TITLE 12


Decedents' Estates and Fiduciary Relations


Wills


CHAPTER 3. AFTER-BORN CHILDREN; MARRIAGE AFTER WILL


Subchapter I. After-Born Children


§ 301. Shares of after-born children.


A child born after its parent has made a last will and testament and for which such parent made no provision, vested or contingent,
specifically or as member of a class, by will or otherwise, shall take the same portion of its parent's estate, both real
and personal, that the child would have been entitled to if such parent had died intestate. This section shall not apply and
no intestacy shall be created as to any child or children born after the date of the execution of a will in any case where
the testator has provided in the last will and testament that the birth of any child or children subsequently shall not affect
the will.


Code 1852, § 1654; Code 1915, § 3252; Code 1935, § 3716; 46 Del. Laws, c. 204, § 1; 12 Del. C. 1953, § 301; 70 Del Laws, c. 186, § 1.;


§ 302. Raising share of after-born child.


Towards the raising of the portion of an after-born child, any intestate estate of the deceased, real or personal, shall be
first applied and the residue of such portion, if there be a deficiency of such intestate estate to make up the same, or the
whole of the portion if there be no such intestate estate, shall be contributed proportionable by the devisees and legatees,
taking under the last will and testament, out of the estate or parts devised or bequeathed to them respectively.


Code 1852, § 1655; Code 1915, § 3253; Code 1935, § 3717; 12 Del. C. 1953, § 302.;


§ 303. Appraisal and assignment of intestate real estate; appointment and duties of freeholders.


(a) The Court of Chancery, upon the petition of any after-born child (which petition in the case of infancy shall be preferred
by a guardian) setting forth the facts of the case and specifying any real or personal estate of which the deceased parent
died intestate, may, by an order, appoint 5 judicious and impartial freeholders, taken from the county of the parent's last
residence or from any county where intestate real estate of the parent may be situated or from different counties, who shall
go to all the lands, tenements and hereditaments, both testate and intestate, of which the deceased parent died seised and
with the assistance of a skillful and impartial surveyor, by them to be nominated, if deemed necessary, shall appraise the
same at the true value thereof in money and also shall ascertain and estimate the amount and value of the decedent's clear
personal estate, whether bequeathed or intestate.


(b) If the intestate real estate of the deceased parent be sufficient for that purpose (subject to the rights of the surviving
spouse, if there is a surviving spouse), then they shall appraise at the true value thereof in money and lay off and allot
to the after-born child so much of the intestate real estate as will, in their judgment, be equal in value to what would have
been such after-born child's share of both the real and personal estate (subject as aforesaid) of the deceased parent, if
such parent had died intestate; and if all the intestate real estate shall not, in the judgment of the freeholders, be equal
in value (subject as aforesaid) to what would have been the after-born child's share of the real and personal estate of the
deceased parent if the parent had died intestate, then the freeholders shall appraise all the intestate real estate at the
true value thereof in money and, at such appraisement, allot the same to the after-born child towards such child's share of
the deceased parent's estate. The allotment of intestate real estate under the foregoing provisions to after-born children,
where there are more than 1, shall not be made to them in severalty, but as parceners. If there shall be a surviving spouse
entitled to dower or thirds in or to any portion of the deceased parent's estate, real or personal, testate or intestate,
the value of the whole estate and of the share of the after-born child shall be ascertained as aforesaid with reference to
the rights and interests of such surviving spouse, in such manner as to do justice to the parties concerned and unless dower
shall have been previously assigned to or released by the surviving spouse the real estate allotted to such after-born child
shall be so allotted subject to such surviving spouse's interest therein.


(c) The Court of Chancery, in making the order, may add such further instructions as it deems necessary to give full effect
to the foregoing provisions.


Code 1852, §§ 1656-1658; Code 1915, §§ 3254, 3255; Code 1935, §§ 3718, 3719; 12 Del. C. 1953, § 303; 57 Del. Laws, c. 402, § 3; 70 Del Laws, c. 186, § 1.;


§ 304. Oath of freeholders and surveyor; action by majority.


The freeholders and surveyor and all persons employed in the premises shall, before entering upon their respective duties
under the order of the Court of Chancery, be severally sworn or affirmed faithfully and impartially according to the best
of their skill and judgment to perform the duties assigned them by the order under which they act. A majority of the freeholders
may act in the premises.


Code 1852, § 1659; Code 1915, § 3256; Code 1935, § 3720; 12 Del. C. 1953, § 304; 57 Del. Laws, c. 402, § 3.;


§ 305. Vacancies among freeholders.


The Court of Chancery may fill any vacancy occurring among the freeholders.


Code 1852, § 1661; Code 1915, § 3258; Code 1935, § 3722; 12 Del. C. 1953, § 305; 57 Del. Laws, c. 402, § 3.;


§ 306. Return of freeholders; conclusiveness.


The freeholders shall return their proceedings in the premises, under their hands, to the Court of Chancery at the next stated
term thereof and the same, being confirmed by the Court, shall be conclusive.


Code 1852, § 1660; Code 1915, § 3257; Code 1935, § 3721; 12 Del. C. 1953, § 306; 57 Del. Laws, c. 402, § 3.;


§ 307. Contribution from devisees or legatees.


If the intestate real estate, allotted under the foregoing provisions, shall not, at the appraisement thereof, be equal in
value to what would have been the share of the after-born child or children of the entire estate of the deceased parent, had
such parent died intestate, the deficiency shall be made up from the intestate personal estate, if any, of such parent. If
there shall be no intestate personal estate or not sufficient to make up such deficiency the devisees and legatees, taking
under the will of the deceased parent, shall proportionately contribute such sum or sums of money as, added to the intestate
estate, will be sufficient to raise the portion of such after-born child or children.


Code 1852, § 1662; Code 1915, § 3259; Code 1935, § 3723; 12 Del. C. 1953, § 307.;


§ 308. Disposition of residue of intestate real or personal estate.


Any residue of intestate estate, real or personal, remaining after an allotment is made to an after-born child or children,
under the foregoing provisions, shall belong to the person as by law would have been entitled to the same if no child had
been born after the making of the parent's will.


Code 1852, § 1663; Code 1915, § 3260; Code 1935, § 3724; 12 Del. C. 1953, § 308.;


§ 309. Application of intestacy laws to lands allotted after-born children.


Lands and tenements allotted to after-born children under the foregoing provisions shall be subject to all the provisions
of law respecting intestate estates, as fully in all respects, as if the deceased parent had died intestate leaving no other
real estate and no other issue but the children to whom the same shall be allotted.


Code 1852, § 1664; Code 1915, § 3261; Code 1935, § 3725; 12 Del. C. 1953, § 309.;


§ 310. Posthumous children.


Posthumous children or children in the mother's womb, if born alive, are within the foregoing provisions respecting after-born
children. Such children shall take any estate or property, real or personal, by descent, transmission, gift, devise, limitation
or otherwise in the same manner as if absolutely born at the decease of its parent. If such child is not born alive, the effect
shall be the same, to all intents and purposes, as if no such child had ever existed.


Code 1852, § 1665; Code 1915, § 3262; Code 1935, § 3726; 12 Del. C. 1953, § 310; 70 Del. Laws, c. 186, § 1.;