandemark, 99 N. Y. 29, 1 N. E. 41. 58 Trevor v. Trevor, 1 P. Wms. 622; Vason v. Bell, 53 Ga. 416; Beardsley v. Hotchkiss, 30 Hun (N. Y.) 605. Children born to the contracting parties prior to marriage, but thereafter legitimatized by marriage, are within the marriage consideration. - Herring v. Wickham, 29 Gratt. (Va.) 628, 26 Am. Rep. 405. Children by a former marriage are held included within the marriage consideration.-Gale v. Gale, 6 Ch. Div. 144; Michael v. Morey, 26 Md. 239, 90 Am. Dec. 106. 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.5 59 § 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; Loring v. 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; Watkins 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. § 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 atthe 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. In some jurisdictions the period is limited by statute to within ten months.65 § 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, 11 Ala. 254; Morrow v. Scott, 7 Ga. 535; Marsellis v. Thalhimer, 2 Paige (N. Y.) 35, 21 Am. Dec. 66. 63 Stimson's Am. St. Law, §§ 1412 n. a, 1413, 2621, 2844, 3023, 3135, 3136. See, also, Knotts v. Stearns, 91 U. S. 638, 23 L. Ed. 252; Bishop's Heirs v. Hampton, 11 Ala. 254; Morrow v. Scott, 7 Ga. 535; Catholic Mut. Ben. Association v. Firnane, 50 Mich. 82, 14 N. W. 707; Harper v. Archer, 4 Smedes & M. (Miss.) 99, 43 Am. Dec. 472; Van Wickle Van Wickle, 59 N. J. Eq. 317, 44 Atl. V. 877; Pearson v. Carlton, 18 S. C. 47. The birth of a posthumous child does not destroy a devise in trust to the executor with power of sale.-Van Wickle v. Van Wickle, 59 N. J. Eq. 317, 44 Atl. 877. 64 Harper v. Archer, 4 Smedes & M. (Miss.) 99, 43 Am. Dec. 472; Marsellis v. Thalhimer, 2 Paige (N. Y.) 35, 21 Am. Dec. 66. 65 Massie v. Hiatt's Admr., 82 Ky. 314; Rutherford v. Green, 37 N. C. 121; Melton v. Davidson, 86 Tenn. 129, 5 S. W. 530. 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.66 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. 148, 40 So. 1001; Walker v. Hyland, 70 N. J. L. 69, 56 Atl. 268; Ensley v. Ensley, 105 Tenn. 107, 58 S. W. 288. In some jurisdictions pretermitted children are those unprovided for by any settlement and neither provided for nor mentioned in nor expressly excluded by the will.-Watkins v. Watkins, 88 Miss. 148, 40 So. 1001; Obecny v. Goetz, 116 App. Div. 807, 102 N. Y. Supp. 232; Udell v. Stearns, 125 App. Div. 196, 109 N. Y. Supp. 407. In Virginia, under a statute providing that if any person die leaving a child . . . and leaving a will made when such person had no child living, wherein any child he might have is not provided for or mentioned, such will, except so far as it provides for the payment of the debts of the testator, shall be construed as if the devises and bequests therein had been limited to take effect in the event that the child shall die under the age of twenty-one years unmarried and without issue (Code 1904, § 2527), the court construed the intent and meaning to be that in case of a will made before there is any child in being, as to a pretermitted child afterward born to the testator, the will can not go into operation unless the child dies under twenty-one; in consequence of which all the provisions of the will, except those relating to the payment of the testator's debts or to the appointment of an executor (neither of which would affect the child's rights), become inoperative during the minority of the pretermitted child, and finally void when he arrives at the age of twenty-one or marries. If, however, he dies under the age of twenty-one years, all the provisions of the will become operative and effectual.-Wood v. Tredway, 111 Va. 526, 69 S. E. 445. 67 Clarke v. Biake, 2 Ves. Jun. 673; Pearson v. Carlton, 18 S. C. 47. 68 Minot v. Minot, 17 App. Div. 521, 45 N. Y. Supp. 554. 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. 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 children 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 O. 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 |