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Ash v. Ash et al.

the jury upon the law of the case. That motion was reserved for decision in the Supreme Court.

It appears from the bill of exceptions in the case that the testatrix had no children at the time she executed the will, and that she afterward had a child born alire, which child she survived.

It also appears that the will was duly executed, and that the only question made in the case was that of revocation. The only point in controversy seems to have been the construction of the 40th section of the act relating to wills, passed March 25, 1840. Curwen, 690. That section is in these words:

“If the testator had no children at the time of executing his will, but shall afterward have a child living, or born alive after his death, such will shall be deemed revoked, unless provision shall have been made for such child by some settlement, or unless such child shall hare been provided for in the will, or in such way mentioned therein as to show an intention not to make such provision, and no other evidence to rebut the presumption of such revocation shall be received."

It is admitted that no provision was made for said child, by settlement or otherwise, and that no mention of the child was made in the will. By the terms of the will, the whole estate is given to the husband. On the trial of the case, the court instructed the jury "that the birth of said child did not, in law, revoke said will, 385] the child having *died before said testatrix; and that the verdict upon the proof, if they believed it, and upon the admission before them, ought to be, as a matter of law, in favor of the validity of the will.” To which ruling of the court, John Ash excepted. The verdict being in favor of the validity of the will, in accordance with this ruling of the court, the complainant moved for a new trial, on the ground that the ruling of the court and the verdict were contrary to law.

Sapp & Smith, and Vance & Smith, for complainant.
M. H. Mitchell, for two of the respondents.

SUTLIFF, J. The right of the plaintiff to a new trial depends solely upon

the correctness of tbe judicial construction of the stat. ute, given in charge to the jury by the district court.

It is insisted, on the part of complainant, that there are two contingencies expressed by the statute, either of which is intended to

Asb v. Ash et al.

be a revocation of a will made by one having no child at the time of its execution :

1. Where the testator shall, after the execution of the will, have a child living, or a living child.

2. Where the testator shall, after his death, have a child born alive.

It is urged by the other party that the true meaning of the stat. ute is, that to effect a revocation, a child of the testator must not only be born after the execution of the will, but must survive the testator, or be in life after his death. The provision, according to such construction, would, as now expressed, be regarded an ellipsis; and that, if what is implied were fully expressed, it would read as follows: “But shall afterward have a child living,after his death, " or born alive after his death."

To best understand the true meaning of the statute *under [386 consideration, it is necessary to consider what was the law upon the subject prior to the adoption of the statute.

By the civil law, it was held that the birth of a child, after the execution of a will by one without children, was such a change in the domestic relations of the testator, after the execution of his will, as to constitute an implied revocation of the will.

By the common law, perhaps both marriage and the birth of a child were necessary to constitute such implied revocation.

But, in this state, prior to the statute of 1840, the subject had been long governed by legislative enactment. The act of 1816 (2 Chase, 929, sec. 3), provides as follows: "That any last will or devise so made, or any clause made thereof, shall be revocable by the testator's destroying, canceling, or obliterating the same, or causing it to be done in his or her presence, or by subsequent will, codicil, or instrument of writing, made as aforesaid, or where the testator had no child at the time of executing such last will, or codicil, and shall afterward have a child, or children-in either case, such last or codicil shall be void and of none effect, and the estate of the decedent shall descend according to the act regulating the course of descents and distribution of intestate estates."

The act of 1824 (2 Chase, 1305, sec. 5,) was as follows: “That any will and testament, or any clause thereof, shall be revoked by the testator destroying, canceling, or obliterating the same, or causing it to be done in his presence, or by subsequent will, codicil, or instrument, made as aforesaid, or when the testator had no child

Ash v. Ash et al.

at the time of executing such will, and shall afterward have a child, and in either case, such last will or codicil shall be void.” The law of 1831 (3 Chase, 1786, sec. 5,) was in the same words as that of 1824.

Nor were these provisions peculiar to our own state. In Virginia, Kentucky, Connecticut, Indiana, and Illinois, it has been 387) provided by express legislation, that the subsequent *birth of a child shall be regarded a revocation, where the testatrix had no child at the date of the will.

But the phraseology of the statutory provision of 1840, in this state, varies from the previous statutes. After the words “shall afterward have a child,as expressed by the statutes of 1824 and 1831, there are added, in the statute of 1810, the words living, or born alive, after his death.Does this change in the phraseology of the previous statutes, by that of 1840, change the previous law upon the subject in this state? It is a well-established rule, that in putting a construction upon a revised statute, the mere change in the phraseology does not work a change in the establisbed interpretation of the former statute, unless it evidently appears that such change was intended by the legislature. Taylor v. Delancy, 2 Caines' Cases, 143; Yates' case, 4 Johns. 359; Douglass v. Howland, 24 Wend. 45 ; Gaffray v. Colvill, 6 Hill, 574; Doremus v. Harrison & Whitman, 26 Ala. 326; Moore v. Bunker, 9 Foster, 431.

Under the application of this rule of construction, as well as by the more obvious meaning of the language, from its present grammatical construction, we think the statute of 1840, so far as applicable to the case at bar, in no respects differs from the previous statutes of 1816, 1824, and 1831.

We hold the legal construction of the provision of the statute of 1810, under consideration, to be, that where a person having no child living at the time of executing a will, after its execution has a child living, such will is thereby revoked ; and the will so being revoked, the fact of the testator or testatrix surviving the child, can not revive the will, or make it operative.

For the reasons expressed, a new trial must be granted.

BRINKERHOFF, C. J., and Scott and Guolson, JJ., concurred. PECK, J., was absent.

310

Harrison and Wiley v. King, Carey & Howe.

*RICHARD HARRISON AND THOMAS WILEY v. KING, CAREY [388

& HOWE.

1. While good practice requires that, upon an application for an order of at

tachment to court or judge in an action for a debt not due, the affidavit should set forth the facts and circumstances, and not merely the words of the statute, yet, if a court or judge think proper to act upon an affidavit stating the ground for an attachment, substantially in the language of the statute, it is a matter of form or practice not affecting any substantial right of the defendant, and not a proper cause for reversal upon a petition

in error. 2. Upon like principle would stand any variation from the language of the

statute which did not affect the substance of the particular ground upon

which the order of attachment was granted. 3. The affidavit and order of attachment constitute no part of the pleadings in

the action, and the grounds for an attachment should not be stated in the petition. This rule applies as well in case of an action for a debt not due

as in other actions. 4. The proper mode for the defendant to meet the charge made in an affidavit

for an attachment is by motion. In a like mode, a subsequent attaching creditor should be heard as to any question of priority between him and the plaintiff. He can not properly be made a party in the action on the ground of an interest acquired by the levy of his order of attachment upon the same property upon which the attachment of the plaintiff has been levied. If he be improperly made a defendant, there is no error in dis

missing him from the action. 5. A court of error, before reversing the decision of an inferior court upon a

question of fact involved in a motion to discharge an attachment, should be satisfied that it was clearly erroneous.

PETITION in error. Reserved in the district court of Belmont county.

An action was brought by King, Carey & Howe, in the court of common pleas of Belmont county, against Richard Harrison and Thomas Wiley, on the 11th February, 1854, upon a note signed " Richard Harrison & Co.," due March 27, 1854, for $1,404, payable to King, Carey & Howe. The petition stated that Harrison and Wiley signed the note as partners, under the style of Harrison & Co.

At the time the action was brought, an application for an order of attachment was made and allowed, and an *order of at- [389 tachment issued, but against Richard Harrison only. The ground of attachment as shown in the affidavit filed with the petition was

Harrison and Wiley v. King, Carey & Howe.

" that the said Richard Harrison is about to remove his property, or a material part thereof, and which will have the effect of hindering and delaying the plaintiffs in the collection of their debt."

There was no statement in the petition as originally filed, as to the fact of an attachment being allowed, or as to the grounds of an attachment. There were no facts or circumstances stated in the affidavit showing how the removal of the property would hinder or delay the plaintiff, or that the removal was under such circumstances as to disclose a fraudulent intent.

To the original petition a demurrer was filed by Thomas Wiley, on the ground that the note was not due when the action was commenced. This demurrer was sustained. The action was dismissed as to Thomas Wiley, and leave was given to the plaintiff to amend his petition.

The amended petition of the plaintiff states the execution of the note by Harrison alone, and that Wiley was not a partner, having been fraudulently represented by Harrison to be his partner. The petition also states the ground for attachment, to wit, that Harrison was about to remove his property, or a material part thereof, to the effect of hindering and delaying the plaintiffs in the collection of their debt. Annexed to the petition is an amended affidavit, in which it is stated “that the said Harrison, at the time of the commencement of this suit, was about to remove his property to the effect of hindering and delaying the plaintiffs in the collection of their debt, and that the said Richard Harrison was then and now a nonresident of the State of Ohio, and that said defendant was preparing to remove his property to the effect aforesaid.” This affidavit was sworn to by the counsel of the plaintiffs.

The next step in the proceeding was a motion by Thomas Wiley 390] to be made a party defendant, upon the ground *that he had an interest in the controversy, which interest is stated in the motion. The interest claimed was that Wiley had obtained an order of attachment on the 13th of February, 1854, and caused it to be levied on the same property on which had been levied the attachment of the plaintiffs. The property, it was alleged, would be exhausted by the claim of the plaintiffs, if the same were sustained. It was also alleged that there was a valid defense to the action of the plaintiffs, the nature of which, however, was not disclosed.

It is to be inferred from the record that Wiley was made a defendant. He moves the court to set aside the petition and order of

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