Statement of the case.

expenses of administration, the widow's award and the proven debts, that the net value of the personal estate was $9209.91; that the total value of the estate was $317,917.66; that the dower of the widow in the real estate, calculated by the Northampton tables, was $62,420.70, which deducted from $308,707.75, would leave a balance of $246,287.05, one-ninth of which, to-wit: $27,365.23, would be the value of appellee's interest in the realty; that his interest in the personalty was $682.21, being one-ninth of the two-thirds of the net amount thereof, which would belong to the heirs in case of intestacy, after giving the widow one-third thereof; that the total value of appellee's inheritance was $28,047.44.

The decree, entered by the circuit court, confirms the reports of the master, and finds, that, to make up the sum of $28,047.44, the several defendants (the devisees above named) should contribute proportionately to the amounts devised and bequeathed to them, specifying the amount to be contributed by each; that the real estate, described in the will as "residue and remainder" (that referred to in above paragraph No. 14) be set off to complainant, without prejudice to the defendants, at the value of $18,725, and that the residue of the sum of $28,047.44 be paid by the trustee out of moneys in his hands, belonging to the defendants; that the real estate, specifically devised is not susceptible of partition without prejudice; it is decreed, that the trustee convey such "residue and remainder" to complainant, that the defendants pay to William Amberg, guardian of complainant, the respective sums above named (specifying them;) that said real estate and money shall be the full portion of complainant in the estate, and the balance of the property shall be free from any claim on his part; that certain defendants pay to complainant one-ninth of the net amounts of rents, received by them, etc; that the taxed costs. be borne by complainant and the several defendants in proportion to the value of their several devises.

Brief for the Appellants. Opinion of the Court.

Mr. JAMES GOGGIN, for the appellants:

The pretermitted heir should be made a sharer in each separate devise, and it was error to raise its portion out of the residuary devise. Armstead v. Dangerfield, 3 Munf. 20; Haskins v. Spiller, 1 Dana, 170; Shelby v. Shelby, 6 id. 60; 1 B. Mon. 266.

Mr. DANIEL J. AVERY, for the appellee.

Mr. JUSTICE MAGRUDER delivered the opinion of the Court:

Section 10 of chapter 39 of the Revised Statutes of this State, entitled "Descent" (Starr & C. Stat. page SS3) is as follows:

"If, after making a last will and testament, a child shall be born to any testator, and no provision be made in such will for such child, the will shall not, on that account, be revoked; but, unless it shall appear by such will, that it was the intention of the testator to disinherit such child, the devises and legacies, by such will granted and given, shall be abated, in equal proportions, to raise a portion for such child, equal to that which such child would have been entitled to receive out of the estate of such testator, if he had died intestate," etc.

No provision is made in the will of James Ward for his son, the appellee, who was born, after the making of the will, and before the death of his father; nor does it appear by the will, that it was the intention of the testator to disinherit appellee.

Inasmuch as the testator left a widow and nine children, including appellee, the portion, which appellee would have been entitled to receive out of his father's estate, if the latter had died intestate, is an undivided one-ninth of all the real estate, subject to the widow's dower therein, and two twentysevenths (2) of the net personalty, that is to say, one-ninth of two-thirds of the net personalty.

Opinion of the Court.

The testator makes separate devises of specific pieces of real estate. Appellee is entitled to an undivided one-ninth part of the realty, described in each devise, and of the rents collected therefrom, since the testator's death. Each devise of realty should be abated or reduced by an undivided oneninth part thereof, and be effective as to the remaining eightninths. In other words, one undivided one-ninth should be taken out of or deducted from each devise of real estate, and the other eight-ninths should remain under the operation of the will. For instance, the testator devises certain lots to his daughter, Mrs. Amberg. She will continue to own, as directed by the will, eight-ninths of those lots, but the title to the other one-ninth will become vested in appellee, subject to the widow's dower. It may continue to be undivided, or a partition may be made between Mrs. Amberg and appellee, as may be thought best. As to the land, embraced in this devise, no other persons, except Mrs. Amberg and appellee and the widow, are interested. The statement, here made. as to the Amberg devise, is true as to every other devise in the will.

The will is not to be revoked, but "the devises and legacies shall be abated in equal proportions." This can mean nothing else than that the proportion, in which one devise or legacy is abated or reduced, shall be equal to the proportion, in which each of the other devises or legacies is abated or reduced. If, in the present case, each devise is so reduced as to give appellee one undivided one-ninth thereof subject to dower, then all the devises are reduced in equal proportions. They would be abated in unequal proportions, if, for example, the first devise should be reduced by one undivided one-eighteenth, and the second by one undivided one-eighteenth, and the third by an undivided two-ninths. The proportion, in which the devises and legacies should be abated, is the proportion, in which the after-born child would be entitled to share in the estate, if it was intestate.

Opinion of the Court.

It is true, that the statute speaks of the portion to be raised, as "equal to that which such child would have been entitled to receive out of" the intestate estate, and does not designate it, as being the same as that, which he would have been so entitled to receive. But we understand the meaning here to be, that the several proportions, in which the several devises. or legacies are abated, shall together equal the proportion of the estate, which the after-born child would have been entitled to, in case of intestacy. If appellee, for instance, is given one-ninth of the real estate in each devise, the portions, so awarded him out of the several devises, will only be equal to that one-ninth of the whole estate, which he would have inherited under the law, if his father had died intestate.

After making specific devises of certain parts of his real estate, the testator, in the fourteenth clause of his will, authorizes the trustee to sell the "residue and remainder" thereof at a certain time, and to divide the proceeds equally among his eight children. Under the construction here contended for, appellee should have one-ninth of such "residue and remainder," and the other eight-ninths should remain subject to sale and division, according to the terms of the will. The decree of the circuit court, however, takes the whole of the "residue and remainder" from the eight children, and gives it all to appellee. The devise in the fourteenth clause is thus abated entirely, instead of being abated, as the statute requires, in a proportion equal to that, in which every other devise is abated. Moreover, by taking the eight-ninths of the "residue and remainder" out of the operation of the will altogether, the decree virtually revokes that portion of the will, which disposes of such "residue and remainder," and thereby violates the statute, which says, that "the will shall not, on that account, be revoked."

The questions here involved are presented to the consideration of this court for the first time by this case. We have been referred by counsel to few authorities and have not the

Opinion of the Court.

time to examine the statutes of the different States, and compare them with our own, to see how far adjudications, based upon special statutes, may be applicable in the construction. of the one, now under consideration. But we think the views, here expressed, are sustained by the following cases: Armstead v. Dangerfield, 3 Munf. 20; Haskins v. Spiller, 1 Dana, 170; Shelby v. Shelby, 6 id. 60; Shelby v. Shelby, 1 B. Mon. 266.

The statute, brought under review in these cases, was similar, in its phraseology, to our own. It provided that the afterborn child should "succeed to the same portion of his father's estate, as such child would have been entitled to, if the father had died intestate; towards raising which portion, the devisees and legatees shall contribute proportionately out of the parts, devised and bequeathed to them."

In Haskins v. Spiller, supra, William Spiller made a will, providing for his four children, and, afterwards and before his death, a fifth child, George Spiller, was born. George filed a bill to reach his interest in a tract, which had been devised to his brother, B. C. Spiller, and had been sold by the latter to various parties. It was held, that he was entitled to one-fifth of the whole estate; that he could sue and recover from each devisee a fifth of that, which was devised to him; that one-fifth of the tract in one entire body could be allotted to the complainant, leaving the defendant or defendants, from whom such fifth was taken, to seek indemnity, by pro rata contribution, from the other defendants, or, if the the chancellor should so determine, complainant could take "a fifth from each defendant of that, which he holds."

In Shelby v. Shelby, supra, it is held, that, where the afterborn child is entitled to one-fourth of the whole estate, each devisee must contribute one-fourth of the property devised to him. In that case, the court say, that, as the widow would have been entitled to one-third of the land during her life, the after-born child should only have one-fourth of two-thirds