I respectfully dissent from the majority opinion which holds that the effect of the birth of the two children after the execution of the will by Rafael Joseffy was to revoke the will in toto, subject only to the contingency that the will would become effective if the children should die before reaching the age of twenty-one years. The Supreme Court has determined that the purpose of Article 8293 is to protect the rights of children born after a will is executed. This objective is attained by regarding the will as ineffective to destroy the rights such children have under the statutes of descent and distribution. In Conroy v. Conroy, 130 Tex. 508, 110 S.W.2d 568, 570, the Supreme Court so construed the statute, but has held that its provisions go no further in avoiding the testamentary declaration. A rule of construction was set out in the Conroy case and a specific illustration of its application given. It was said that the effect of the statute was to insert a proviso in the will that, 'If at my death I should leave a child born after the execution of this will, then this instrument shall have no effect as to said child, unless such child shall die before attaining the age of twenty-one years.' The Court further pointed out that, 'It may frequently happen that wills pretermitting an afterborn child may confer benefits upon various persons, and as to them the will is subject to probate, as well as because of its conditional character due to the probability of an after-born child dying before reaching the age of twenty-one years.' (Italics mine.)
If these expressions in Conroy v. Conroy be regarded as not strictly essential to a decision of the particular case, they must be considered as judicial dicta rather than mere obiter. Thomas v. Meyer, Tex.Civ.App., 168 S.W.2d 681, 685; Alexander v. Worthington, 5 Md. 471; Chase v. American Cartage Co.,176 Wis. 235, 186 N.W. 598; City of Detroit v. Michigan Public Utilities Commission, 288 Mich. 267, 286 N.W. 368.
I would reverse the judgment.