Ash v. Ash 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 statute 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, of 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 1840, 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 established 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 1840, 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 GHOLSON, 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 attachment 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 dismissing 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 tc 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

Harrison and Wiley v. King, Carey & Howe.

attachment, upon the ground of the insufficiency of the affidavit. He also files an answer which is the denial of the truth of the statement contained in the petition as the ground for an attach

ment.

The plaintiffs then move the court to discharge Thomas Wiley from being a defendant, on the ground that he was improperly made a defendant, having no interest in the subject-matter in controversy between the plaintiffs and the defendant, Harrison.

The two defendants, Harrison and Wiley, now appear and demur to the petition, upon the ground that no facts are stated to entitle the plaintiffs to sue before the note became due.

A motion is now made on the part of the defendant, Harrison, to discharge the order of attachment, upon the ground of the insufficiency of the affidavit, and also upon the ground that the evidence in the answer and deposition of the defendant shows that the fact relied upon for supporting the attachment is not true.

The answer and the deposition of Harrison contain a denial of the truth of the charge alleged in the affidavit of the plaintiffs.

On the 19th of May, 1855, an order was made overruling the demurrer to the petition of the plaintiffs, dismissing Wiley as defendant, and overruling the motion of Harrison to *discharge the [391 attachment. To this action of the court exception is taken, and a bill of exceptions allowed and signed. On the same day a judgment in favor of the plaintiffs in the action is entered.

The bill of exceptions shows that on the motion of the defendant, Harrison, to discharge the attachment, his answer and deposition were read in evidence, and also the several affidavits in the case on behalf of the plaintiffs; which "was all the evidence in the cause."

A petition in error was filed in the district court by Richard Harrison and Thomas Wiley, and the errors assigned are:

1. That the court erred in overruling the demurrer to the amended petition.

2. That the court erred in overruling the motion of the defendant, Harrison, to discharge the order of attachment.

3. That the court erred in sustaining the motion to dismiss Wiley from the case as a party defendant.

4. That the court erred in giving judgment against the defendant, Harrison.