
    Mary E. Shearman, and Ann M. Shearman v. Justus Angel, Executor of Isaac Waight Tucker.
    The testator devised apart of his estate to his “mother,” for life, and at her death, to her children ; and devised another part of his estate, to a “ sister.” The testator, and the “ sister,” were illegitimate children of the “mother,” who at her death left two other legitimate children surviving her. Held, that describing the mother and her illegitimate daughter, by the terms “ mother,” and “ sister,” did not sufficiently manifest the intention of the testator to inplude the latter in the devise to the “ children” of the former; and that the legitimate children were alone intitled to take.
    Illegitimate children cannot take, together with legitimate children, under a devise to “ children” generally, unless the intention of the testator to include them is manifested by clear expression, or necessary implication, on the face of the will itself: parol evidence of such intention is inadmissible, vide Wish v. Kershaw, infra, note, S. P. as to grand children.
    A bequest of personalty to one “ and her children,” vests an absolute estate in the legatee. / '
    
    Isaac Waxght Tucker, by his will, made in 1814, devised and bequeathed, as follows. “ I give, devise, and bequeath, to my be. loved mother, Mrs. Elizabeth Shearman, a part of my plantation on John’s Island, <Szc.” “ which part shall contain 500 acres, and shall be run off in such manner as to include the dwelling house, &c.” which said part or parcel of land, I give to my said mother, du. ring her life, and at her decease to her children, forever. Also, 1 give, devise, and bequeath, to my said mother, Mrs. Elizabeth Shearman, the following negro slaves, viz. Cretia, Jupiter, Mary-Ann, Scipio, Juba, and her two children, Juno, and Willoughby, Jenny, and Toney, together with their issue, to her, my said mother, during her life, and at her decease, to her children, forever. Also, I give, and bequeath, to my said mother, one thousand dollars of the money belonging to me, and now in the hands of the executors of my father’s estate ; likewise, seven cows, and all my bedding ; to her, my said mother, and her children, forever.” And after direc. ting several of his slaves to be emancipated, and bequeathing to them the sum of one thousand dollars, the testator’s will proceeds : “ I give, devise, and bequeath) to my dear sister, Martha Angel, and her husband, Justus Angel, all, and singular, the remainder, and residue of all my estate and effects, both real, and personal, wherever situated, lying, or being, to them, and their heirs, forever; but the sa'^ property shall not be subject to the debts, which have been, or may hereafter be, contracted by the said Justus Angel. Lastly, I do make, constitute, and appoint, my brother-in-law, Justus Angel, an(l John P. Wilhelmi, of Charleston, executors of this my last will and testament.”
    The testator, and Martha Angel, were the natural children of Mrs. Shearman, 'then Miss Tucker, and Isaac Waight, of John’s Island, from whom the testator derived his estate. The complainants were the legitimate children of Mrs. Shearman, by a subsequent marriage. ' The defendant, Justus Angel, qualified as executor of the testator’s will; and Mrs. Shearman having died, this bill was filed by the complainants, for an account of the real and personal estate devised to her by the testator.
    The complainants claimed the whole of the real estate, and slaves, by virtue of the express limitation to the children of Mrs. Shear-man; and they also claimed the bequest of $1,000, and the cattle, &c., as subject to the same limitation, and prayed that the defendant might account for it.
    The defendant, in his answer, insisted, that the language of the will was equivalent to a declaration plain, that the testator intended his sister, Mrs. Angel, to be regarded as one of the children of his mother, Mrs. Shearman, to whom the land and slaves were limited after her death ; and the defendant contended, that he was intitled to one third part of them, in right of his said wife. As to the bequest of $1,000, and cattle, and bedding, the defendant submitted, that under the terms of the will, Mrs. Shearman took an absolute interest; and the legacy having been long since paid, and delivered to her, by the defendant, he was not bound to account for it.
    The cause came on to be heard at Charleston, in February, 1829, before Harper, Chancellor, who made the following decree.
    Harper, Ch. The principal question in this case, is, whether Mrs. Angel can take under the devise, and bequest, contained in the will, as one of the children of Mrs. Shearman.
    In the case of Wish v. Kershaw, determined by the Court of Appeals, 1 understand these points to be fully settled: first, that under a devise to * children,” (in that case “grand children,”) illegitimate children cannot take along with such as are legitimate; and second, that parol, or extrinsic evidence, is not admissible to shew, ^iaj- the testator intended to include them. To be sure, a question may be made, whether, if the testator, in addition to the general devise to children, goes on to explain, and designate the persons intended, so as to shew, that he meant to include illegitimate children, as well as legitimate, his, disposition may not have effect. So the Law Judges, to whom the case was sent for an opinion, seemed to think, in the case of Wilkinson v. Adam, 1 Yes. & Bea. 422. And such I should suppose to be the law. A testator may give to illegitimate children ; nor is there any thing in the law to forbid his giving to legitimate and illegitimate children by the same yyill. If after giving to the whole, as children, he should go on to designate the particular persons intended, by name,' or description, so as to put it out of all doubt, what his meaning was ; or should, say, expressly, illegitimate, as well as legitimate; I cannot perceive any reason, why his dispositions may not have effect.
    The difficulty in most of the cases has arisen from the uncertainty of the will, and the attempt to explain the testator’s intention by parol, or extrinsic testimony. In the case cited, the Chancellor says, “ In all the cases that I have seen, having relation to this question, the illegitimate children, if they were to take, must have taken, not by any demonstration, arising out of the will itself, but ^ lhe effect of evidence dehors, read, or attempted to be read, with a view to establish, not out of the contents of the will, but by something extrinsic, who were intended to be the devisees ; and if Íu(%ment uPon this case is supposed to rest upon any evidence out of the will, except that which establishes the fact, that there were individuals, who had gained by reputation, the name and character of his children, that conclusion' is drawn without sufficient attention to the grounds on which the judgment is formed.” 1 Ves. & Bea. 462. It is true, the Chancellor, in that opinion, adverting to the argument, that “ legitimate and illegitimate children, cannot take under the same description,” adds, “ and it would bo difficult to persuade me that they can.” 16.468. But if, in addition to the same general description, there should be a further particular description of the individuals, or of the separate classes, I do not perceive, why the plainly expressed intention of the testator may not have effect. In another part of the opinion, the Chancellor says, “ where an unmarried man, describing an unmarried woman, as dearly beloved by him, does no more than making a provision for her and her children, he must be considered as intending legitimate children; as there is not enough upon the will itself to shew, that he meant illegitimate children : and my opinion is, that such intention must appear, by necessary implication, on the will itself.” lb. 465. And he goes on to explain what he means, by necessary implication. As settled by the authority of our own Court, and other adjudged cases, 1 should say, that if there be a devise “ to children,” the fixed and settled rule is, that this imports legitimate children; and that if the words are to be explained, or enlarged, so as to include the illegitimate, it must be done by clear expression, or necessary implication, on the face of the will itself. This is, at least, as far as any of the cases have gone.
    In this case, no extrinsic evidence was offered, except that which appeared on the pleadings, and which I consider admissible ; to wit: the fact, that these parties did stand in such relations ; that the complainants were the legitimate, and the testator, and Mrs. Angel, the natural children, of Mrs.- Shearman. The devise, after the death of Mrs. Shearman, is to “ her children ;” and we are to inquire, if, independently of these words, the will furnishes any clear expression, or necessary implication, of the intention to include Mrs. Angel. I cannot discover any such. The only argument is drawn from his calling Mrs. Shearman, his mother, and Mrs. Angel, his sister. But this is entirely inconclusive. If we suppose, what perhaps I ought to presume, that he knew the law, — that an illegitimate is not a child, — we should come to the conclusion, that he did not intend to include her. He may have known the law, and yet have used the terms of affection, “ mother,” and “ sister,” to which he had been accustomed. Independently of the rule of law, I cannot arrive at any certainty of conviction, that he did intend to include Mrs. Angel, in this devise. He makes a present provision for her, by giving her the residue of his estate ; and may, probably enough, have intended this devise for the benefit of his half sisters, after the death of their mother.
    This does not seem to me so strong a case as that of Swaine v. Kennerly, 1 Ves. & Bea. 468. There a testator devised to “ all and every the child and children of the testator’s late son, Thomas Swaine, deceased, equally to be divided between, or amongst them, to hold as tenants in common, and not as joint tenants, and to the respective heirs of the body, or bodies of all and every such child, or children.” The deceased son, Thomas Swaine, had left but one legitimate, and he left two illegitimate children ; and yet it was held, that the legitimate son was exclusively intitled under this devise.
    Another question has been made in this case, as .to the bequest of #1,060, and some cattle, &c.,to Mrs. Shearman, and her children. I think it very clear, that under the terms of this bequest, she took the absolute property in the subject of it. The gift is “ to Mrs. Shearman, and her children, forever.” This would have' given an estate tail in real estate, and gives, therefore, an absolute estate in personalty.
    It is, therefore, adjudged, and declared, that the complainants are intitled to all the real and personal estate, which was devised by the will of Isaac Waight Tucker, to Elizabeth Shearman, expressly for life, and at her decease, to her children ; and that the said Elizabeth Shearman, took an absolute estate under the pecuniary bequest, &c., to her, and her children. And it is ordered, and decreed, that the defendant account to the complainants according to the principles of this decision.
    The complainants appealed from so much of this decree, as dedared that Mrs. Shearman took an absolute estate under the bequest to her and her children; and the defendant also appealed from so much of the decree as declared the complainants to be exclusively intitled under the devise and bequest to the children of Mrs. Shearman.
    Gkimke, for the complainants.
    The several devises and bequests to Mrs. Shearman, must be read in connexion. It is conce^ec^’ ^lat under the two first, she took only an estate for life ; and it is manifest, that the testator meant the same thing in the last. The bequest to Mrs. Shearman, was absolute, and the words, “ and ^er children,” were intended to restrain the gift.
    vida Mmiles, v¿nte, p. 298.
    If this construction is not sustained, then it is clear, that Mrs. Shearman and the complainants took as tenants in common. Oates v. Jackson, Str. 1Í27.
    Petigrtj, contra.
    
    To control the plain import of one clause of a will, by the terms used in another, would be to say, that the testator shall dispose of his estate only in one way. Where a testator, has used different sets of words, producing different effects, in different clauses of his will, the reasonable inference is, that he intended to produce this difference in the effect. At all events that is the legal inference, and in this case theré can be no doubt, from the subject matter of the bequest, that the testator intended it to be absolute.,
    Upon the effect of the words of the bequest, there can b.e as little doubt. They give an estate tail in land, and according to a well settled rule, they give an absolute estate in personal property. The principle contended for by the complainant, would render every bequest of personalty a gift for life only; and convert every attempt ,of the testator to enlarge the estate, into a limitation over, by way of executory devise.
    As to the main question, it is true, that a devise to children, means, to legitimate children ; but the authorities concur, that if the testator shews by his will, that he intended to include illegitimate children,- this intention will be carried into effect. And parol evidence js admissible, not indeed to prove by direct testimony, the intention of the testator, but to shew the state of things, on which the intention expressed in the will is to operate, and thus to establish what that intention must have beep, Me.tham v. Dujke of Der von, 1 P. Wms. 529, Cartwright v. Vajydry, 5 Ves. ,580, ,Co. Litt. 3 b, Wilkinson v. Adam, 1 Ves. & Bea. 422, 432, 468, Godfrey v. Davis, 6 Ves. 43, Harding v. Glyn, 1 A&. 469, Hands ,a. Hands, 1 T. It. 437, note, 2 Bridgman’s Digest, 746, Title, Words, 76, Barwick v. Miller, and Gayle, 4 Desaus. 434.
    All this is conceded by the decree, but then it .is said, that the.intention ,to include the illegitimate child, does not sufficiently appear. It is difficult to imagine, how the testator could more distinctly shew, that he considered Mrs. Angel ,to be one of “ the children” of Mrs. Shearman, for whom he was making provision, than by calling her “sister,” and Mrs. Shearman, “mother.” This would be so, if he had been himself legitimate ; but,the case becomes infinitely stronger, when it is remembered, that this is the case of a bastard devisor. How can we suppose him to repudiate, in regard to his sister, that relation to their common mother, which he acknowledges as the connecting link between himself and all of the family, including this very sister by name, and at the same time makes that relation the foundation of his bounty to all of them ? Besides, the testator’s whole estate came from the common father of himself, and his bastard sister; and to suppose, that it was his intention to exclude that sister from sharing in the property, and to give it all to his half-sisters, is to do as great violence to the feelings of our nature, as it does to the language of the testator’s will.
    Grimke, in reply,
    cited Bell v. Phyn, 7 Yes. 459. The construction of the Chancellor, is unquestionably the true legal construction ; and it may be added, that it is the only safe on,e. His reasoning is conclusive to shew, that in the present case, it is the construction which most probably effectuates the actual intention of the testator. A separate provision is made for the illegitimate sister ; and therefore it is most-reasonable to infer, that he did not intend her to share in the provision made for the others.
    
      
       In the Court of Appeals, at Charleston, November, 1827.
      Harriet Wish v. Charles Kershaw, Executor og Elizabeth Morton.
      This was a feigned issue, made up in the Court of Common Pleas, to try the right of the plaintiff to a share of the estate of the defendant’s testatrix, under the following clause in her will: “ My will is, and I hereby direct my executor, hereinafter named, to divide my property into as many shares as I have grand children; and to the grand children, who shall have attained the age of twenty-one years, or be married, at my death, my said executor shall give, to each a share: and the remainder he shall so dispose of as, in his opinion, will best contribute to the interest of those under age, and not married; and as soon as they shall have attained the age of twenty-one years, or be married, then he shall give to each a share.”
      The plaintiff was an Ubgitimate grand daughter of the testatrix, who left also several legitimate grand children, surviving her. On the part of the plaintiff, parol proof was offered to shew, that the testatrix regarded the plaintiff as one of the grand children provided for by her will. This was objected to, but was admitted subject to exception; and the proof was full and conclusive to the purpose, for which it was offered. The jury, by a special verdict, found the facts above stated, and added: “ We further find, that the testatrix did intend to include the plaintiff, in the term grand children; and if the Court shall be of opinion, that parol evidence can be received, to prove such intention, then we find for the plaintiff: otherwise, if such evidence cannot be received, then we find for the defendant.”
      The presiding Judge gave judgment for the plaintiff, and the defendant now moved to reverse the judgment.
      Colcock, J. The question submitted by the special verdict is, whether parol evidence was admissible, to shew the intention of the testatrix. There may be a difference of opinion, as to the application of the rule on this subject; but there can only be one opinion as to the rule itself. It is very certain, that parol evidence is only admissible, in such cases, to explain a latent ambiguity.’ If a testator devises his estate to a person, or class of persons, by name, or description, and it turns out, that there is no one to whom the description properly applies, parol evidence may be admissible to shew, to whom the testator intended it to be applied: for here is a latent ambiguity, that is, an ambiguity ascertained by extrinsic proof, and which may, therefore, be explained by proof of the same sort; and which, if not explained, would render the will inoperative. But if there are persons answering the description, and evidence is offered to shew, that the testator intended to include other persons, not coming within the description contained in the will, such evidence cannot be received; for there is no ambiguity to be explained, and the evidence is, in fact, offered for the purpose of altering the terms of the will, although there is nothing doubtful, either as to its construction, or its application.
      The devise in this case is to grand children; and there are such persons. There are those who are known to the law as grand children; and all who come within the description, are, by the terms of the will, intitled to take. Where then is the ambiguity to be explained ? If the plaintiff comes within the description, she is intitled to a share of the estate; and if she does not, she is intitled to no part of it: but in either case, the will is clear, and intelligible, and no ground exists for extrinsic explanation of the intention of the testatrix. This is the true view of the rule, as it was laid down in the case of Lord Walpole v. The Earl of Cholmondeley, 7 T. R. 134; in which case Lord Kenyon said, “ we may safely lay down as a rule, that in order to make such evidence admissible, the party, proposing it, must put his case into a situation to enable the Court to receive it; he must shew a latent ambiguity, without which the Court cannot receive it.” lb. 144. In the present case, the plaintiff claims as a grand child ; and the answer is, that she is not known in law as such. Then it is, that an offer is made to shew by parol proof, that the testatrix actually intended to include her under that term. This is certainly not within the rule. It is to alter the will, and not to explain it. The true question is, whether she can legally be brought within the description contained in the will; and it is clear from the authorities, that she cannot. A bastard is nullius Jilins; and therefore, if an estate be limited to the eldest issue of B., a bastard son of B., although he be his eldest issue, shall not take. Co. Litt. 3 b. In the case of Godfrey ». Davis, 6 Ves. 43, anillegitimate child was held not to be intitled, under the description of a child contained in the will; although the testator knew the state of the family, and that there were several illegitimate, and no legitimate children. So also in Bell v. Pliyn, 7 Ves. 458, it is laid down, that the term “ children,” legally construed, is confined to legitimate children. To the same effect is the case of Cartwright v. Vawdry, 5 Ves. 530. Indeed, the point is too well settled, to admit of argument. Such, then, being the fixed legal import of the terms children, and grand children, parol evidence is not admissible to shew, that the testatrix meant to include an individual, who does not come within the description. Such evidence goes to alter the terms of the will, and not to explain an ambiguity as to its proper application.
      This'case is, however, tobe distinguished from those, in which, there wefeno persons legally answering the general description, contained in the will; and in which it "has been held, that evidence was admissible to shew, whom the testator intended by the description. In such cases there is, as I have already stated,- á latent ambiguity, and parol evidence is admissible to explain it. Such was the case of Lord Woodhouselee v. Dalrymple, 2 Merivale, 419, in which all the authorities are collected and "reviewed. The case "was this. ISir James Henry Craig, by his will, dated 7th May,T811, among other legacies to different persons, gave “ to the children of the late Charles Ker, who should be living at the time of his (the testator’s) decease, £3,000, to be equally divided among them.” It appeared, that Charles Ker had married in 1793, but had no children after his marriage, although he had five before, of whom three were living at the testator’s death; and it also appeared, that he had been lost at sea a short time after his marriage. The master disallowed the claim of the three surviving children, on •the ground of its appearing, that the marriage did not take place, until several years after the birth of the claimants; and the question came up before the Master of the Rolls; Sir William Grant, upon an exception to the master’s report. Sir William Grant said, “ It struck me, on a general recollection of the authorities, that this case differed from any, in which the Court had decided against the claim of illegitimate children; and upon a reference to the cases, I am confirmed in that opinion. In all of them, legitimate children were either actually in existence, or capable of coming into existence, at the time of matóng the will. Tn Cartwright». Vawdry, (supra,) the question was asked by Lord Rosslyn, how can I put upon the will the construction the plaintiff desires, when there are lawful children ? It is impossible, in a Court of justice, to hold, that an illegitimate child can take equally with lawful children, upon a devise to children. In Godfrey v. Davis, (supra,) Mr. Harwood was alive at the date of the will, and might have a legitimate child, as he afterward actually had. In Harris v. Stewart, (cited 1 Ves. & Bea. 434,) and Swaine a.Kennerley, (I Ves. & Bea. 469,) there were legitimate children in existence. Evenin Wilkinson v. Adam, (1 Ves. & Bea. 422,) and Beachcroft v. Beacheroft, (1 Mad. Rep. 433,) there was a probability of future legitimate children, though under the peculiar circumstances of those cases, the illegitimate children succeeded in establishing their claim. But here the death of the parent is noticed in the will itself. It was'therefore, atthe time of making the will, impossible that there should be any legitimate child in future.” 2 Merivale, 421, 422. - In another part of his opinion, he observes, that what persons answer the description in such a case, must necessarily be matter of extrinsic evidence. If .there had leen any legitimate children, they would have been understood to be the persons designated; but there being none, we are driven to the inquiry, whether there are any persons in existence, who had acquired the reputation of children. Those cases, which have laid down the rule most strictly, admit, that it is possible for illegitimate children to acquire the reputation of children; but all agree, that they can never take with legitimate children, under .the general description of children.
      
      On the whole, I am of opinion, that the plaintiff, under the circumstances of this case, could not take under the terms of the will; and that the parol evidence, to shew that it was the intention of the testatrix to include her, was inadmissible. The judgmentmusttherefore.be reversed, and the postea delivered to the defendant; and it is so ordered.
      JíoTT, J., and Johnson, J., concurred.
    
   Harper, J.

This Court concurs in the opinion of the Chancel, lor for the reasons given, and his decree is therefore affirmed.

Johnson, J., and O’NeaXiX., J., concurred.

Decree affirmed.  