
    
      Savage and Others v. Mears and Wife.
    December, 1843,
    Richmond.
    (Absent Cabell, P„ and Stanakd, J.)
    Will — Pretermitted Child — Revocation -Case at Bar.— A testator having- six children, four the issue of a deceased wife, and two the issue of his present wile, devises to his two sons each a tract of land described by metes and bounds, directs that all his other lands shall be equally divided among his four daughters and their heirs, and then devises and bequeaths as follows: “My will Is that my negroes be apportioned equally amongst my six children, under the following regulation, to say, that the one third thereof which shall be allotted to my wife as her dower shall be the full part of the two children I had by her, and also that the several negroes l have from time to time furnished any of my children be their right, but that they shall be each appraised and accounted for in their part of the division of my slaves, Eastly. I desire that all the residue of my estate not before specifically given be equally divided amongst my aforesaid six children.” The will Is made the 31st of December 1792, and the testator dies in 1794, prior to the 28th of October; between which periods, to wit in November 1793, a third child of the testator by his second wife is born. Held, 1. According to the authority of Yerby v. Yerby, 3 Call 334, the birth of such third child was not a revocation of the will. 2. As the will was published, and the testator died, before the passage of the act of 1794 providing for pretermitted children, the case does not fall within the operation of that statute. 3. Upon the true construction of the will, the afterborn child has no claim to share in the division of the dower slaves after the death of the widow.
    Ralph Justice of Accomac county died in the year 1794, prior to the 28th of October, having- duly made and published his last will and testament, bearing date the 31st of December 1792, whereby, after giving to his wife some personal chattels in addition to the dower which the law entitled her to, and to his two sons each S71 *a tract of land described by metes and bounds, and directing that all his other lands should be equally divided among his four daughters and their heirs, he further devised and bequeathed as follows :
    “Fifthly. My will is that my negroes be apportioned equally amongst my six children, under the following regulation, to say, the one third thereof which shall be allotted to my wife as her dower shall be the full part of the two children I had by her, and also that the several negroes X have from time to time furnished any of my children be their right, but that they shall be each appraised and accounted for in their part of the division of my slaves.
    “Lastly. I desire that all the residue of my estate not before specifically given be equally divided amongst my aforesaid six children.”
    Four of the testator’s children were the issue of a former marriage. At the time of making his will, he had only two children by his second wife, namely, James and Elizabeth: but afterwards, and in the lifetime of the testator, to wit in November 1793, a third child, Catharine by name, was born.
    The will was proved and recorded in Ac-comac county court on the 28th of October 1794. The widow of the testator died in the year 1833; whereupon James Justice and John Savage (who had intermarried with Elizabeth Justice) took possession of the whole of the dower slaves, about 30 in number, and divided them between themselves, in exclusion of Catharine, who was now married to Thomas Mears.
    In February 1834, Mears and wife exhibited a bill in the circuit superior court of Accomac against James Justice and John Savage and wife, setting forth the will of the testator, and the facts above stated; charging that the defendants had refused to allow the plaintiffs any share of the dower slaves; and praying that one third of the said slaves, and of their hires and 572 profits *since the death of the widow, might be decreed to the plaintiffs.
    The defendants answered, admitting all the facts set forth in the bill, but nevertheless insisting that the plaintiffs had no-manner of interest in or title to the said slaves, because the law by which a child under circumstances similar to those of the female plaintiff would now be entitled to a share of his or her father’s estate, was not enacted till the 5th of December 1794, some time, after the death of Ralph Justice the testator, and had no application to cases, existing before its passage.
    The court directed an account, shewing the number, ages, names and respective .values of the dower slaves which had come to the possession of the defendants, and the amount for which the said slaves would reasonably have hired since the death of the widow. This account being taken, the court decreed that the plaintiffs recover against the defendants 76 dollars 17 cents, being one third of the net hires for the year 1834; and appointed special commissioners to divide the slaves into three equal parts, and to assign one of those parts by name to the plaintiffs. Such division and assignment being accordingly made and reported by the commissioners, the court, on the 9th of April 1835, pronounced a decree, that the plaintiffs hold the slaves so assigned them, and that the division made by the said commissioners be forever held firm and stable between the parties.
    On the petition of the defendants, an appeal was allowed.
    Lyons for appellants.
    The female plaintiff had no right at all under the statute of December 5, 1794, 1 Old Rev. Code p. 319, 20, ch. 170, (j 1, for that statute was passed subsequent to the execution of the will and to the death of the testator. And the statute of December 13, 1792, 1 Old 573 Rev. Code p. 160, 61, ch,-92, *§ 3, providing for children born after the execution of a will made when the testator was childless, and for posthumous children, has no application to this case. In Yerby v. Yerby, 3 Call 334, it was decided that prior to the statute of 1794, even a second marriage and the birth of children would be no revocation of a will disposing of the testator’s estate among the issue' of his first marriage. As to the circumstances which amount to an implied revocation of a will, see the case of Wilcox v. Rootes & others, 1 Wash. 140, and 1 Williams on Ex’ors 96.
    G. N. Johnson for appellees.
    This case turns mainly on the proper construction, of the will.
    A will, in respect to the personal estate of the testator, speaks at the time of his. death; and particularly where the question is as to the persons who are to take, and those persons are children. Thus where a legacy of 50 pounds each was given “to the children that Joseph Ringrose hath,” all the children living at the death of the testator were held entitled. Ringrose v. Bramham, 2 Cox’s C. R. 384. And numerous cases are to be found deciding that the children born after the death of the testator are to be excluded under the terms of such a provision. In Matchwick v. Cock, 3 Ves. 609, a case decided by the court of king's bench is stated, in which that court is said to have gone very far in construing the intention of the testator to embrace children born after the making of the will and before his death, even where the terms of the will w.ould seem almost necessarily to exclude them: so far, that the vicechan-cellor seems to have considered it an extreme case. To these may be added the case of Viner v. Francis, 2 Bro. C. C. 658; 2 Cox’s C. R. 190.
    Here the slaves to be allotted to the wife for her distributive share are given to the two children the testator had by her. If the will speaks at the death of the 574 ^testator, he had at that time three children ; and there is obviously no intention to disinherit any child of his second wife. Which two of the children shall be selected as the legatees?
    The main purpose of the testator was to give to the children of his then wife the remainder of the slaves given to her for life: the reference to them as his two children was merely used as an incidental description of them as they existed at that time, without any purpose to restrict his bounty to - those two, in case there should afterwards be an increase of the number. He was evidently making provision for his children in classes; for those of the first marriage in one class, and for those of the second in another. If the use of the word two be held an inaccuracy merely, — a mistake of description, inadvertently employed as correct at the time and embracing then the whole class of beneficiaries, without attention on the part of the testator to the circumstance that it might at a future day be inapplicable to the beneficiaries as a class, the court will, in order to effectuate the general intent, reject that part of the description which is inaccurate, and thus correct the mistake. Bradwin v. Harpur, Ambl. 374, and Smith v. Campbell, 19 Ves. 400, are strong cases of this sort. If the testator, after the birth of the third child, had been asked whether he had provided for the children of his second wife by his will, there can be scarcely a doubt that he would have answered in the affirmative. [Brooke, J. There can be little doubt he would have said that his intention was to provide for them all by his will: but in a case before lord Mansfield, cited by me in Boisseaus v. Aldridges, 5 Leigh 239, it was said of the testator, quod voluit non dixit; and the question is whether that remark is not applicable here.]
    If the court should differ with me on this point, I refer to our statutory provisions on the subject, as shewing the legislative intent that no child of a decedent, 575 *born after the making of his will, should in any case be disinherited, if merely pretermitted and unnoticed by the will. Judging of the legislative intent by the reason and spirit of the enactment in the 3d section of the act of 1785, (1 R. C. of 1819, p. 376, ch. 104, g 3,) and by the construction of that intent given in the subsequent act of 1794, and not merely by the precise SGOpe of the words employed, the case of an afterborn child, situated like the female plaintiff here, was fairly and properly embraced. In Yerby v. Yerby, the will had given the whole property to the children of the first marriage, without any reference at all to a second marriage, the testator being married to his second wife after the execution of the will. Here there is a provision for children of the second marriage.
    C. Johnson on the same side.
    Our statutes have proceeded step by step in making provision for children pretermitted by the will of the father. These successive amendments shew the spirit by which the legislature was actuated in relation to this subject. And we invoke tbat spirit as the appropriate one in which to consider the main question in this case — that of the construction of the clause by which the testator has expressed his intentions concerning the issue of his second marriage.
    In Sherer v. Bishop, 4 Bro. C. C. 55, 60, (which will doubtless be relied upon on the other side) the testator bequeathed legacies to the six children of John and Mary Sherer, and it was held that an afterborn child of those parties was excluded. There the testator was providing, not for his own children, but for those of other persons; he was fulfilling no natural duty, but exercising his legal and natural right to dispose at his own pleasure of that which was his; and in doing so, he selected as the objects of his bounty the children who were then in existence, and with whom he was 576 *already acquainted, not contemplating other issue of the same parties, in excluding which he would be chargeable with no dereliction of natural duty. But where the provision is made by a father for his children, every presumption militates against the conclusion that he designed his bounty to be confined to those existing at the date of the will, in exclusion of others who might subsequently come into existence, occupying the same relation to himself with the former, and equally calling upon his natural duty to provide for them. And it is a principle established by many cases in the english courts, that the will is to be construed in every way it can, for the purpose of embracing the afterborn children, and acquitting the testator of a violation of his natural duty to provide for his own offspring, each and all, when no reason exists or can be imagined for any discrimination among them. This is strongly shewn in the cases already cited on behalf of the appellees.
    Stanard in reply.
    The question mainly argued on the other side is in substance this — Whether Ralph Justice shall be permitted to make a will for himself, or the court will undertake to make one for him?
    Though the court must construe the will according to the intention of the testator, yet where the words are plain, they must be taken as the sole evidence and explanation of his intention. Now is there, upon the face of this will, any ground whatever to support the construction contended, for on the other side — namely, that the testator’s intent was to provide for his children in classes? The testator’s clear intent was to provide for all his six children equally, by dividing his slaves equally among them. [C. Johnson. He charged the whole dower interest of the wife upon the third of the slaves which are given to her children. He could not therefore mean to place the six children on an equality in the division 577 *of the slaves.] The main and obvious intent still was to make the shares equal, merely postponing the enjoyment of the shares given to the two children of the second marriage, until their mother’s death. By bringing in the third child to share with the two elder, the effect of the construction contended for would be to increase the inequality already created by the charge of the wife’s dower interest.
    In Viner v. Francis, 2 Bro. C. C. 6S8, 2 Cox’s C. R. 190, (cited for the appellants) the opinion of the master of the rolls was, that if the testator had bequeathed to the three children of his late sister, instead of bequeathing to the children of his late sister (as he actually did) the death of one of the three would have caused a lapse of his interest in the legacy, because the children would in such case have been person® designate. The case supposed by the judge is our case; and his opinion on it is an authority directly in our favour. And in Matcbwick v. Cock, 3 Ves. 609, the master of the rolls expressed the opinion, that if the testator has given his property to the children then in existence, forgetting and omitting those which might afterwards come into being, the court, however much disposed to do so, cannot supply the omission. If we had made the most diligent search for a judicial opinion expressly in our favour, we could have found none more so than the opinion in this case. And see 1 Roper on Legacies 46, where the principle on this subject is stated in accordance with that opinion.
    The child claiming here is not a posthumous child; if the testator wished and intended to provide for her, it was completely in his power to do so by an alteration of his will. Having failed to do that, how can the court undertake to say that he meant to provide for her, or supposed he had already done so; or even that he had not good reasons for omitting all provision for her? The will was made on the 578 last day of 1792, and this *child was born in 1793. ■ The testator was bound to know the provisions of his will, and it cannot be supposed that he had forgotten them, when the execution of the will took place so recently before.
    The case of Sherer v. Bishop has been referred to by mr. Johnson, and he admits that the only distinction between that case and ours is, that the testator there was not providing for his own children; if the legatees had been his own children, it is conceded that the case ' would in every particular have been full and direct authority in our favour. As to Smith v. Campbell, 19 Ves. 400, it appears from the abstract of that case given by Roper, (1 Roper on Legacies 135,) that sir William Grant founded his opinion expressly on the ground that the testator, in using the terms “my next of kin in Ireland,’’ did not employ the last two words as descriptive of the persons who were to take, but merely as a reference to the place in which he supposed his next of kin to reside. The case is no example of rejecting part of a description.
    It is contended for the appellants, on the authority of Ringrose v. Bramham, 2 Cox’s C. R. 384, that the words “the two children I had by my present wife” are to be regarded as spoken at the testator’s death, at which time he had three children, and so, unless all the three are embraced by the bequest, there will be an ambiguity as to which two of them are to take, and therefore the provision will be void for uncertainty. This is an extraordinary proposition — -that a will, perfectly unambiguous at the time of its execution, may be made ambiguous by extrinsic circumstances occurring between that period and the testator’s death. The principle that a will is to be considered as speaking at the death of the testator has reference merely to the subject, — the property on which the will is to operate; and even in that sense, its application is confined to after acquired personalty. The only mode 579 in which a will can be *made to speak at the death of the testator, to any other purpose, is by a republication; and this whether it be a devise of land or a testament of chattels. Wind v. Jekyl, 1 P. Wms. 575; 1 Lomax on Ex’ors 65, and cases there cited.
    The case of Ringrose v. Bramham, so far from being an authority to support the general proposition that a will is to be considered as speaking at the testator’s death, distinctly shews that the master of the rolls recognized no such principle. He resorted to construction for the purpose of letting in the afterborn children; but if the will spoke at the death of the testator, there could have been no necessity for reasoning or construction, since the words used to designate the legatees, if regarded as spoken at the death of the testator, would necessarily include all the children of J. Ringrose living at that time. The construction employed in that case, which made the words “every child that J. Ring-rose hath” equivalent to “every child that J. Ringrose shall have at the time when the legacies shall vest,” was not only far less violent than that which is contended for here, but was countenanced by the testator’s own use of the present tense in another clause, where the word come was evidently employed and necessarily to be construed in the sense of shall come.
    As to the cases in which a legacy is given to a class of persons, (children, for example) the princip'e on which they rest is clearly stated in 1 Roper on Legacies p. 48. Those cases stand upon distinct ground, and have no application to this.
    It is impossible to conceive a case more exactly falling within the scope and terms of the act of 1794, than the case here. Yet if the argument urged on the other side as to the construction of the will be sound, the female plaintiff could not have claimed under that statute as a pretermitted child, though the statute had been enacted before the death of her father and be-580 fore the execution *of his will. She could not claim both under the will and against it, — both as provided for by the will, and as pretermitted. Suppose, in that case, she had brought her suit under the statute, claiming as a child of this testator born after the execution of the will, and pretermitted by it; and that her claim had been resisted on the ground of the construction here contended for: with what temper would the court have listened to the argument which is now urged?
    The case of Yerby v. Yerby is a full and direct answer to all the considerations urged for regarding this case as embraced by the spirit or equity of the statute of 1785.
    It was also objected for the appellants, that the decree was wrong in the manner of making provision for the plaintiffs. But it is unnecessary to report the argument on that point.
    
      
      He had been counsel for the appellants.
    
   ALLEN, J.,

delivered the opinion of the

court as follows:

The court is of opinion, that according to the authority of Yerby v. Yerby, 3 Call 334, the subsequent birth of the child in this case was not a revocation of the will, and as the will was published, and the testator died, before the passage of the act of 1794 providing for the case of preter-mitted children, this case does not fall within the operation of that statute. The court is further of opinion, that upon the true construction of the will there is nothing from which an intention can be gathered to provide for the children in classes. That the general intent of the testator was to give to each of his six children then living an equal proportion of the slaves, but that the time for enjoyment was postponed, as to the two children by the second wife, by giving them the third which should be allotted to the wife as her dower. That in this case the children in “'existence at the date of the will precisely answered the description given, as to number and the mode in which the property was to be distributed amongst them, and that the expression of the will is equivalent to a description of the six children by name. That if the testator had survived the passage of the act of 1794, and died without altering his will, the pretermitted child would have had a clear right to call upon all of the devisees and legatees to contribute, and it would not have been in the power of the four children by the first marriage to repel such claim, upon the ground now set up, that the will had made provision for her; and the fact of the testator’s dying before the said act was passed cannot change the construction of the will. The court is therefore of opinion that the decree is erroneous, and that the circuit court, instead of making such decree, ought to have dismissed the bill with costs.

Decree reversed and bill dismissed.  