Higgins v. Higgins , 71 S.D. 17 ( 1945 )

It is a general rule that a provision in a will for after-born children applies only to those children who are born before the death of the testator, unless a contrary intention clearly appears from the terms of the will. 69 C.J., Wills §§ 1269, 1272, 1275; Annotation, 49 A.L.R. 177. This will provides that after-born children shall share equally "in so much of the estate as remains at the time of his or her birth." This clause, I believe, shows that the testator intended that children born after the death of testator should have the right to take under the will.

The question in this case is whether the distribution was postponed by the terms of the will until the possibility of the birth of other grandchildren became extinct. The will does not provide that the grandchildren living at the death of Maurice Higgins shall be entitled to take under it. Neither does it provide that distribution shall be deferred to any determinable future time, or at all. On the contrary, the provision of the will that after-born grandchildren share only in that part of the estate that remains at the time of their birth, shows that the distribution of the estate to the devisees shall not be deferred to await the possibility of the birth of other grandchildren.

The decree of distribution made by the county court orders that the executor shall "pay and deliver" all the property of the estate to the trustees named in the will "to and for the uses and purposes stated in said will." The decree then recites the provisions of the will without any substantial change. Therefore, I am unable to see how the decree has in any way affected the interpretation of the will.