Strong v. Strong

• Decision Date: 11 April 1927
• Citation: 137 A. 17,106 Conn. 76
• Court: Connecticut Supreme Court
• Parties: STRONG v. STRONG.

137 A. 17

106 Conn. 76

STRONG v. STRONG.

Supreme Court of Errors of Connecticut.

April 11, 1927

Appeal from Superior Court, Tolland County; L. P. Waldo Marvin Judge.

Application for the probate of the will of David K. Strong, deceased. The will was admitted to probate by the court of probate, and Helen S. Strong appealed to the superior court, which rendered judgment that the will was revoked. Victoria C Strong appeals. No error.

Ufa E Guthrie, of Hartford, for appellant.

Thomas C. Flood, of Portland, for appellee.

Argued before WHEELER, C.J., and CURTIS, MALTBIE, HAINES, and HINMAN, JJ.

HAINES, J.

The paper in question was executed by David K. Strong March 25 1920, as his last will, at which time he had only one child, Helen S. Strong, from whose mother he had previously been divorced, and a second wife, Victoria C. Strong, the present appellant, to whom he gave all his property by the second clause of the will. On April 29, 1922, after the making of this will, a daughter, Jean Victoria Strong, was born to the testator and his wife Victoria C. Strong. The testator died September 9, 1924, without making any change in the will and it was admitted to probate April 8, 1925. The will contains four operative paragraphs, and those material to the present inquiry are:

" (2) I give, devise and bequeath to my wife, Victoria C. Strong, of said Hebron, all the property of which I may die possessed, both real and personal, and wheresoever situated, to be hers absolutely and forever.

(3) I make no bequest to my daughter Helen Shailer Strong because I have heretofore paid to her mother sufficient sums to enable her to support my said daughter and do not feel in duty bound to make further provision for her nor do I feel that she will need any further assistance from me or my estate."

The present appeal rests upon a single claim, viz. that the superior court erred in holding that General Statutes, § 4946, operated as a total revocation of this will. The relevant portions of that statute at the time the will was made were and still are the following:

" Sec. 4946. If, after the making of a will, the testator shall marry, or if a child is born to the testator, and no provision is made in the will for such contingency, such marriage or birth shall operate as a revocation of such will."

The appellant, Victoria C. Strong, asks this court to hold that the statute should be so construed as to work a revocation pro tanto and only so far as to allow the after-born child to share in the estate under our intestate laws.

In Blake v. Union & New Haven Trust Co., 95 Conn. 194, 110 A. 833, it was earnestly argued that the statutory " provision * * * for such contingency" meant beneficial provision for the unborn child. As to this we said, at pages 197, 198 (110 A. 834):

" This palpable confusion of uses of the word 'provision‘ is neither justified by the plain sense in which the word is here employed, nor by anything in the general policy of our law upon the subject when the statute was originally enacted in 1801. To provide for a contingency is to prepare for the happening implied by its nature. Provision for assumes and implies provision of the possible event--foresight enough of the chance of its happening to indicate that any present undertaking upon which its assumed realization might exert a natural and proper influence was entered upon in full contemplation of it as a future possibility. The phrase means no more than this as the statute uses it, and demands no more of the testator in his treatment of possible future issue, than of children in existence. The statute designedly secures the after-born child against being passed by through inadvertence. * * *"

And we cited Shackelford v. Washburn, 180 Ala. 168, 174, 60 So. 318, 319, 43 L.R.A. (N. S.) 1195, where a clear differentiation was made between statutes " that require provision for the child, instead of for the contingency of a child."

The established meaning of our statute, then, requires that we find in the will of David K. Strong some provision for the contingency of an after-born child. That there is none is too clear for argument. We cannot amend the statute to provide that, if there be an after-born child with no provision for the contingency, it shall operate as a revocation of such will " pro tanto." The statute says it operates as a revocation of the will. We do not overlook the claim urgently pressed upon us, that, while the conceded purpose of the statute is to secure the after-born child against being passed by through the inadvertence of the testator, the result of holding the will revoked, will--in this case--work to the advantage of the first child and to the disadvantage of the after-born daughter, Jean V. Strong. This, however, if it follows, is not...