This is a bill in equity for instructions by the executor of the will of the late William A. Brown. The will bears date of July 9, 1872. It disposes of all the testator's estate. It contains several bequests, and among them a bequest of two thousand dollars to Mary E. Brown in trust, to invest it in bank stock and to use the income thereof for the maintenance and education of his daughter, Olive Estella Brown, until she attains the age of twenty years or is married, and then to transfer the same, together with the balance of the accumulated interest thereon, to the said Olive Estella Brown for her own use. In case of her death under twenty or unmarried, the sum so held in trust, together with the accumulated interest thereon, is bequeathed in equal shares to her brothers and sisters then living. The testator, at the date of the will, had one child, to wit, the said Olive Estella Brown, who was then less than two years old. The testator died August 13, 1873. A few hours before his death a son was born to him, to wit, the infant defendant, William A. Brown. The child is *Page 233 not provided for in the will, except as above stated. The principal question is, whether he is entitled under the statute to share in the estate in the same manner as if his father had died intestate. The statute, Gen. Stat. R.I. cap. 171, § 12, is as follows: —
"Whenever any child shall be born after the execution of his father's or mother's will, without having any provision made for him in such will, he shall have a right and interest in the estate of his father and mother in like manner as if the father or mother had died intestate, and the same shall be assigned to him accordingly."
The infant defendant, William A. Brown, has no present provision under his father's will, and will not have any at any future time unless his sister dies unmarried and under twenty years of age. If she dies under that age unmarried, he will take under the will if he is himself then alive. The provision is therefore entirely uncertain and contingent. He may or he may not have it. It is not a vested interest. Does such a provision sufficiently answer the requirement of the statute to defeat the right which he has under the statute, if unprovided for in the will, to share in the estate as if his father had died intestate? Doubtless the idea of the statute is to supply an omission which may be presumed to have been unintentional. A parent naturally wishes to provide for all his children. When, therefore, a parent makes a will without providing in it for an after-born child, it may be presumed that the omission to provide for him was not designed. To allow the will to have its full effect under such circumstances would be to allow it to defeat instead of effectuating the wishes of the testator. The law, therefore, steps in and gives the after-born child a share in the estate as if it were intestate. In the case at bar the will bears date more than a year previous to the birth of the after-born child. Of course the testator did not then have him specially in mind with the view of providing for him. Indeed, as has been suggested, the benefit of the contingent bequest is not necessarily confined to his own children. If his widow should marry again and have other children, they, too, would be brothers and sisters of Olive Estella Brown. Shall we say, then, that the will makes provision for the after-born child? If we say it does not, he may nevertheless soon *Page 234 take the provision which his sister now enjoys. If we say it does, he may nevertheless get nothing. Did the testator himself regard the bequest as a provision for any child or children which might afterwards be born to him? We find but little reason for thinking he did. Upon the whole, we think it safer and more consonant with the design of the statute to decide that the bequest over is too precarious to be regarded as a provision for the after-born child so as to defeat his right under the statute to share in his father's estate as if it were intestate. And accordingly we do so decide.
The executor desires to know what effect this construction will have on the distribution of the estate. The entire estate is disposed of. It is real and personal. The personal estate is more than sufficient to pay the debts; but, giving the son his share, is less than sufficient to pay both debts and legacies. And inasmuch as the legacies cannot be paid in full, the question arises, how and in what order they shall abate. The first provision of the will, after the direction to pay debts and expenses, is a specific devise of certain real estate to the wife, the mother, and two sisters of the testator. The plaintiff, as executor, can have no concern with this provision. The will next contains certain pecuniary bequests, viz.: a bequest of one thousand dollars to the widow, to be paid to her by the executor within four months after probate; a bequest of two thousand dollars in trust for his daughter, being the bequest above mentioned, without direction as to when or by whom it is to be paid; and a bequest of five hundred dollars to each of two sisters, to be paid to them by the executor within four months after probate. The will then gives all the rest of the estate, real and personal, to the testator's mother. The provisions for the widow are in lieu of dower. The widow elects to take under the will. The personal estate is the primary fund for the payment of debts and legacies. In the case at bar the personal estate will have to be applied first to the payment of debts and expenses; then one third of what remains must be appropriated to the son, one third thereof being the share which would belong to him if there were no will; and, finally, the remaining two thirds will be applicable to the pecuniary bequests. The bequest to the widow must be paid in full, the fund being sufficient for the reason that the provisions for the widow are in lieu *Page 235 of dower, and when such is the case a general pecuniary bequest is not subject to abatement pro rata with the other pecuniary bequests. 2 Redfield on Wills, 551; Burridge v. Bradyl, 1 P. Wms. 126; Blower v. Morret, 2 Ves. 420; Davenhill v.Fletcher, Amb. 244; Norcott v. Gordon, 14 Sim. 258; Heath v. Dendy, 1 Russ. 543; Hubbard v. Hubbard, 6 Met. 50;Pollard v. Pollard, 1 Allen, 490; Williamson v.Williamson, 6 Paige, 298. The residue, after these payments are made, will be apportionable among the other bequests, each legatee taking in proportion to the amount of her legacy.
The bill alleges that there is real estate besides that which is devised by the first clause of the will. The testator's son will be entitled to one half of this, less one third of said half during the life of his mother. One half of it, and one third of the other half during the life of the mother, will remain to be disposed of under the will. Are the legacies a charge upon this, and, if so, has the plaintiff as executor the power, and is it his duty, to enforce the charge by selling it for the benefit of the legatees?
The real estate, if charged, is charged by implication. The residuary clause reads: "I give, devise, and bequeath all the rest, residue, and remainder of my estate, real and personal, wherever and however situated, and including therewith all such other real estate as I may hereafter acquire," c., "to my mother, Betsey Brown," c. No personal estate will pass under this clause, for it will be exhausted in the payment of debts and legacies, and there will be a deficiency. Is not this deficiency a charge upon the residue of the real estate? Or, in other words, is there any residue of the real and personal estate except what remains after full payment of both debts and legacies? This question would seem, upon both reason and authority, to be determinable in favor of the pecuniary legatees. Gould v.Winthrop et ux. et als. 5 R.I. 319, and cases there cited;Lapham v. Clapp, 10 R.I. 543.
But supposing the charge exists, does it follow that the executor has power to sell the real estate for its enforcement? In Den ex dem. Snedekers v. Allen, 2 N.J. Law, *45, the court expressed the opinion that a charge of debts and legacies on land by implication does not of itself give the executor authority to sell it. In Den ex dem. Dunn v. Keeling, 2 Dev. 283, the real estate *Page 236 was devised after all just debts were discharged. The court held that the executor had no power to sell the real estate so devised. A similar decision was made in Clark v. Riddle, 11 Serg. R. 311. The residuary devisee, it is suggested, has the right to relieve the land by paying off the charge, and, therefore, should not be subject to the risk of having the land sold without suit. We do not find any case in which it has been held that such a charge confers upon the executor a power to sell the land which is subject to the charge.
Our opinion therefore is that, supposing the charge to exist, the executor is under no obligation to take measures to enforce it, but may leave the legatees to enforce it for themselves by such remedy as they may be advised is most appropriate.
The decree may be drawn accordingly.
In accordance with this opinion the complainant prepared a decree and asked the court to enter it. Thereupon, after some delay, the court delivered the following supplemental opinion.