dissenting:
The provision of the statute is that a child born to any testator after the making of a will shall not be disinherited unless it shall appear by such will that it was the intention of the testator to disinherit such child. It is not necessary that the testator should expressly declare such intention, but it is sufficient if the will fairly manifests it. In the absence of latent ambiguity, such as the cases referred to in the foregoing opinion, in one of which the testator had two sons named John, and in the other made a devise, to “the four boys” when he had seven sons, the intention is to be gathered from the will itself. (Hayward v. Loper, 147 Ill. 41.) That rule was stated in Hawhe v. Chicago and Western Indiana Railroad Co. 165 Ill. 561, as follows: “The law is well settled that extrinsic evidence cannot be resorted to to show the intention of the testator where there is no latent ambiguity in the will, but the intention is to be determined from the language used by the testator in the will itself.” Evidence as to the circumstances surrounding a testator at the time the will is made is proper, as an aid to an intelligent construction of the language used, by enabling the court to Stand in the testator’s place and to read the will in the light of those surrounding circumstances; but when that is done, it must appear by the will that it was the intention of the testator to disinherit an after-born child, if the will is to have that effect.
The only facts apparent in this case which have any bearing upon the question to be determined are, that the testator had one child three years old, for whom he made no provision in the will, and that he had a wife, to whom he made a simple devise of all his property. By the will itself the testator manifested an intention to give all his property to his wife and to give nothing to the living child; but, in our. opinion, such facts are entirely insufficient to justify the conclusion reached in said opinion that it appears by the will that it was the intention of the testator to disinherit the child born one and one-half years after the execution of the will.
We do not regard the decision in the case of Hawhe v. Chicago and Western Indiana Railroad Co. supra, either as conclusive of the question involved in this case or as fairly tending to sustain the conclusion reached here. In that case the will was made on the afternoon preceding the death of the testator. By it he gave all his estate to his wife. He had two children when the will was executed, and a posthumous child was born about two months after the execution of the will and his death. He made no allusion whatever to his living children or to the one which was soon to be born, and in devising all his property to his wife he used language which the court regarded as very significant of an intention that no other person than his wife should, in any event, have any portion of his estate. It was said that the language used meant more than a simple devise; that language could not have been used which would more clearly express an intention that the wife, and she alone, should take and hold the testator’s estate to the exclusion of all others, and that if the testator had inserted a clause in his will that no other person should have any portion of his estate, such a provision would have excluded the two children then born and the one thereafter to be born; and yet such a provision would not have made the intention of the testator more definite than the language used. In this case the gift to the wife was an ordinary and simple devise, and one of the controlling reasons for the decision in the Hawhe case is entirely wanting. The only other fact regarded as significant in determining the intention of the testator was, that he had two children living and knew that another child was to be born within the next two months, and he made no mention of either. The living children were excluded from taking any portion of the estate, and it was not regarded as reasonable to believe that the testator intended to exclude them and not at the same time exclude the other child soon to be born. It is beyond question that the testator there had in mind both his living children and the one that would soon be born, and must have entertained an intention respecting the share which the child, when born, would take in his estate. It was, therefore, a fair inference that he had the same intention as to all. In this case the child was born one and one-half years after the execution of the will, and as it had no existence when the will was made the testator could have had no intention respecting it, different from that which almost every testator might have in executing a will. Eliminating from the Hawhe case the two facts above referred to, and which formed the basis of the decision, and there would be but little left. We cannot conceive that the decision would have been the same in the absence of such facts.
In the later case of Lurie v. Radnitzer, 166 Ill. 609, the testator had a wife and three children and a posthumous child was born about, three months after his death. In his will he devised his entire estate to his wife and the three living children, giving two-fifths to the wife and one-fifth to each of the three children. In the draft of the will he made a devise .to his child as yet unborn and in another place made reference to that child, but before the execution of the will he erased both the devise and the reference. It was held that although the testator gave his entire estate to the wife and living children and erased the devise to the unborn child he did not thereby manifest an intention to disinherit such child. The decision was based on the ground that the will contained no negative expressions whatever concerning the unborn child, and the court said: “The mere fact that the testator knew that such child was likely to be.bom to him, and that he had such knowledge when he executed his will, would not be sufficient, under the statute, to deprive such child of his share in his father’s estate.” The statement made in this case that the testator no doubt believed that the maternal devotion of his wife to her children could be relied upon to provide for them is not in harmony with what was there said concerning the intention of the testator, as follows: “Had it been his intention, as contended by appellants, that the provision in the will giving his wife two-fifths ofi his estate should inure also to the benefit of this child if born alive, we would expect to find something in the will to indicate such intention.” '•
We are of the opinion that it does not appear by the will in question in this case that it was the intention of the testator to disinherit the child born one and one-half years afterward, which had no existence at the time the will was made.