
    Myles Burke and Wife v. Thomas J. Wilder Executor, and others.
    This bill was filed by the complainant Burke, and Jinn his wife who had been the widow of the defendant’s testator. John Tisdale, the defendant’s testator, executed his last will and testament on the 21st of October 1820, at which time his wife Ann was pregnant, of which child she was afterwards delivered, in the life time of the testator, named Munford Tisdale. The testator did not die till several years after, when he left his wife pregnant with another child, which was born after his death. That part of the will now in question is in the following words.
    “ Secondly. Unto my beloved wife, Nancy Tisdale, I give and bequeath these four negro slaves, viz. Calla, Jim, Joe, and Hester, and the future increase of the said females.
    “ Third. Unto my beloved children Ransom, Mary Ann, and John Tisdale, I give and bequeath jointly, these twelve negro slaves following, viz. Hood, Melina, Binah, Betty, Fanny, Jordon; Allen, Giles, Eav6, Edmund, Dick, and Harriet, and the future increase of the said females. The said last mentioned twelve slaves and the future increase of the said females to be equally divided between my said children Ransom, Mary Jinn, and John Tisdale, as they respectively marry or arrive at the age of twenty-one years.
    
      A provision made for a child in ven-tre sa mere, which is af-terwards bom before the death of the testator, was, held not to extend to an after born posthumous child, although the division of the property was suspended till the oldest son became twenty-one, and the division to be made between “ all his children now born or to be born.”
    The provision made for the wife allotted to her before the son’s becoming twenty-one.
    
      
      “ Fourth. Should my beloved wife JYancy be delivered of the child with which she is now pregnant, then my will and desire is, that that child shall have and receive these four negro slaves, viz. Frank, Dave, Lucy, and Robert, and the future increase of the said Lucy. These last mentioned negro slaves to be kept, together with the slaves mentioned in my other children’s bequest, until the said child shall marry or come of age: but should the child die before he or she should marry or come of the age of twenty-one, then in that case the legacy hereby given to that child shall be equally divided between my beloved wife JYancy and my other children, share and share alike.
    
      “Fifth. My will and desire is, that my executors, herein after named, do at a reasonable time sell for cash these three negro slaves, Nanee, Amy, and Auros, and purchase out of the amount of sales, and such money as may be due my estate, three other negro slaves, to be purchased. And my negro slaves Jesse and Molly be equally divided between my beloved wife Nancy and all my children now born or to be born. That part or portion of said negro slaves last mentioned which may fall to my said children is to go with the rest of their estate, and to be equally divided between them or the survivors, as he, she, or they may marry, or arrive at the age of twenty-one years.
    “ Sixth. Unto my beloved wife Nancy, and my dear chxldben now born or to be born, I give and bequeath all my plantation and tract of land whereon I now live, to them and their heirs and assigns for ever; to be equally divided between them when my son Ransom shall marry or arrive at the age of twenty-one years.
    
    
      “ Seventh. My will and desire is, that my executors do sell my grey horse, and any other property which I may have, and not herein disposed of, to be sold to the best advantage, at their discretion.
    “ Eighth. My will and desire is, that all the rest of my horses, all my cattle, hogs, household and kitchen furniture, and plantation tools, be kept together and used for the mutual benefit of my beloved wife and children, until my son Ransom shall marry or arrive at the age of twenty-one years, then such as remain shall be equally divided between my beloved wife and children. ,
    “ JYinth. My will and desire is, that the work and labour of those negro slaves herein given to my children shall be appropriated to the maintenance, support, and education, and other necessary expenditures which may be necessary, or incurred on their account.
    “ Tenth. If any of my debts should remain unpaid, and there should not be a sufficiency to pay them without encroaching on the legacies, then in that case my will .and desire is that my beloved wife and children shall go equal shares in the payment of such debts.”
    The bill prayed that the widow’s share should be allotted to the complainants, and stated that as to her share the property was not to be kept together, but only as to the children; and prayed that the posthumous child should' be permitted to come in for a share with the other children, although the provision mentioned in the will for a posthumous child was then intended for Mun-ford Tisdale, who was then in ventre sa mere. The complainants also contended that they were entitled’to one fifth, and not to a sixth, as the provision made for her was in contemplation of all children born or to be born; but that each child could only get such proportion as would be made by the number of children to be born. The bill also claimed the specific chattels bequeathed to the widow, and prayed an account.
    
      The defendant, Wilder, the executor, in his answer stated, that besides the defendants, Ransom Tisdale, Mary Ann. Tisdale, John Tisdale, and Mwnford Tis-dale, there had been born a posthumous child, Wade Washington Tisdale, arid submitted to the Court whether that child was entitled to a proportion of the property under the will, and whether by the 6th and 8th clauses of the will the proportion of the widow could be allotted off before Ransom married or came of age. The executor also asked for the construction of the Court on the 4th clause of the will. It was admitted that Munford Tisdale was the child in ventre sa mere at the execution of the will.
    Thompson, Chancellor.
    With respect to the partition and division prayed for in the bill, the Court is of opinion that it cannot be granted. The will positively directs, that the legacies, together with the other property, both real and personal, should be kept together until the testator’s son Ransom should marry or arrive at age. The power of this Court extends no farther than to construe a will, and not to make it; and this will is too plain to require construction. The second point is equally clear. It is evident from the whole context of the will, that the testator did not look at the circumstances of his estate at the time of making his will, and by using the words “ children born or to be born,” embraced the child with which his wife was enseint, as well as those which had already been born or to be born. The Court is therefore'of opinion that the payment of the specific legacies and the partition of the estate shall be postponed . until Ransom Tisdale shall arrive at age or be married, and that the posthumous child is entitled to an equal distributive share of the estate of the testator with his widow and the other children.
    
      May 1826.
    From this decree the complainants appealed.
    
      W. Mayrant, for the appellants.
    
      Haynesworth, contra.
   Curia, per

Colcock, J.

In this case I cannot conceive how a doubt could arise as to the intention of the testator. In the first clause of his will he gives absolutely and unconditionally four slaves to his wife. In the fourth he gives four negroes to the child with which his wife was then pregnant, which, he says, are to be kept together, with the bequest to his other children. And in the fifth he directs, that certain negroes be sold and others bought, which, with his slaves Jesse and Molly, should be equally divided between his wife and all his. children now born or to be born, and then adds, that the part or portion of the negro slaves last mentioned, which may fall to his children, is to go with the rest of their estate, and be equally divided when they marry or arrive at the age of twenty-one. So far, there is, certainly, nothing which conveys the idea that he intended the share given to the wife should be kept with those given to the children for any length of time. On the contrary, in the last clause referred to, he seems most clearly to distinguish between that which he has given to the wife and that which he gives to the children, and directs the latter only to be kept together. In the next and subsequent clause of the will he does direct that the property therein bequeathed should be kept together until his son Ransom should arrive at age. I can perceive no reason then, why that part of the testator’s property which is specifically given to his wife should not now be delivered to her. Some difficulty seems to be presented, in determining' what portion of the property mentioned in the fifth clause the wife is entitled to, arising from the words born or to be born; but when we advert to the situation of his wife at the time he made the will, and the different clauses in which these words are used, I think, it is clear that he referred to the child with which his wife was then pregnant and to that alone, and did not and could not have intended to make a provision for all his children who might thereafter be bom. These words are used'only in the fifth and sixth clauses; in the first of which five negroes are bequeathed, and in the latter his plantation. .Can it be imagined, that he could have intended that all the children his wife might ever have should participate in.this small portion of his property, when the rest of it was disposed of to those who were, then in being'? Besides the inequality in such disposition of his estate, it seldom happens, that a man looks so far forward as to be making provision for children not expected to be soon born. And when the words are applied to the child the construction, contended for by the defendants, would evidently violate the obvious intention of the testator and do manifest injustice to the child.' I therefore consider the testator as intestate as to him, and that he must come in under the clause of the act of 1791 and receive a share to be made up by contributions among the other children, decree does seem to direct that the widow should also contribute, but I cannot suppose that that was intended; for the words of the act are very explicit and ¿0 ncq seem to afford room for doubt. The words are, “ If no provision be made by the will of the testator for any child or children that may be bom after his death, such child or children shall be entitled to an equal share of all real and personal estate given to the other child or children, who shall contribute to make up such share or shares according to their respective interests or portions accruing to them under such will. Pub. Laws, 491. The widow is not mentioned or referred to. If then the posthumous child does not take under the fifth clause the widow is entitled to one fifth.

When a isnot ded for by the other children mother must contribute to portionequal' to the other

As to that property which he directs to be kept together, the Court have discovered no sufficient reason to direct a distribution at present: but as to the share to which the wife, under the fifth clause, is entitled, it is ordered that a writ of partition do issue and that the executor deliver up to complainants the negroes specifically bequeathed to the wife in the first clause of the will.

CeRtxficate. In this case the Court being of opinion that the posthumous child, Wade Washington Tisdale, does not take under the will, and that the complainant Nancy Burke, late Nancy Tisdale, is entitled to the fifth part of the property bequeathed in the fifth clause of the testator’s will. It is ordered that a writ of partition do issue to divide the property contained in said clause between the said Nancy and her four children, Ransom, Mary Ann, John and Munford, and that her part or portion be delivered to her, and that which belongs to the children be kept together as directed by the will. It is further ordered and decreed that the four negroes named in the second clause of the will and left to the said Nancy be immediately delivered to her. In other respects the decree of the Chancellor is affirmed.

C. J. Colcock.

D. Johnson.

Nott, J.

I concur in this opinion except as to that part relating to the youngest child, on which I give no opinion.

Decree reversed.  