
    Doe d. Thomas W. Ingram and Caroline his wife, late Caroline Hemphill, and Virginia Hemphill, v. Richard Roe, casual ejector, and John A. Girard and Ellen his wife, late Ellen Hemphill, tenants in possession.
    When a devise or bequest is to children, or to brothers and sisters generally, as a class, Vithout mentioning them individually by name, and the time appointed in the will for the possession or distribution of the property is deferred until after the death of the testatorj or is dependent upon a future contingency which does not occur until after his decease, it will embrace all the children, or all the brothers and sisters, or, in other words, all the objects who compose the class in being when the contingency happens, or the appointed period for the enjoyment or distribution of the property arrives, whether born before or after the death of the testator. But this is only a rule of legal or judicial construction for the interpretation of such devises, and is therefore subject to the intention of the testator to the contrary, when so indicated in the will itself; as where the devise is to the children, or to the brothers and sisters then living, or to such as may be born before the testator's death, or he has indicated his intention, either by naming a part of them or in some other way, to limit and restrict the benefits of the devise to a portion of the general class only, the rule is dtherwise, and such as are named or thus indicated will alone be included in the devise.
    The testator had devised certain portions of his real or personal estate individually, and by name, to his several grandchildren living at the date of his will, and then added, “ In case I should have any grandchildren - or grandchild born between the date of this will and my death, I give and bequeath to every such grandchild so born, on attaining the age of twenty-one years, the sum of five hundred dollars,” and in a subsequent item of the will he added: “In case any of my grandchildren herein-before named of referred to shall die before the age of twenty-one years without leaving issue, then the share or portion of the grandchild so dying to go to his or her surviving brothers and sisters, to be equally divided between them.” One of the grandchildren in being at the date of the will, and named in it, died without issue after the death of the testator. Held that such of his brothers and sisters only as were born before the death of the testator could take any share in the portion of the estate so devised to him by the testator.
    This was an action of ejectment brought by the lessors of the plaintiff, Thomas W. Ingram and Caroline his wife, late Caroline Hemphill, and Virginia Hemphill, to recover their undivided shares in a two-story brick messuage or tenement and lot of ground thereto belonging, situate on King Street, in the city of Wilmington, devised by William Hemphill, deceased, in his will to his grandson, William Hemphill, then in the possession of John A. Girard and Ellen his wife, late Ellen Hemphill, the defendants. The facts were submitted for the decision of the Court upon a case stated, which was as follows:
    William Hemphill in and by his last will and testament, duly made and published in his lifetime, and duly proved and allowed after his death, devised and bequeathed -as follows, viz.:
    Item 2d. I give, devise and bequeath to my grandson, William Hemphill, his heirs, executors, administrators and assigns, on his attaining the age of twenty-one years, all my other two-story brick messuage or tenement and lot óf ground thereto belonging, with the appurtenances, situate on King Street aforesaid, adjoining the last-mentioned messuage, and being the same which I bought of Michael Lavery, and also the sum of five hundred dollar’s in cash, and I do will and direct that the rent of said house and lot, after deducting therefrom the repairs and taxes, and the interest on said sum of five hundred dollars, from my decease, be applied to his maintenance and education during his minority, by my executors.
    Item 3d. I give and bequeath to my grandchildren, Ellen Hemphill,, Stephen Girard Hemphill, Elizabeth Hemphill, Sarah Ralston Jones, Maria Jones, and James Hemphill Jones, on their respectively attaining the age of twenty-one years, the sum of five hundred dollars each; and I do will and direct that the interest of said sum of five hundred dollars, from my decease, be applied by my executors to the maintenance and education of my said grandchildren respectively during his or her minority.
    Item 4th. In case I should leave any grandchildren or grandchild born between the date of this will and my death, I give and bequeath to every such grandchild so born, on attaining the age of twenty-one years, the sum of five hundred dollars; and I do will and direct that the interest of said sum of five hundred dollars, from my decease, be applied by my executors to the maintenance and educatian of such grandchildren or grandchild respectively during his or her minority.
    Item 5th. In case any of my grandchildren hereinbefore named or referred to shall die before attaining the age of twenty-one years, leaving issue, then I will and direct that such issue shall take the share of my estate which his or her or their parents would have taken under this will; and in case such grandchild so dying shall not leave lawful issue, then I give, devise and bequeath the estate hereby given, devised and bequeathed to such grandchild, to the surviving brothers and sisters of such deceased grandchild, their heirs, executors, administrators and assigns, to be equally divided among them, share and share alike.
    And the parties for greater certainty refer to said last will and testament, of record in the office of the Register for the Probate of Wills in and for Hew Castle County, and agree that the same and all the provisions therein contained shall be taken as part of the case stated.
    The said will was dated November 9, A. D. 1821, and William Hemphill, the testator, died February 10, 1823. William Hemphill, Jr., the devisee named in the item first above set forth, was born November 12, 1817, and died during the year 1836 without issue, leaving to survive him, at the time of his decease, the following brothers and sisters, viz.: Ellen, wife of John A. Girard (who are the tenants in possession), Stephen G. Hemphill, Elizabeth Hemp-hill, Maria Antoinette Hemphill, Virginia Hemphill, and Caroline, wife of Thomas R. Ingram; the said Virginia and Thomas R. Ingram and wife being the lessors of the plaintiff. The surviving brothers and sisters were born respectively a.t the dates following, viz.: Ellen, on the 19th of January, 1814; Stephen, on the 11th of January, 1819; Elizabeth, on the 4th of February, 1821; Maria Antoinette, on the 26th of September, 1826; Virginia, on -the 23d of August, 1828, and Caroline, on the 2d oí June,'1831.
    The aforesaid testator was at the .date of his will, and thence until and at his decease, seized in his demesne as of fee of the premises devised in the item first above set forth to William Hemphill, Jr., which premises are the same for which the defendants defend the possession.
    It is agreed that upon the above statement of facts the Court shall consider whether the lessees of the plaintiff, at the time of the demise, or either of them, were seized of or eñtitled to any estate or share, in or of the said premises, and that judgment shall be entered according to its opinion in the premises.
    
      D. M. Bates, for the plaintiff:
    Caroline, the wife of Thomas W. Ingram, and her sister, Virginia Hemphill, plaintiffs in the action, are granddaughters of William Hemphill, the testator, and sisters of William Hemphill, his grandson, the devisee named in the first item of the-will as above, stated. They were neither of them born, however, at the date of the will, or at the time of the death of their grandfather, William Hemphill, the testator; but they were both born before the death of their brother, William Hemphill, the devisee; and the only question for the Court to decide is, whether, under these circumstances and the correct construction of the fourth and fifth items of the will, they ai’e entitled to any portion or share of the premises devised to William Hemphill, their brother and the grandson of the testator, in the second item of the will, being the first item above stated, on his death without issue. I shall contend that they are.
    The words on which this question turns are to be found in the fifth item of the will, which are as follows: “In case any of my grandchildren, hereinbefore - named or referred to, shall die before attaining the age of twenty-one years, leaving issue, then I will and desire that -such issue shall take the share of my estate, which his, or her, or their parents would have taken under this will; and in case such grandchildren so dying shall not leave lawful issue, then I give, devise, and bequeath the estate hereby given, devised, and bequeathed to such grandchildren, to the surviving brothers and sisters of such deceased grandchildren, their heirs, executors, administrators, and assigns, to he equally divided among them, share and share alike.” William Hemphill, the grandson and original devisee of the premises in question, survived the testator several years, and died without issue; and in the meanwhile, that is 'to say, between the death of the testator and his death, his sisters, Virginia and Caroline, were born, and, as they claim under the latter clause of the item just read, of course tt^e time when they were to take and enjoy their part of the estate devised, as surviving sisters of William Hemphill, the devisee, was on his death without issue, which was the time appointed by the will when his surviving brothers and sisters were to take the estate to be equally divided between them. But the well-established principle of construction on this point is, that when the limitation over is to “ surviving brothers and sisters,” and the period of distribution or enjoyment of the estate is postponed, or is appointed by the will to take effect after the testator’s death, all who answer to this description, at the time appointed for the distribution or enjoyment, are included in the devise, and not such only as were born at the date of the will, or at the time of the death of the testator, as was at one time held; so that, surviving brothers and sisters, who were born in the meantime between the death of the testator and the death of the devisee for life, are let in to take equally-with the surviving brothers and sisters who were 'born before the death of the former. 2 Jarm. on Wills, 56, 58; 3 Brown’s Ch. Ca. 404; Comp. 309; 5 Ves. Jr. 136; 15 Idem, 122; 1 Cox Rep. 327; 1 Brown’s Ch. Ca. 536; 13 East, 526; 4 Paige’s Ch. R. 47; 2 Atk. 329.
    
      Patterson, for the defendants:
    The rule of testamentanconstruction relied upon by the plaintiffs does not apply in this ease, because the cases cited either relate exclusively to bequests of personal property, or, if they have reference to devises of real estate, they proceed upon some apparent intent of the testator, or some particular circumstance from which it was fair to infer that such was his intention. The case cited from 2 Atk. 329, was a case of this description. It was a bequest of personal property to a son of the testator’s daughter, and if he died before twenty-one, then to the other children of the testator’s daughter; and she had no other child or children born before the death of the testator; for which reason the Court held that he must have contemplated after-born children of his daughter. And so all the other cases cited were analogous eases, pertaining to personal bequests, or, if relating to real estate, were accompanied with words of qualification in the devise, such as “ to issue begotten, or to be begotten,” or some equivalent phrase or special provision in the will, which clearly indicated an intention on the part of the testator to let in or provide for the after-born children.
    But, admitting the rule to be a sound one, it applies only to surviving children; but in this case the devise over is to surviving brothers and sist-ers of the deceased grandchild. And there is reason for the distinction suggested, because the rule which enlarges a gift to children, so as to comprehend all who come into being before the period of distribution, is péculiar to those favored objects. For, according to the general rules of law in regard to the vesting of estates in other cases, and which have been applied to all other classes of relations and to other objects, the devise would clearly be confined to such children only as were living and in being at the death of the testator. 2 Jarm. on Wills, 52, 74, 78. But Mr. Jarman himself admits, on the authority of several cases referred to by him, that we are forbidden to apply the rule in question to devises of real estate even to children: 2 Jarm. on Wills, 638, 640; although he afterwards adds, that it is difficult to discover any ground for the distinction, unless the reason is to be found in the greater tendency which the law has towards an immediate vesting of the estate and interest of the devisees in the one case than in the other.
    But let us recur again to the matter of special intent deducible from the context of the will to which I have before referred. Is there any such intent apparent upon the face of this will ? I think there is; but it is against the admission of the surviving brothers and sisters born after the testator’s death. * At the time of making his will he had two sets of grandchildren,—the children of his daughter, Mrs. Jones, and the children of his son, Mr. John Hemphill. Of the former there were five, and of the latter there was the same number of grandchildren living at his death, William, Ellen, Stephen, and Elizabeth, and Maria Antoinette. The four first named were born before, and the latter after the making of his will, but before his < decease. The other two, Virginia and Caroline, were born after his death, but before the decease of their brother William.. And yet, with the four first named already born at the date of his will, and evidently anticipating that others might thereafter be born, he yet saw proper in the fourth item of his will to make provision for the living and his after-born grandchildren in these restricted terms: “In case I should leave any grandchildren or grandchild born between the date of this will and my death, I give and bequeath to every such grandchild so born, on attaining the age of twenty-one years, five hundred dollars,” &c. And immediately afterwards, in the succeeding item of the will containing the devise in question, follow these words: “In case any of my grandchildren, above named or referred to, shall die,” &c., that is to say, without lawful issue, then he gives and devises the estate devised to “ such grandchild so dying, to the- surviving brothers and sisters of such deceased grandchild.” But the grandchildren above referred to were already expressly spoken of and referred to by him, either as grandchildren already born at the date of his will, or such as might be born in addition to them, between that time and the period of his death”; and the limitation over, on the death of William without lawful- issue, being expressly confined to this particular class of his grandchildren, there is no reason in principle for, and no adjudged cases to warrant, the enlargement of the objects of the devise by operation of the general words his “ surviving brothers and sisters,” so as to embrace the grandchildren born after the testator’s death. On the contrary, all the authorities are against. such a construction. Nor does it weaken this view of the case that the devise over to the surviving brothers and sisters is in verbis de fresentí, “I give, devise, and bequeath to the surviving brothers and sisters,” &c., because a will speaks from the death of the testator, and words of present donation apply naturally to donees then in existence.
    There are other terms and provisions contained in the will which favor this view of the devise in question. In the introductory clause of it he confers certain powers upon his executors in regard to investing the proceeds of certain portions of his estate for the family, “ or such of" them,” to use the language of the testator, “ as are by this will to have the benefit thereofclearly indicating by this that he did not design to make a general provision for all his grandchildren without regard to the periods of their birth; but only for such as were then born or might he born before his death. In the first item, he gives to his granddaughter Elizabeth H. Jones, one thousand dollars, and a house and lot; in the second item, he gives to his grandson William H. Jones, five hundred dollars, and a house and lot; in the third item, five hundred dollars, and a house and lot, to his grandson William Hemphill; and in the fourth item, to the following grandchildren by name, Ellen Hemphill, Stephen Girard Hemphill, Elizabeth Hemphill, Sarah It. Jones, Maria Jones, and James H. Jones, five hundred dollars each; from which it is evident that the testator did not intend to put all his grandchildren even then born, upon an equal footing in his testamentary dispositions towards them, and that he did not mean to provide even for these equally, as a class having equal claims upon his bounty, his. favor and regards. And if he saw proper thus to discriminate even between these, who shall say, after reading the positive and explicit restriction contained in the fifth item of his will, that he had not the right and did riot intend to limit and confine this discrimination of his subsequent bounty and beneficence to such grandchildren as should afterwards be born between that time and his death ? Besides, such words of survivorship can never have the effect to enlarge the operation of the devise against the express provisions of the will, or the obvious intention ,of the testator apparent upon the face of it.
    
      D. M. Bates:
    
    Virginia and Caroline were born after
    the death of the testator, it is true, but before the death of their brother William Hemphill, the devisee for life, as it turned out to be. The limitation .over after his death was therefore, by the terms of the will, a contingent limitation. I do not know, however, that this is material in the case. It was a contingent limitation, because the devise over after his death without issue, was to his surviving, brothers and sisters, which was at the time uncertain. This being the case, I shall again state the general rule of construction on which the plaintiffs rely, and it is this: where a devise or bequest is made to a class of persons to vest on a future contingency, it takes in all who answer the description, or are comprehended within the class when the contingency occurs, even though they may have come in esse since the death of the testator. There are abundant authorities for this, both in devises of real and in bequests of personal estate, and I have already cited a number of them. The reason of the rule is a very simple and very sound one. It is because the objects of the testator’s bounty in such a case are not individuals, but consist of and comprehend a class, and the consideration on which it proceeds is the common and equal relation in which they all, as a class, stand to the testator, or some one else, and therefore all answering the general description, or comprehended in the common relation when the contingency happens, are to take as equal objects of the testator’s bounty. In addition to the cases before cited in the opening, I wTill refer the Court to the following authorities in support of this principle and rule of construction. Ellison v. Airey, 1 Ves. Sr. 111; Congreve v. Congreve, 3 Bro. Ch. Ca. 530; Leak v. Robinson, 2 Meriv. 362; Deavisne v. Mellon, 3 Bro. Ch. Ca. 537; Clark v. Clark, 11 Eng. Ch. Rep. 318; Western v. Tooter, 7 Metc. 299; 2 Jarm. on Wills, 74 et seq. This rule, which has not been impugned in itself upon the other side, applies equally to devises of real estate and to bequests of personal property. The cases which I have cited from 3 Bro. Ch. Ca. 530; Comp. 309; 1 Cox, 326; and 2 Meriv. 362; were all cases of devises of real estate. And the rule is the same whether the limitation over is to children, or to brothers and sisters ; because in the first instance, the objects are designated by their filial, and in the latter, by their fraternal relation, and are substantially the same. As to the aid which the other side imagine they have derived in discovering the intention of the testator, which is to override this rule of construction ; from the context of the will and the verbal criticism and dissection of detached phrases and passages contained in it, one remark will suffice, I think, to dispose of the whole of it. They consider and interpret the limitation or provision contained in the fifth item of the will, and which is confined to grandchildren born after the date of the will and before the death of the testator, to apply to the premises in question devised to William Hemphill, the grandson, whilst I understand and maintain that it was only intended to provide that if there should be any grandchildren so born, they should have a legacy of five hundred dollars each, the saíne as the grandchildren already born at the date of the will; and although the testator refers in the succeeding clause of his will to this item, when speaking of his grandchildren, as “before named or referred to,” yet there is nothing and can be nothing in a mere reference like this, to indicate an intention to exclude the grandchildren born after his. death, from'taking a share of the house and lot devised to his grandson William Hemphill, on his death without issue, or to warrant a departure from the .well-established rule for which I have' contended, in the construction of this devise. '
   Houston, J.,

delivered the opinion of the Court: This case has been argued twice before the Court; once before the present Chief Justice came upon the bench, and again at this term. The question involved in it has, therefore, been maturely considered and well discussed by the counsel on both sides, and I now proceed to-announce the opinion of thp Court upon it. ,

There is no doubt about the general principle, or abstract rule of legal construction, in regard to the testamentary dispositions, stated and relied upon in this case by the counsel for. the plaintiff. It is true, it was at one time considered that only the children who were in being at the time of executing the will could take under such a devise, and that it was afterwards held, that as the will took effect from the death of the testator and not before, all who were horn and in being at that time were equally entitled to the benefits of it. But later decisions have still further enlarged these devises in certain cases, both in relation to real and personal estate, and the general rule of construction, as stated and deduced from the authorities cited, is now too well established to be doubted or denied. Still, it is only a rule of legal or judicial construction, in the interpretation of such devises, and as there is nothing of a technical character in the force and operation of it, like other general rules of testamentary construction, it has always been held tó be subject and subordinate to the intention of the testator to the contrary, when so indicated in the will itself. 2 Jarm. on Wills, 74; Annables v. Patch, 3 Pick. 364; Dingley v. Dingley, 5 Mass. 537. In the latter case, which was a devise similar to this, Parsons, Oh. J., remarks: “ The expression in the will is general, to be divided between his, Abner’s, sons,’ which includes all his sons. If he had intended to confine his bounty to his grandchildren then living, he would have so limited it, either expressly, or by naming them, or in some other way.”

The general rule, which has been correctly stated, we understand to be this: When the devise or bequest is to children, or to brothers and sisters generally, as a class, without mentioning them individually by name, and the time appointed for the possession, or distribution of the property, is deferred until after the death of the testator, or is dependent upon a future contingency which does not occur until after his decease, it will embrace all the children, or all the brothers and sisters; or, in other words, all the objects who compose the class in being when the contingency happens, or the appointed period for the distribution or enjoyment of the property arrives, whether born before or after the death of the testator. But, as we have before observed, this is not the rule, for it has no application to the case, when the testator has expressly limited his bounty to a portion of the class, as to the children, or the brothers and sisters then living, or such as may be born before his death, or he has indicated his intention, either by naming a part of them, or in any other way so to limit or restrict the benefits of the devise to "a portion of the general class only.

And if such only is the extent and operation of ,the rule in question, is there no purpose or intention apparent in the several items and provisions of this will, in relation to his grandchildren, which indicates a design, on the part of the testator, to restrict every devise and bequest contained in it, so far as it relates to them, to a part of them only; that is to say, to such only as should be in existence at his death? We think there is; for, in the first place, all of them who were born and in being at the date of the will, are respectively and individually named and referred to in some item or other of it, and they are severally provided for by immediate gifts of real or personal estate, or both, as his grandchildren then living at the date of his will. But not content to stop here, he afterwards proceeds, in a subsequent provision of the will, to say: “ In case I should have any grandchildren, or grandchild, born between the date of this will and my death, I give and bequeath to every such grandchild so born, on attaining the age of twenty-one years, the sum of five hundred dollars,” which was in amount just the same legacy which he had before bequeathed to several of his grandchildren respectively, who were then in being at the time of making his will. If he did not intend, so far as he has thus proceeded in the preparation and expression of his will with regard to them, to limit and confine his bounty towards them to such as' were then born, and might be born, between the date of his will and the time of his death, why should he have employed terms of such unequivocal and positive restric-' t-ion in this, the only clause of his will which contains any express or necessary reference to his prospective and future grandchildren at all? And in the next succeeding item he adds: “ In case any of my grandchildren, hereinbefore ■ named or referred to, shall die before the age of twenty-one years, leaving issue,” then the issue are to take the share or portion of his estate which the parent would have taken if living; but if any should die without issue, then the share or portion of the grandchild so dying is to go to his or her “ surviving brothers and sisters,” to be equally divided between them. The words, “ grandchildren hereinbefore named, or referred to,” seem not only to be susceptible of a very simple explanation, but also to have a very plain and appropriate meaning and relation to what has before preceded them in the will; for all his grandchildren who were then born, and whom he could therein-before name, he had already severally named in his preceding devises, or bequests, to them individually and respectively; and such as he could not name, from the fact that they were not yet in being, he had referred to as his grandchildren who might be born between the date of his will and the period of his death. And having thus indicated and expressed a clear and explicit intention, as we think, throughout the previous provisions of his will, to limit and restrict to such of his grandchildren as were then born, and those who should thereafter be born before his death, all the immediate and prospective, or vested and contingent limitations of his bounty, whether given to them presently and severally in the first instance, or collectively and in common, by way of remainder, afterwards, it seems to us it would be extremely unreasonable, if not absurd, to suppose that he would suddenly drop and depart from his original and well-defined intention, as thus exhibited and preserved throughout the preceding portions of it, almost in the last four words of his will, having any relation to these parties, when he comes to wind up and finally dispose of the remote and ultimate contingencies of these devises and bequests to the “ surviving brothers and sisters” of his grandchildren, thereinbefore named, or referred to, as then existent, or to be born before his death. But read in the connection in which these latter words stand with the foregoing provisions of the will, they have relation to the objects, or the grandchildren before named or referred to, and consist of the same class to which his bounty had been expressly limited and restricted in the preceding provisions of it, in- regard to these grandchildren of the Hemphill stock; for the words, “ surviving brothers and sisters,” in this case, import and mean the same persons, as if the testator, instead of adopting this phrase, had used the words, “my surviving grandchildren above named and referred to, of that branch or stock;” but there being grandchildren of the name of Jones, as well as Hemphill, who were only collaterally related, and between whom, of course, he intended to create no cross limitations over, in this or any of the other items of the will, it was more concise and convenient for him, in this passage of the will, to drop the relation in which they stood to himself as his grandchildren, and to speak of them as “ surviving brothers and sisters,” in their relation to each other. We are, therefore, of the opinion that there is nothing in these words, in the present case, when taken in the connection and relation in which they stand to the rest of the'will, and when correctly interpreted and understood, which can have the effect to enlarge the operation of the devise in question, so as to include any of the surviving brothers and sisters of William Hemphill, the grandson and devisee; or (which is the same thing expressed in other words) any of the surviving grandchildren of the testator, born after his death. We must, therefore, give'judgment for the defendants.  