
    [Philadelphia,
    February 1,1836.]
    M’KNIGHT against READ and Others.
    CASE STATED.
    A testator gaVe one-third of his estate, real and personal, to.his wife, one other third t<j his children, “ who may be living at the time of my death;” directing the interest to be paid to their guardians; and as to the remaining one-third, he directed that out of the principal of the one-third of his personal estate, which might remain, after “ the foregoing devises were satisfied,” his executors should pay certain pecuniary legacies, and if there should not be suifieient money from this source, that his real estate should be sold for the purpose : and as to certain annuities which he gave, he directed that they should be “ paid out of the rent of the third part of the real estate] thereby devised, or out of.the interest of the third part of the personal estate, thereby devised, which may remain after the payment of pecuniary legacies; or out of the interest of the proceeds of sale of the real estate.” In another part of the will, the testator appointed a guardian for his s'bn A., and a guardian for his daughter B. ' At the date of his will, and at the time of his death, he had two children, A. and B., and his wife was pregnant with a third child, who was born after his death. Held, 1. That the child in venire sa mere, was not to be considered as living, within the meaning of the will; and, consequently, that under the act of 1794, the will was revoked, so far as respected the share or proportion of such child, of the estate. 2. That he took one-third of two-thirds thereof, which was to be deducted, in the first place,from the whole amount ; that the remainder was tobe divided into three parts; of which the widow was to have one-third; the two children, A. and B., one third between them, and the collateral legatees', the remaining third. 3. That the collateral legacies were to abate in equal proportions.
    This was an action brought by Catharine M'Knight against Alexander Read and Frederick V. Krug, executors of the will of James Gray, deceased, to recover the arrears of an annuity bequeathed to the plaintiff by the said James Gray.
    A case was stated for the opinion of the court, and the following facts were agreed upon, to be considered in the nature of a special verdict.
    James Gray, of the City of Philadelphia, made his will, dated the 25th day of May, 1833, in the following terms:
    “ Be it remembered that I, James Gray, of the City of Philadelphia, merchant, do make and ordain this, my last will and testament] hereby revoking all other wills by me heretofore made.
    Item. I direct that all my just debts, and funeral expenses, bé fully paid and satisfied.
    Item. I.direct, that after my decease a just and true appraisement of all my estate, real and personal, be made, as soon as practicable, by two respectable men, to be appointed by my executors] hereinafter named, and delivered to.them to guide and regulate thfe disposition, hereinafter made.
    
      Item. I give and devise, to my beloved wife Ellen, for her sole and separate use, in fee simple, one full, equal, undivided third part of my estate, real and personal, subject to the power of sale hereinafter vested; and she is hereby permitted to make her selection of such articles of personal estate, at the appraised value, to the amount of one-third of the value of my personal estate, as she may choose ; and if she does not select to the amount of one-third, then my executors, hereinafter named, are required to pay her the balance of her third of my personal estate in money.
    Item. I give and devise, one other full, equal, and undivided third part of my estate, real and personal, to my beloved children, who may be living at the time of my death, in fee simple, as tenants in common, and if any of my children should be dead at the time of my decease, leaving lawful issue, then, I give and devise to such issue, as tenants in common, in fee simple, the share or shares which would have passed or gone to his, or her, or their parent of parents, if they had been living at the time of my death; and it is my desire and will, that the share or part of my personal estate, herein devised to my children,-shall be put out at interest, and managed by my executors, hereinafter named, to the best advantage, until my said children shall respectively attain to full age, or be married. The income and interest to be paid over to their guardians, hereinafter named; and as to the real estate hereby devised to my said children, the same is to be subject to the power of sale, hereinafter directed ; and the said income of the real estate, herein devised to my children, so long as it may remain unsold, shall be received by my executors, and paid over to the guardians, respectively, of my children, until they severally attain full age, or marriage; arid iri case my'said daughter shall marry, then I direct, that the portion of personal and real estaté devised to her, shall be held by her to her sole and separate use, without any control or interference of any husband she fhay hav'e.
    Item. As touching or concerning the other remaining one, full) equal, undivided third part of my estate, real and personal, I order and direct that out of the principal of the one-third of my personal estate, which may remain after the foregoing devises are satisfied, that my executors pay and discharge the several pecuniary legacies which I have given; and if there shall not be sufficient money arising from this source, that then my real estate may'be sold, to accomplish said object, as hereinafter directed. And as to the yearly sums or annuities which I am now about to give and devise; I direct, that the same be paid out of the rent of the third part of my real estate, hereby devised, or out of the interest moneys of the third part of my personal estate, hereby devised, which may remain after the payment of pecuniary legacies, or out of the interest of proceeds of sales of my real estate, which may be made, as hereinafter directed. In accordance with the foregoing regulations» I give and devise to my nephew, John Johnstone, the sum' of five hundred dollars, as soon as as he is regularly licensed to preach the gospel, to purchase a library for his use.
    Item. I give and devise to my beloved mother, the sum of three hundred dollars per annum, to be paid to her by my executors, half yearly, for and during the term of her natural life.
    Item. I give and devise to my sister, Catharine M’ Knight, the sum of two hundred dollars .per annum, to be paid to her by my executors, half yearly, during her natural life, if she shall so long remain unmarried.
    Item. I give and devise to my nephew, John Johnstone, the sum ,of three hundred dollars per annum ; to be paid to him half yearly, by my executors, for his support and education, until he shall be licensed to preach the gospel, and for one year thereafter, but no longer; and it is my desire, that his education be full and complete, as far as is practicable.
    ' Item. If the debts due to me from the estates of Joseph ThornJrerough, deceased, and his niece, Susan Mosher, deceased, be not paid off before my death, then I give and devise the interest which may become due from those debts, from the time -of my death, to be paid over, half yearly, by my executors, to my sister-in-law, Mrs. Isabella Sample, to pay for the education of her children, according to her judgment; and if her children severally attain to full age; then I give and devise the principal of said debts to said children, or those who may arrive at age, to be equally divided among them, share and share alike.
    Item. I direct my executors to place out at interest, on good security, at the best interest they can obtain, (but not exceeding legal interest,) the sum of two thousand dollars; and the interest thereof I direct them to receive and pay over, half yearly, for, and in discharge of, the education of my brother William’s children, so far as the same may be needed and adequate.
    Item. I direct, that the sum of one thousand dollars be put out at interest, in like manner as above stated, and the interest thereof to be paid over, half yearly, for,.and in the education of the children of my sister, Ann Johnstone, excepting her son, John Johnstone, whose education is hereinbefore provided for.
    Item. I give and devise to the corporation of the Dutch Reformed Church, in Crown Street, Philadelphia, the.interest I have in a pew in said church, and I direct that the same be sold by them, for the best price that can be obtained therefor, the proceeds to be paid to the treasurer, and .the amount thereof be expended by the deacons of said church, in instalments of twenty-five dollars per annum, until the whole sum is exhausted, in purchasing fuel for poor female members of that church, according to the discretion of the deacons.
    Item. As to all the rest, residue, and remainder of my estate, wheresoever and whatsoever, I give and devise one-third part thereof to my sister, Sidney Binnis, and her heirs ; and the remaining two-third parts, I give and devise to the children of my sisters, Ann Johnstone and Mary Roland, and my brother William, 'to be divided amongst them in equal parts, as tenants in common in fee.
    Item. I nominate and appoint my brother-in-law, Joseph Mosher, Esq., of Lancaster county, to be guardian of the person and estate of my daughter Isabella, and my friend, Frederick Y. Krug, of this city, to be guardian of the person and estate of my son James.
    Item. I constitute and appoint my brother-in-law, Alexander Read, and my friend, Frederick V. Krug, to be the executors of this, my last will and testament.
    And whereas, it may be necessary, in order to' raise money to pay legacies, or to make advantageous dispositions and investments, or to save the expense of partitions, in order to make easy and just distribution of my real estate, that a power be vested in my executors to make sale thereof. Now, I do hereby authorize and empower my said executors, and the survivor of them, to make sale of my real estate, according to their judgment and discretion, and as may seem to them best for the interest of my estate, and good and sufficient deeds therefor, to make and execute to the purchaser; and the proceeds of said sales to invest, on good security, in the public stocks, or ground rents, or bonds and mortgages, for the .same uses and purposes and persons as the real estate, so to be sold, appropriated, and devised, in this my last will and testament. And I direct that my executors have, and take the care and management of my real estate, so as to receive the rents, lease, and repair the same, and pay all taxes and other incumbrances, so long as ,the same remains unsold and undivided; the nett income thereof, .so received by them, to be divided and appropriated, half yearly, according to the terms and provisions of this my will.
    In witness whereof, the whole of the foregoing will being my ,own hand writing, I have hereunto set my hand and seal, this .twenty-fifth day of May, anno Domini, one thousand eight hundred and thirty-three.”
    The testator died on the 26th day of June, 1833, being then absent from home, on a journey to the western states. At the time of his death he left a widow and two children, Isabella and James, (who are still living,) and left his wife pregnant with a son, who was born in the month of October following, and named Alexander, and is still living.
    The defendants proved the will, and took out letters testamentary. The nett value of the real and personal estate of the testator, after payment of his debts, will be from 136,000 to 140,000.
    
      The questions submitted to the court, upon the foregoing facts, are:
    1. Whether, so far as regards his posthumous son, Alexander, the said James Gray died intestate ; or whether the said Alexander is included, and will take, under the devise by the testator, “ of one full, equal, and undivided third part of his estate, real and personal, to his beloved children who may. be living at the time of his death.”
    2. If the said James Gray died intestate, so far as regards his after born child, Alexander, then what share or proportion of his father’s real and personal estate the said Alexander is to take, and what shares and proportions are to be taken by the other two chil-f dren, Isabella and James.
    3. If the said James Gray died intestate, so far as regards his after born child, Alexander, and the court should be of opinion that the said Alexander is entitled to one-third of the real and personal estate of his father, subject to the interest (if intestate) of his mother therein, then whether the pecuniary legacies, and also the annuities, including the annuity bequeathed to the plaintiff, are to be paid in full, or abated pro rata.
    
    
      4. If the said James Gray died intestate, so far as regards his said after born child, Alexander, is the power of sale given by the will to the executors revoked, as to the part which the said Alexander will take.”
    Mr. F. W. Iiubbell, for the plaintiff
    The testator gives one-third of his estate to his children, who may be “ living at the time of his death.” I contend that the posthumous child is to be considered as living, at the time of the death of the testator; and, therefore, that he was “ provided for” within the meaning of the 23d section of the act of 17th April, 1794. The authorities show, that children “ living,” include such as may be “ in ventre sa mere.” Pemberton v. Parke, (5 Binn. 601.) Siuift v. Duffield, (5 Serg. ¿p R. 38.) The words of this will are exactly the same with those jn Pemberton v. Parke. The words, “ if any of my children should be dead at the time of my decease,” &c., must refer to more than two. As to the- rights of the annuitants, and other legatees, there are no words which will postpone them, as among themselves. 2 Williams on Executors, 837, 841. When the bequest is of a sum which is to supply an annual interest, it is an annuity. I contend that, as regards the real estate, there is no postponement of the annuitants to the pecuniary legatees. It is impossible now to say, what the intention of the testator was, except as it may be gathered from the will; and it would seem, from this, that he did not desire to leave his children a large proportion of his property. As to the power of salé, that seems to be settled by Coates v. Hughes, (3 Binn. 498.)
    
      Mr. James S. Smith, for the defendants.
    The rule, that a child in ventre sa mere is to be considered as living at the death of its parent, is an artificial one, introduced by the English courts, to prevent certain hardships which would otherwise ensue. Wilson v. Brush, (4 Johns. Ch. Rep. 506.) 4 Kent’s Com. 506. 2 Williams on Executors, 94. If it be for the benefit of the child that the contrary doctrine should prevail, he will be considered as not living. Watkyns on Descents, 142, Doe v. Clark, (2 Hen. Black. 394.) 1 Ves. sen. 86. Swinburne, pt. 4, s. 15. In Swift v. Duffeld, Judge Duncan stated the rule in the same way. The consequence of admitting this child to share in the one-third given by the testator to his children, will be to reduce them to about $4,000 each ; while the collateral relations will get about $17,000 among them. The will shows, that he did not look forward to the birth of this child. 1st. He provides that the interest upon the shares of his children shall be paid to their “ guardians, hereinafter named.” He after-wards names guardians for James and Isabella, but takes no notice of the unborn child. 2d. It was his obvious intent to protect the share of a female child. This is evident from the provision for the share of Isabella. ' Yet nothing is said respecting the unborn child ; whose sex was of course unknown. It is evident that Mr. Gray supposed himself to be richer than it turns out that he was. The words of the bequests to the collateral relations are rather remarkable. He gives but the principal of the third part of his estate, “ after the foregoing devises are satisfied.” This may be supposed to mean, after all contingencies. He knew that a large part of his estate consisted of outstanding debts. The case of Coates v. Hughes, decides that the birth of issue is not an absolute revocation, hut only so as to matters in which it may be beneficial to the wife or child to have it so considered. The word any, relied upon on the other side, has various meanings, and may be applied to one of two, as well as any other number. We agree that Coates v. Hughes rules this case, as to the power to sell.
    Mr. Hubbell, in reply.
    The general rule is, that the word living applies to infants in ventre sa mere; but if they be exposed to a penalty thereby, it will not be so construed. Every devise is supposed to be beneficial for the devisee. The legislature meant no more than that the posthumous child should receive a child’s share, such as the testator allotted to his children; not that he should receive what the testator intended for collaterals. If the will was revoked, as to all the children, by the birth of a child, then, if a father should give a shilling to a disobedient child, and after that should have another child, and die, the disobedient child would get a full share. There is no reason for doubting the intention of the testator to provide liberally for these collateral relations. One was his-mother, another his widowed sister.
   The opinion of the court was delivered by

Rogers, j.

The principal question raised by the case stated is, whether Alexander, who is the posthumous child of James Gray, is embraced in that clause of the will, in which the testator devises “ the one, full, equal, undivided third part of his estate, real and personal, to his beloved children, who may be living at the time of his death.”

It seems to be a settled rule of the English law, that there must be a concurrence of a subsequent marriage, and a subsequent child, to make a revocation of a will; and that the mere subsequent birth of children, unaccompanied by other circumstances, would not amount to a presumed revocation. This being a fixed rule of construction; or, at least, the better opinion being as above stated, the legislature of Pennsylvania, as early as the 4th of February, 1748, enacted, “ that when any person shall, at any time hereafter, make his last will and testament, and afterwards marry, or have a child, or children, not named in any such, will, and die, although such child, or children be born after the death of their father, every such person, so far as shall regard the wife after married, or the child or children after born, shall be deemed and considered to be intestate; and such wife, child, or children, shall be entitled to like purparts, shares and dividends, of the estate, real and personal, of the deceased, as if he had actually died without will.” This act has been altered and supplied by the act of the 19th of April, 1794. It is there enacted, “ that when any person, from and after the passage of the act, shall make his last will and testament, and afterwards marry and have a child, or children, not provided for in any such will, and die, leaving a widow and child, or either a widow or child, although such child or children be born after the death of their father, every such person, so far as shall regard the widow, or child, or children, shall be entitled to such purparts, shares, and dividends, of the estate, real and personal, of the deceased, as if he or she had actually died without any will.”

■ I have recited the two acts, in some measure with a view to a variance, which appears between them, which, whether essential or otherwise, may be, as may be hereafter determined. The acts vary in two particular’s. The act of 1748, speaks of children not named in the will; the act of 1794, of children not provided for in the will; the act of 1794, says, if he shall die, “ leaving a widow, or child, or either widow or child,” a clause not contained in the act of 1748. But whether these acts essentially differ from each other or not, yet it is certain they make a material.alteration in the common law, which requires both marriage and the birth of a child, or children, to effect an implied revocation of a will.

This, then, being the rule of the English law, which in many cases operated hardly on after born children, the court naturally strained the construction of phrases in a will, so as to include children in ventre sa mere; and here, it has been repeatedly held, that the words, “ living at the death of the testator,” although not the natural import of the term, will, without more, embrace the case of a posthumous child. The rule results from a principle, deduced from the equitable rule of the civil law, which declares, that infants, who are, as yet, in their mother’s womb, are considered as already brought into the world, whenever the question relates to any thing which may turn to their advantage. The rule is intended entirely for the benefit of the infant, and is'clearly stated by Swinburne, 562, pt. 4, s. 14. “ When the child,” (as is there said,) “ is in the mother’s icomb, at such time as the testator dieth, if we would in this case know, whether that man is to be judged to have died without issue, we must consider whether jt be for the benefit of the child, that the father should be accounted to have died without issue or not; for, howsoever the rule be; that he is not said to die without issue, whose wife is with child at his death ; yet that rule ought to take place, when it tendeth to the benefit of the child, not when it tendeth to the prejudice, of the child, or any benefit of another. Wherefore,” (says the writer;) “ if the testator make thee his executor, or give thee one hundred pounds; if he die without issue, after which will was made, he dieth, leaving his wife with child; in this case he is reported to die without issue; and so thou art admitted to the ex-ecutorship, and mayest receive thy legacy; unless it be moré beneficial to the child that his father should have been reputed to haye died without issue; for then thou are excluded.”

The principle as above stated, although not engrafted into the Common Law without jealousy, may now be taken as firmly established. The rule unquestionably is; that an infant in ventre sa mere, shall be considered, generally speaking, as born for all purposes; for his own benefit. Watk. Law of Descents, 142. Doe v. Clark, 2. H. Bl. 401. 1 Ves. 85, Miller v. Turner. 3 Br. C. Rep. 391, Hall v. Chapman. Smith v. Duffield, 5 Serg. & Rawle, 40, and a variety of other cases, which I am not permitted to cite.

The inquiry will then be, is it the interest .of Alexander to take under the will l and it is clear that it is not. By the act of 1794, before referred to, if the father be deemed and construed, to have died intestate so far as regards him, he will be entitled to oné-third of two-thirds of the' estate. Now the case stated, supposes the testator to have died worth about 36,000 dollars, we will say personal estate, for even if part were real, it will make no material difier'ence on the result. Of this sum, Alexander’s share will be $ 8,000, -if divided on the principles of the intestate laws; whereas, if he be construed to bed devisee under the will, he will be entitled to 4,000 dollars, merely. And, besides, this construction would not only be to his prejudice, but it would injure his brother and sister, who, in thé view we have taken of the case, will be entitled to $ 4,666, in* stead of $4,000.

A reason given in some of the cases; for including children, id ventre sa mere, in the words “'living at the death,” is from the presumed intention of the testator, arising from the moral obligation of a parent to provide for his offspring, a reason hardly applicable to a case liké the present, where the law has made so ample a provision, in favour of the posthumous child; It would seem, therefore, that the rule ought to be in this state, that an infant in ventre sd mere, shall not be taken to be etabra'ced, prima facie, within these words; and particularly when it works an injury to the'other children, unless it can be affirmatively shown, that it is for his benefit, br there may be other circumstances in the will, which clearly indicate such to be the intention of the testator. But be this as it may, yet the rule being adopted on a presumed intention of the testator, the presumption, like every other presumption; may be rebutted by other parts of the will, aided, as it may be, by the state of thé property; and the situation of the family. 5 Serg. & Rawle, 39. Swift v. Duffield.

It has been conjectured, and not without a show of reason, that the testator thought himself richer than he really was. From the devise to his collateral relatives, it would seem that -he supposed, himself worth about 60,000 dollars. This estimate of the value of his property, would leave each of his children born, 10,000 dollars; a sum, it may be, in his apprehension, amply sufficient for their education and commencement in life; but if he had had an idea that his' wife was then pregnant, it is thought he would not have made a will by which the provision for his children born, would be materially reduced. But there are other parts of the will which are entitled to” weight in arriving at the intention of the testator; which, after all, is the governing rule. Several circumstances have been relied on at the bar, which would seem to indicate that an after born child was not in the contemplation of the testator, at the time he made his will. I shall advert to but one, although the others seem to throw some light on the transaction. After the devise to his children, the testator proceeds; “ And it is my desire and will, that the share or part of my personal estate, herein devised to my children, shall be put out at interest, and managed by my executors hereinafter named, to the best advantage, until my said children shall attain to full age, or be married; the income and interest to be paid over to their guardians hereinafter named; and as to the real estate hereby devised, the same is to be subject to the power of sale hereinafter directed ; and the said income of the real estate herein devised to my children, so long as it shall remain unsold, shall be received by my executors, and paid over to the guardians, respectively, of my children, until they severally attain full age, or marriage.” In a subsequent part of the will, the testator says, “ Item, I constitute and apjpoint my brother-in-law, Joseph Mosher, Esq. of Lancaster county, to be guardian of the person and estate of my daughter Isabella,- and my friend, Frederick V. Krug, of this city, guardian of the person and estate, of my son, James.” This clause, would seem to be somewhat irreconcileable with the idea, that the testator was aware of the pregnancy of his wife, and intended, by the wmrds “ living at his death,” to include the child in venire sa mere,- for if that had been so, it- is probable he would have made a similar provision in reference to such an event. The conclusion would then be, that James and Isabella, for whom guardians are appointed, are children to whom the interest and income of the estate are to be paid. The words of the will are, “ the income of the real estate, herein devised to my children, so long as it remains unsold, is to be paid to these guardians,” that is, to the guardians of James and Isabella.

Supposing, then, that Alexander does not take under the will, the next question is, whether this works a total revocation of the will, or is a revocation of the will pro tanto. The legislature appears to have been very guarded, in the terms used in the acts of 1748, and 1794. The marriage or birth of a child, revokes a will, only so far as regards the widow, or child or children after born. These acts provide, that such child or children, shall be entitled to such purparts, shares, and dividends of the estate, real and personal, of the deceased, as if he or she had actually died without will. I cannot believe that if the legislature had intended that marriage or birth of a child should amount to a total revocation, they would have used this language. It was the persons only, who were not included in the will, that they intended to protect,- leaving the will, in all other respects, as it had been made by the testator. It is not to be disguised, that this will sometimes lead to difficult and perplexing questions,- and whether a total revocation would not have been a better provision may admit of doubt; but the legislature not having thought proper to do so, it is not for us, on a presumed inconvenience, to dispense with words which so clearly indicate their intention. And this would appear to be the opinion of this court, in Coates v. Hughes, 3 Bin. 498.

In that case, it was ruled, that a subsequent marriage and birth 'of a child, did not amount to a total revocation of a will. The appointment of an executor, with power to. sell, was held good, notwithstanding ; upon the principle that it amount to a revocation, pro tanto only.

The next inquiry will be, in what manner is Alexander’s share of the estate to be deducted. Alexander is entitled to one-half of two-thirds of the estate, as in case of intestacy, that is to say, taking the estate to be worth $36,000, the widow would be entitled to one-third, viz. $12,000, and the remaining two-thirds, viz. $24,000, must be divided by three, the number of children, which would make the share of Alexander $8,000. This $8,000, we are of opinion, should in the first place, be deducted from the whole amount of the estate; and the remainder, viz. $28,000, should be divided into three equal portions ; one-third to the widow, one-third to the two children, Isabella, and James, and the remaining third, to the collateral relatives named in the will- We conceive that the portion allotted by the act to Alexander, must like a debt, be first paid, and the residue only remains, to answer the exigencies of the will. We are sensible that this will sometimes interfere with the intention of the testator, but this is a consequence which cannot be avoided, without dispensing with what the legislature have thought of paramount importance ; to prevent the disinherison of after born children.

From the case stated, it will appear that there will be a deficiency of assets to pay the legacies contemplated in the third class. I see nothing in the will to prevent the operation of the rule, that the abatement must be in equal proportions. The general rule is, that among legatees, who are volunteers, in their nature general, there is no preference of payment; they shall all abate together, and proportionably, in case of a deficiency of assets, to pay them all.

Since the argument of the cause, it has been stated to us by the counsel, that it has been ascertained that the testator was aware of the pregnancy of his wife. This circumstance makes no alteration in the opinion of the court.

Judgment for the plaintiff.  