Adams v. Wilbur

1 F. Cas. 158

• Court: U.S. Circuit Court for the District of Rhode Island
• Decided: November 15, 1835
• Status: Published

Opinion

Before STORY, Circuit Justice, and PIT-MAN, District Judge.

STORY, Circuit Justice, delivered the opinion of the court. The testator (Silas G. Huddy) made his will in 1801, having then no issue; and thereby devised the premises in fee to his wife. He afterwards died, in August, 1804, leaving his wife, and a son, who was born in April, 1804; and who aft-erwards died, in July, 1818, intestate, and without issue. The wife died in 1800; and the plaintiffs claim, as heirs of the son, ex parte materna; and the defendant claims, as heir of the son, ex parte paterna.

The statute of wills of Rhode Island, of 1708, in the sixth section, provides, “That every child, or children, or their legal representatives, in the case of their death, not having a legacy given him, her, or them, in the will of their father or mother, shall have a proportion of the estate of their parents assigned unto him, her, or them, as though such parent had died intestate;" with a proviso, not important to be mentioned in the present case. This section was in force at the time, when the testator’s w'ill was made, in 1801; but, at the time of his death, .in 1804, it had been repealed (act of 4th June, 1803). If it had been in force at the time of the testator’s death, it is admitted, that the plaintiffs would have no title to the estate; as it would have vested in the son by descent, ex parte paterna, in virtue of the section. The real question, therefore, between the parties, is, whether in the intermediate repeal defeated the title, which the son would otherwise have taken. Our opinion is, that it did. The will was good and operative to all intents and purposes to pass the whole of the premises to the wife, subject only to be defeated by any title, which might accrue to the son under the section above quoted. The will was ambulatory during the life of the testator; and no title could accrue to the son until the death of the testator. If the son had died during the life-time of the testator, without issue, it is clear, that the will would have had precisely the same effect, as if he had never been bom. To give the son then any title in the estate, two things must have concurred; first, that he should have survived the testator; and, secondly, that at the time of the death of the latter, there should have been some law in force, which should confer a title on him. He- is to take, not by the bounty of the testator, but by the operation of law. Now, at the time when, if ever, this title was to accrue, there was no act in force, which conferred any such title upon him. It had been repealed; and the repeal put an end to the possibility of his acquiring any title under it The. argument of the defendant’s counsel seems to rest mainly on the foundation, that an inchoate title was created in the son by the execution of the will, which ought not to be defeated by relation by the subsequent repeal. But we take the law to be, that no inchoate title vested at all by the execution of the will; and that the son’s title, if any, must first accrue on the death of the testator. Having said thus much upon the point, it appears to me, that there is no farther room for argument upon it.

Our judgment is, that the defendant is [plaintiffs are] entitled to recover the premises sued for.