"State ofNebraska, County of Dou,glas-8s.: I, Robert Townsend, probate jUdge in and for saia county, do hereby certify that the above is the original report of the commissioners appointed to asseflS the damages sustained by the owner of the real estate in said report described, as therein specified; and I do further certify that said Omaha & Southwestern Railroad Company has deposited with me for said owner the sum of forty-five hundred dollars, the total amount of the said appraisement. "Witness my hand and official seal this seventeenth day of May, 1873. [Seal.] "ROBERT TOWNSEND, Probate Judge." "Filed May 15, 1873. "ROBERT 'fOWNSEND, Probate Judge. "Recorded May 17, 1873, at 2:30 o'clock P. M. H. !JANS, County Clerk."
The use of said real estate for railroad purposes was convenient and necessary fortlu3 company. The $4,500 was deposited as required by law. From said assessment of damages saig Maria C. Wasserman appealed to the district court for said county, and, pending said appeal, on October 1, 1873, made a. settlement with the railway company and gave the following receipt: "Omaha and Southwestern Railroad Company in Nebraska to Maria C. Wasserman: For $1,1)25, fifteen hundred and twenty-five dollars, as money due on settlement over and above the amount allowed the said Wasserman by commissioners for the appropriation of the use of said railroad company for the following real estate, to-wit: That part of ,Jots five and six, in block two hundred and nineteen, in the city of Omaha, and state of Nebraska, lying south of the U. P. depot grounds, for the Omaha & Southwestern Railroad Company in Omaha, adjoining the U. P. depot. "Received fifteen hundred and twenty-five dollars, in full of the above MARIA C. 'VASSERMAN." account. 'fhereupon the said appeal was dismissed. The said railroad company never received any deed of conveyance for the property so appropriated. 'fhe plaintiff, in the original bill, claims right through the foregoing proceedings. As shown by the inventory and appraisement of his estate, Andrew Wasserman left at his death personal property worth about $250, the premises in controversy, and also the east half of lot 1, in block 135, in Omaha; which last parcel his widow has since sold as her own, and conveyed to one Barker, and has received the purchase money. The Statutes of Nebraska (see Compo St. 229) provide as follows: "Sec. 148. When any child shall be born after the making of his parent's will and no provisions shall be made therein for him, sllch child shall have the same share in the estate of the testator as if he had died intestate, and the share of such child shaUbe assigned to him as provided by law in cases of intestate estate unless it shall be apparent from the will that it was the intention of the testator that no provision should be matle for such child."
BREWER, J. In this case, the primary question I am reluctantly compelled to decide in favor of the complainant Wasserman. I say reluctantly; for when a man, on the eve of death, having a child five years of age, and living with a wife to be delivered of a second child within 20 days, makes a will giving all his property to his wife, I think the common voice will say that he intended no wrong to either
T · ..Y". Marquette, for the railroad company. Albert Swartzlander, for Anna Wasserman. .
CHICAGO, B.& Q. B. 00. V. WASSEBMAN.
the born or unborn child, but trusted to his mother-to do justice by each, and believed that she, with the property in her hands, could handle it more advantageously for herself and children than if interests in it were distributed. As a question of fact, independent of statute, I have no doubt that Mr. Wasserman had no feeling either against the born or unborn child, but, having implicit faith in his wife, meant that she should take the entire property, and believed that out of that property and her future labors she would take care of his children. But the legal difficulty is this: The statute says that it must be "apparent from the will that the testator intended that the unborn child should not be specially provided for. How can any intention as to this child be gathered from the will alone? It simply gives everything to the wife; is silent as to children, If I could look beyond the will, my conclusion would be instant and unhesitating. Limited by the statute to the instrument itself, what can be gathered therefrom? It is simply a devise of all property to the wife. No reference is made to children, born or unborn. Can 1 infer from its silence an intention to disinherit? If so, the mere emissions from a will would always stand as proof of an expressed intention. And whatever of apparent hardship there may be in the present case, a fixed and absolute rule prescribed by statute cannot, for such reason alone, be ignored. That the rule was intentionally thus prescribed, is evident, not alone from the clear letter of the statute, but also from the history of this question at common law, and the various provisions of the statutes of other states. At common law the will of an unmarried man disposing of all his property was presumably revoked by his subsequent marriage alld the birth of a child. This rule was borrowed from the civil law. "Qui filium in potestate habet, curare debet, ut eum, hceredcm instituat, vel cxhceredem cum nominatim faciat." Just. Inst. lib. 2, cap. 13, § 0; Hadley, Introduction Roman Law, 315. Whether revocation would follow from subsequent marriage alone, or birth of child alone, was, perhaps, 8 doubtful question. In Brush v. Wilkins, 4 Johns. Ch. 506, it was held that both must concur; while in M'Oullum v. M'Kenzie, . 26 Iowa, 510, the birth of a child alone was adjudged sufficient. See, generally, upon this question, 1 Redf. Wills, c. 7; 1 Williams, Ex'rs, c. 3, § 5; 4 Kent, Comm. 421-426. It was also, for a while at least, disputed whether such revocation followed absolutely from subsequent marriage and birth of child, or was only to be presumed, and the presumption subject to be overthrown by evidence of the testator's intentions. . Lord MANSFIELD, in Brady v. Oubitt, 1 Doug. 39, ruled that the presumption of revocation from marriage and the birth of issue, like all other presumptions, "may be rebutted by every sort of evidence." See, also, 1 Phillim, 473. Such seems to have heen generally the ruling of the ecclesiastical courts. On the other hand, in Holford v. Otway, 2 H. Bl. 522, Chief Justice EYRE held that "in cases of revo-
cation by operation of law, the law pronounces upon the ground of a juris et de jure' that the party did intend to revoke, and that presumptio juris is so violent that it does not admit of circum· stances to be set up in evidence to repeal it." And in the leading case of Ma'rston v. Roe, 8 Ado!. & E. 14, by all the judges in the exchequer chamber, it was finally decided that the revocation of the will took place in consequence of a rule or principle of law, independently altogether of any question of intention of the party himself. Such being the final solution of the question in the English courts, it cannot be that the purpose of the statute in question was to open the door to any other evidence of intention than those expressly named. On this side of the waters the matter has generally been regulated by statute, with a prevailing tendency to declare that the after-born child '\akes the same share that it would have done if the father had died ,intestate; or, in other words, that the will is absolutely revoked pro tanto, unless there is some provision made for s11ch child, or an express intention that it should receive nothing. The statute of Wisconsin is identical with that of Nebraska; and in Bresee v,Stiles, 22 Wis. 120, the inquiry as to testator's intentions was declared to be limited to the language of the will, and, the will being silent, the afterborn child inherited. See, among many cases, the following, which show how carefully the courts have enforced the rule of revocation pro tanto in the interest of the child: Waterman v. Hawkins, 63 Me. 156; Walker v. Hall, 34 Po.. St. 483; Hollingsworth's Appeal, 51 Po.. St. 518. In the first, the testator left certain real and personal estate to his widow during her life and widowhood, to revert to his heirs upon her death or marriage, and gave the rest to his father. A daught born two months after his death was held unprovided for lr by the will, and recovered the share of the estate she would have taken if he had died intestate. In the second, the testator gave his entjre estate to his wife, saying iuthe will, "having the utmost confidence ,in her integrity, and believing that should a child be born to us she yviU do the utmost to rear it to the honor and glory of its parents;" . and the same ruling -vas made. In the last case the will in terms committed any after-born child to the guardianship of his wife, adding, "which guardianship Iintend and consider a suitable an.d proper provision for such child;" and stilla similar decision was pronounced. Further citations would seem unprofitable. To.sum the matter up, the common-law courts of England finally reached the conclusion that the revocation was absolute upon;the happening of marriage and birth of issue, and not dependent upon evidence of testator's intentions. The general tendency of statute law in this country is in the same direction, and courts, as a rule, have carefully protected the rights of the after-born children. The language of the statute is plain and unambiguous. The will makes no provision for this child, does not mention or refer to her, and on iti' face· manifests no intention that she should be uQprovided for.
CHIOAGO, B. "
Q. B.· CO·. tl. ,,*SSEBMA&
Hence it mtult be held that she takes the same share in the estate whiohshe would have taken had her father died intestate, to-wit, one-half. Again, it is oontended that the will was duly probated; that the probate is in the nature of a prooeeding in rem with notioe to all the world; that by it the title was vested in Mrs. Wasserman; and that any party taking the title from her without notioe of the ex· istence of any subsequently born ohildren took good and full title. This is a mistake. The probate of a will is conolusive only as to its due exeoution. Oomp. St. c. 23, p. 229, § 143; Pettit V. Black, 13 Neb. 142; S. O. 12 N. W. Rep. 841. It does not determine the title of property whioh is claimed under it. Evans v. Anderson, 15 Ohio St. 324. In this oase the oourt say:
"The probate did not strengthen the title, but gave the will effect as evidence, and made it available. Who shall take the estate and who not, was not passed on by the probate court. This can only be determined by the law which declares the effect of the will. The devisee held the title under a valid will, sUbjeot to the condition imposed by the statute that the will shall become void on the birth of a subsequent child. If this child had not been burn alive, it would still be good. By his birth the will became void; not by reason of an erroneous probate, or the want of any fact necessary to be proven .as a foundation of that judicial sentence. The sentence is therefore immaterial. The court was not called on to impugn the sentence, but simply to declare the effect of the will in its relation to the parties." Fallon v. Chidester, 46 Iowa, 588; Bresee v. Stiles, 22 Wis. 120; 3 Redf. Wills, 61; 1 Jarm. Wills, (3d Amer. Ed.) p. 22, etc. ' .
Here the execution of the will is not challenged. Jts validity ia not denied. There is no attempt to set aside the probate. :But the oontention is that, conoeding that it was duly executed and properly probated, and assuming that it was valid, events ooourring subsequent to its exeoution have limited its soope and operation. This was a question not submitted for decision when the bill was tendered for probate, and a question which is now for the first time sl1bmitted for judioial determination. Finally, it is said that under sections 150,156, 157, 158, and159 of chapter 23, the remedy of Anna Wasserman is by Ilo against the devisee in the will, her mother, for contl,'ibution. 1 think not. While suoh a proceeding may be propel', and in somEl clLses necessary,-as, whel'e the estate is personalty, and has been distrib. uted, or partially so, or where there are speoifio bequestEi'or devises, or where the testator has named some children and omittedothera; and equities may arise out of advancements, (Hill v.Martin, 28 Mo. 78,)__nevertheless, contribution is not the only remedy. She took as heir, and the heir may claim the property itself. In Sm.ith V. Robert. son, 89 N. Y. 555, Ilo case like this, the court Bays:
"The remedies given by the statute against devjsees, to recover a portion of the property where only a portion descends to an after-born Child, do not ate to subject the estate of such child to power of l!ale contained in the will, or to confine his remedies to a pursuit Of the proceeds of sale. He is entitled,
by the plain terms of the statute, to recover the same portton of the corpm of the WhlCh he would have been entitled to had his father died intestate." See, also, same case in 24 Hun, 210; Mitchell v. Blain, 5 Paige, 588; Banford v. Banford, 61 Barb. 295; Rockwell v. (}ee'1'1/, 4 Hun, 611; Oatholic Ben.' Ass'n v. Firnane, 50 Mich. 82; S. C. 14 N. W. Rep. 707.
These are tha only questions presented. My conolusions, therefore, are in favor of the olaims of Anna Wasserman. Counsel will prepare a accordingly.
FIFE, late Sheriff, etc., v.
(Oireui' Oourt, W. D. P,nn811Zvania. January '21, 1885.)
BHBRIFF'S SALE-ACTION BY SHERIFF AFTER TERM TO RECOVIllR DIFl!'JCRENCB BETWEEN BID AND PRICE ON A RESALE.
A sheriff may bring suit more than two years after the expiration of his offi. cial term to recover the difference between a bid made by the defendant and the price at which the property was resold, upon his default to pay, and such suit is not barred by a statute which limits to that period the bringing of suits against' the sheriff.
SAME-GENERAL A!'PEARANCE-FoREIGli ATTACHMENT.
To a suit commenced by writ of foreign attachment the defendant causllU a general appearance to be entered, and pleaded to the merits. Held, that it was too late at the trial to question the jurisdiction of the court over him. In an action against a purchaser at sheriff's lIale to recover upon his bid, the sheriff's return is only primafaei, evidence against the defendant. A letter of attorney constituting one an attorney to collect debts, and bring and prosecute suits therefor, and to appearfor his principal in lind defend all actions which may be brought affecting in anywise his property and rIghts does not authorize the attorney to bid for his principal at a sheriff's sale of real estate altainst which the principal holds a mortgage.
B. SAME-8HERIFF'S RETURN.
BAME-AuTHORITY OF ATTORNEY.
BAMlll-EsTOPPEL-PRINCIPAL DENYING ATTORNEY'S AUTHORITY.
The principal is not estopped from contesting the authority of his attorney to make such bid by reason of an unsuccessful application in his behalf made by the attorney to the court from which the execution issued, to set aside the resale of the property which the sheriff made, upun the default in the payment of said bid.
inpursuanoe of written stipulation this case was tried by the court without the intervention of a jury. The following facts are, therefore, found by the court:
(1) By authority and direction of a writof venditioni ea:ponas, No. 64, July term, 1878, issued out of.the court of common pleas No.2 of Allegheny county, Pennsylvania:, sur judgment No, 638, November term, 1874, which J. T. Stockdale, trustee, etc., had obtained in said court against Jake Hill, R. H. Fife, the plaintilf in this action, who was the then sheriff of said county, did, on Friday, July 5, 1878, expose at public sale a tract of· land situate in Leet township, in said county, and more particularly described in the writ, and knocked 'the same down to P. R. Bohlen, the defendant in this action, upon a