Waterman v. Hawkins , 63 Me. 156 ( 1873 )

Barrows, J.

One McGlinchy died February 2, 1869, leaving a widow and father to whom he gave property in his will. Two months after his death a posthumous child, for whose benefit this suit on his executor’s bond is brought, was born.

The testator devised and bequeathed to his wife, during her life and widowhood, his house and land with the furniture and other personal property on the premises — to become the property of his heirs upon her death or marriage. To his father he gave all his other property, wherever found or situate, specifying all the property in and about his store, and all his horses, wagons and teams.

The widow seasonably waived the provision made in the will for her, preferring to take her dower and allowance.

On the first Tuesday of May, 1871, the executor settled his first account, showing a balance remaining in his hands not necessary for the payment of debts or expenses of administration, of $557.39. Upon the first Tuesday of June following, the judge of probate under R. $., c. 74, § 8, decreed to the posthumous child, as not being provided for in the will, the sum of $371.50, being two-thirds of the balance aforesaid, to be taken from said residuum, which would otherwise have been the share of the testator’s father, the residuary legatee. The decree was in precise-conformity with the statute provision; for as the widow waived the provision made for her in the will, none of the property, whether specifically bequeathed or not, could pass by the will to the prejudice of the claim of the posthumous child for her share; and under these circumstances that share must, of necessity, all come from that of the residuary legatee. The decree was not appealed from. But upon demand made upon the executor in behalf of the child, he declined to pay over according to the decree, having allowed the property to go into the hands of the legatee before the birth of the child. The presiding judge, to whom the case was submitted ordered judgment for the penalty of the bond, and execution to issue for $371.50, and interest from the date of the demand and legal costs.

The defendants except, claiming:

I. That the probate judge had no jurisdiction to make the decree, because (they say) the child was provided for in the will, in the clause which gives the reversion of the property devised to the wife, to the heirs of the testator upon her death or marriage : and,

II. That, however this maybe, the child’s remedy is against the legatee, who has got the property, and not against the executor and his sureties. We are clear that neither point is well taken.

A child of a testator, born after his death, cannot, in any proper sense of the term, be deemed “provided for in his will” by a general devise of a reversion to the heirs of the testator.

There is nothing in such a provision to suggest that the child was thought of by the testator. The form of expression would indicate the contrary. To relieve the judge of probate from the duty imposed in R. S., c. 74, § 8, there must be provision made specifically for the unborn child. He cannot be disinherited like a child, or the issue of a deceased child, when it appears that the omission to refer to him was intentional. Unless he is “provided for,” the conclusive presumption is that he was not expected, and the law declares that he shall take the same share of his father’s estate as if the father had died intestate. A general devise of a reversion to the heirs of the testator constitutes no such provision. It would 'rarely be available for the support of the child when support is most needed; and while the msufficiency of the provision in the will might not entitle the posthumous child to claim a distributive share, in order to bar him it must definitely appear that some provision relating expressly to him was made. Nor can the executor relieve himself, or his sureties, by showing that he incautiously allowed the property to fall into the hands of the legatee. He is responsible first and always for the proper appropriation of the estate to the discharge of all legal claims upon it.

When he settles his account, showing a balance to be legally disjiosed of according to the order of the judge, it is no sufficient excuse for the non-fulfilment of the decree that he had misapprehended his duty in the premises, and had allowed the property to go where it did not belong. Even though it may have gone wrong with the consent of the judge of probate, founded on erroneous information as to existing facts, it will not relieve the accountant and his sureties who are responsible throughout for the correctness of his doings. Williams, J., v. Cushing, Ex., 31 Maine, 370. Exceptions overruled.

Appleton, O. J., Walton, Dickerson, Danforth and Virgin, JJ., concurred.