
    Sleigh v. Strider.
    [April, 1805.]
    Devises — Estate Tail. — Devise to It. H. during Ms natural life, and no longer; and after, to his eldest son, and his heirs forever; but if no male issue, to his eldest daughter, and her heirs forever, gives an estate tail to R. H.
    Child Born Out of Wedlock- -Subsequent Marriage and Acknowledgment — Effect.—A child born out of wedlock in the year 1774, was legitimated by the subsequent marriage and acknowledgment of the parents in 1778.
    This was an appeal from a judgment of the districl court of Winchester, given for the defendants, in an ejectment brought by Henry Sleigh, and J3.1izabeth his wife, against Jacob, Isaac and Philip Strider, for twenty-one and an half acres of land in the county of Berkeley. The case agreed states, that William Hall being seined of the land, on the 21st of October, 1764, made his will, by which he devised to his son Richard Hall the land in question, during his natural life, and no longer, and after to his eldest son, and his heirs forever ; but if no male issue, to his eldest daughter, and her heirs forever.
    The testator died in December 1764, and Richard Hall, the devisee, entered on the land devised immediately after his death.
    About the year 1776, Richard Hall intermarried with Sarah West, and lived with her as his wife till his death. About two years before the marriage they had issue, a son, Thomas Hall, who was always owned and reputed to be the son of Richard Hall, who never had another son. In *the year 1778, he had issue by his wife, a daughter, Elizabeth, now the wife of Henry Sleigh, they being the lessors of the plaintiff.
    In the year 1796, Richard Hall, and her son Thomas, by deed of bargain and sale, conveyed the land in question to the defendants.
    Richard Hall died in the year 1799. Thomas Hall is still living. Richard Hall left other daughters; all of them younger than the plaintiff Elizabeth.
    The district court gave judgment for the defendants; and the plaintiff appealed to the court of appeals.
    The points made by the appellant’s counsel were,
    1. That Richard Hall took an estate for life only.
    2. That Thomas Hall being born out of wedlock, and before the act of 1785, was not eldest son of Richard Hall in a legal sense; and, therefore,
    3. That the limitation to the plaintiff Elizabeth as eldest daughter of Richard Hall, was good; and that she, on the death of her father, became entitled to the lands in controversy.
    Those made by the counsel for the appel-lees were,
    1st. That by the will of William Hall, Richard Hall took an estate in tail male by implication; which, by force of the act of 1776, concerning estates tail, became an estate in fee simple absolute.
    2d. That if this point should be in favour of the appellants, Thomas Hall, under the 19th section of the act of descents, passed in 1792, was legitimated; and as eldest son of Richard Hall, was entitled to the remainder in fee in the land in question, after the death of his father; and,
    3d. That in either case the lessors of the plaintiff have no interest in the land.
    Call, for the appellant.
    Richard Hall took an estate for his life only. Eor the words, die without issue, do not create an estate tail, either where it is manifest that the testator meant a life estate only, or where all the issue can take without *it. Popham v. Bamfield, 1 Salk. 236; Roy v. Garnet, 2 Wash. 9. Eor, in cases of that kind, the limitation is taken to mean “such issue” as those before specified, and not issue indefinitely. Thomas Hall, having been born out of wedlock before the act of 1785, was not the eldest son of Richard Hall in a legal sense; because that act says “shall afterwards” intermarry, which is necessarily prospective, and means those born subsequent to the act. Therefore the devise to the plaintiff Elizabeth, as eldest daughter of Richard Hall, took effect; and, consequently, upon the death of her father, she became entitled to the lands in controversy.
    Wickham and Randolph, contra.
    Richard Hall took an estate in tail male by implication ; which, by the act of 1776, was turned into an estate in fee simple. Eor the doctrine in Bamfield v. Popham, has been denied ever since; 1 Wms. 759; 2 Wash. 33; and the testator did not intend, that the daughter should take until after all the issue of Thomas had failed. Thomas Hall was legitimated by the act of 1792; and, as eldest son of Richard, was entitled to the remainder in fee after the death of his father. Stones v. Keeling, in this court, (ante, 143).
    
      
       Legitimacy. — Tbe principal case is cited in Bennett v. Toler, 15 Gratt. 639; Greenhow v. James, 80 Va. 650, dissenting opinion. See monongrapMc note on "Parent and Oliild" appended to Armstrong v. Stone, 9 Gratt. 103.
    
   TUCKER, Judge.

William Hall devised lands to his son Richard Hall “during his natural life, and no longer, and after to his eldest son, and his heirs forever; but if no male issue, to his eldest daughter, and her heirs forever. ’ ’ Richard Hall had a natural son born in 1776, and, in 1778, married his mother, and recognized the child as his till his death in 1796. The father and son, by deed of bargain and sale, conveyed to the defendants. The father afterwards dying without ever having any other son, but leaving several daughters, the eldest brought suit for the lands, claiming them under the before mentioned clause in her grandfather’s will.

*Mr. Call for the plaintiffs insisted, That Richard Hall took an estate for life only; that the limitation, to Elizabeth his eldest daughter, was good; and that she, on the death of her father, became entitled to the devised land, relying on 1 Salk. 236; 1 P. Wms. 54; Blackburn v. Edgely, 1 P. Wms. 600; Roy v. Garnet, 2 Wash. 9.

Mr. Wickham on the other hand, relied upon the rule in Shelly’s case, 1 Co. 99; 2 'Wash. 31; P. Wms. 7S6.

The second point made by the appellant’s ■counsel, that Thomas Hall, the son of Richard, being- born out of wedlock, and before the act of 1785, was not eldest son of Richard Hall in a legal sense; and consequently could neither take as heir, nor as devisee under the will, appearing to me, to embrace the whole case, I shall pass over the others.

The words of the act of assembly are, that, “where a.man, having, by a woman,, one or more children, shall afterwards intermarry with such woman, such child, or children, if recognized by him, shall thereby be legitimated.” Virg. Haws, 1794, ch. 93, sect. 19.

It is contended that the word “shall,” being a word importing a thing to be done, or to happen after another thing which is done, or hath happened, must necessarily refer to marriages to be solemnized after the passing of the act; and cannot be construed to have any other relation.

If this be the true construction, the meaning of the law will be the same, whether the word “afterwards,” be inserted therein, or not. But will it be said, that if that word were stricken out, the sense of the law would be precisely as it is now? The word “shall” would, in that case, indubitably apply to the time of passing the act.

The word “afterwards” can never be applied but to a thing spoken of before: But the thing spoken of before in the act, is the having children born before wedlock: And the thing to be done afterwards, is the marrying the woman, and recognizing the child.

*If the sense contended for, by Mr. Call, were the proper sense of the law, the word “afterwards” would be construed as the word “hereafter:” But I am confident, that there is not a lexicon in the English language, in which it will be found in that sense. Its synonym is “thereafter.”

Whenever a past event is scoken of, and another possible event, posterior thereto is spoken of at the same time, the word “shall” never imports a future, in reference to the time of speaking, but a future in reference to the first event only. “Shall,” in all such cases, means “shall have.”

The law intending to provide for all cases generally, this arrangement of the sentence was necessary to embrace every possible case of the kind; and was meant not only to encourage marriages after the passing of the law, but to protect and provide for the innocent offspring of indiscreet parents, who had already made all the atonement in their power, for their misconduct, by putting the children, whom the father recognized as his own, on the same footing, as if born in lawful wedlock.

BYONS, President.

The court, after conference (absent judge Eleming,) are unanimously of opinion, that any legitimate son of Richard Hall, the devisee of William Hall, who might have been born during the lifetime of his father, was capable of taking the lands in question, under the devise in the will of the said William Hall: And that Thomas Hall, son of the said Richard Hall, under the operation of the act of assembly directing the course of descents, answering to that description, there is no error in the judgment of the district court; which is therefore to be affirmed.  