#### W. W. CHRISTIAN et al. v. W. F. CARTER, JR., Executor, et al.

(Filed 13 April, 1927.)

Parent and Child — Wills—After-born Child — Statutes.

The beneficent provisions of C. S., 4169, providing for a child born after the execution of the will of the father, when the father has failed to do so, is not affected by the presumptive knowledge of the father, from the condition of his wife, that at the time he made the will he must have anticipated the birth, but upon the fact that the child was born thereafter.

Appeal by defendants from Finley, J., at February Term, 1927, of Surry.

Controversy without action. The substance of tbe agreed facts is as follows:

1. J. E. Carter and Anne Fulton were married on 4 October, 1922.

2. J. E. Carter died in Surry County on 11 May, 1923, leaving a will, dated 1 February, 1923, in wbicb be devised all bis property to bis wife, appointing ~W. F. Carter, Jr., bis executor.

3. When tbe will was made bis wife was enceinte, but neither be nor she knew her condition, and tbe child was born on 23 September, 1923.

4. W. F. Carter, Jr., as executor of tbe estate of tbe deceased, and Anne Fulton Carter, executed and delivered to tbe plaintiffs a deed for lots 54 and 55 of Fairview Heights, wbicb were a part of tbe testator’s estate.

Judge Finley was of opinion that tbe deed is invalid as to tbe interest of tbe posthumous child, and that tbe child is entitled to such part of tbe estate of her father as she would have been entitled to if be bad died intestate. It was so adjudged, and tbe defendants excepted and appealed. Affirmed. ' *

Garter & Garter for appellants.

Adams, J.

Tbe will was executed 1 February, 1923; tbe testator died 11 May, 1923; Anne Hollingsworth Carter, bis only child, was born 23 September, 1923. Tbe statute provides that children born after tbe making of tbe parent’s will, and whose parent shall die without making any provision for them, shall be entitled to such share and proportion of tbe parent’s estate as if be or she bad died intestate. C. S., 4169. This statute, and tbe decisions construing it, must control in tbe disposition of tbe present appeal. Sorrell v. Sorrell, ante, 439; Nicholson v. Nicholson, 190 N. C., 122; Howe v. Hand, 180 N. C., 103; Flanner v. Flanner, 160 N. C., 126. In Howe’s case, Mrs. Howe devised tbe land to her husband; tbe will was executed before tbe birth- of tbe children; *538the husband conveyed the land, and the children recovered it after the purchaser had been in possession for ten years

The appellants do not claim that provision was made for the after-born child, as in Rawls v. Ins. Co., 189 N. C., 368, or that the child was excluded by the terms of the will, as in Thomason v. Julian, 133 N. C., 309, but they contend that the statute has no application to the present case because the testator had no knowledge of his wife’s condition. To-sustain this position, they cite as authority Flanner v. Flanner, supra, to the effect that the law was intended to apply only when the omission to provide for an after-born child resulted from inadvertence or mistake; but this, we apprehend, does not necessarily imply the parent’s actual knowledge that the child is in esse. At common law, the subsequent birth of a child did not work a revocation of the parent’s will; but the civil law adopted and applied a different rule, which apparently was based upon the presumed oversight or inadvertence of the parent in providing for an existing or a contingent situation. It has been suggested that the object of the law is to secure the moral influence of having before the mind of the testator a contingent event so momentous as the birth of a child. Ellis v. Darden, 11 L. R. A. (Ga.), 51; Annotation, An. Cas., 1913 D, 1318. It is the subsequent birth, not the father’s-knowledge, which effects the partial revocation. Accordingly, it has been said by the Court, Chief Justice Ruffin delivering the opinion: “When it happens that a will is made by a parent who did not contemplate the birth of a child subsequently, and in consequence of that gave away all of his estate to his other children, or to other persons, thereby leaving an after-born child destitute, the law interposes this provision beneficially as supplying that which it presumes the parent must have intended to make and would have made after the birth of the child had not death surprised him, or a mistake as to the effect of his will, or an unaccountable supineness prevented him from making the alteration dictated by natural affection.” Meares v. Meares, 26 N. C., 192.

The judgment is

Affirmed.