
    Doe on demise of John Stephenson v. Jacocks.
    From Perquimons.
    A, by his yill, devised to his son W. certain lands, reserving' to his wife a life estate in part thereof, and declared it to be his will, in case the child with which his wife was then pregnant should be a male, that after her death, the portion in which she had a life estate should descend to such child : and in the event of the death of his *on W, or the death of the child with which his wife was pregnant, if a male, that the survivor should have the whole, if either died without lawful issue if both died without issue, then that J. S. a nephew, should have a portion of the land. The wife was delivered of a daughter, and it was held that J. S. took nothing, for a precedent estate becomes a precedent condition, or otherwise to an ulterior limitation, according to the intent, and as no son was born, the contingency upon which the testator designed his nephew to take, never happened. The language of the will made the birth of a son a condition precedent, and there was no evidence of intent to dispense with the performance of the condition.
    
      Ejectment. The following special verdict presents the facts of the case. Thomas Stephenson being seised and possessed of the premises in dispute, by his last testamént duly executed to pass lands, dated the 21s^^ February 1800, devised as follows, viz. <eX give and be-qUeaj.jj un(0 my son William Stephenson, the land ano plantation whereon I now live, called Stephenson’s poin' containing four hundred acres, more or less, reserve-the part lent to my wife during her natural life ; als< give unto my son William the land I bought from executors of William Humphreys, deceased, also fifty - three acres of land on the west side of Deep creek, reserving and excepting nevertheless, and it is the true intent and meaning of this my last will and testament, that in case the child which my wife Elizabeth is now pregnant,with should be a male, my will and desire is, that the part of my land and plantation which is lent to my wife during her life as aforesaid, should descend at the death of my wife to the said child she is now pregnant with in case it should be a male, to him and his heirs forever. Further, it is my will and desire that in case of the death of my son William, or the death of the child which my wife is now pregnant with, if a male, my will and desire is, that the survivor shall have the whole of the estate mentioned herein to them both, if either should die without lawful issue. But in case of the death of them both without lawful issue, then it is my will and desire that John Stephenson, son of Hugh Stephenson, should have that part of my land which was my mother’s dower$ and my will is, that the other part of my said land should be rented out annually for the benefit of my daughter Polly Stephenson, during her natural life •, and in case she my said daughter Polly should have lawful issue, my will is that such lawful issue should have and enjoy the said land forever; but in case my said daughter Polly should die without lawful issue, then my will is, that the said land shall be rented out annually, and the money arising therefrom to be equally divided among the sons of my sister Parthenia Wyatt, viz. William;, John, Thomas, Ambrose, and Worley, and their heirs forever.” The said Thomas Stephenson died in the year 1801, without having altered or revoked the said will, ’' which lias been duly proved and recorded ; that William Stephenson, the first devisee above mentioned, died in the'year 1806, intestate and without issue 3 that Polly Stephenson died in the year 1809, without issue 3 that the child with which the testator’s wife was pregnant at the time of making the said will, was afterwards born a female, and is the wife of Jacocks, the Defendant 3 that the Defendant’s wife is now the sole heir at law of Thomas Stephenson, the testator, and also of William Stephenson, the devisee 3 that John Stephenson, the devisee mentioned in the will, is the lessor of the Plaintiff 5 that the premises claimed by him in this suit, are the same devised to him in the above will, being a part of those devised to William in the first recited clause, and that the Defendant is in possession of the .premises.
    On this finding, judgment was rendered below for the Defendant, and the Plaintiff appealed.
    
      Muffin for the Plaintiff.
    -The limitation to the lessor of the Plaintiff is good.
    This is an executory devise, and is limited upon an. event not too remote. 1st. It is an executory devise— The estates to William and the unborn child are in fee— The act of Assembly dispenses with words of limitation in the^first devise to William 3 and that to the infant is expressly to him and his heirs forever — It became eo in-stanii a fee. Suppose William had died before the issue was born, if a contingent remainder, it was gone, because the subsequent limitation would vest in possession. 2d. The limitation is not too remote 3 “ but in case of the death of them both without lawful issue," means issue living at the time of their death — (Cro. Jac. 590.) If so, such a devise is good. In England, this devise would ‘.'reate an estate tail, and it would be held that the limitation over is after an indefinite failure of issue: the: reason the. benefit of the issue, to let them in after the father’s death. But our courts should construe it as a t|evjsp a £erm wou[(j he construed in England j for they stand on the same reason. A term cannot be entailed tiiere, a freehold cannot be entailed here; there the issue as such cannot take in succession, nor can heirs of the body here. And in England the devise of terms after a dying without issue is held to mean, issue living at the death of the first taker — Target v. Gaunt, (1 JP. Wms. 432) — Forth( v. Chapman, (Idem 663) — Jones v. Spaight, (1 Law Rep. 544.)
    But in this will it is clear that the testator meant to confine the failure of issue to the death of llis sons.
    1st. Because in the cross remainders between themselves, his words are, “ if either die without issue, then the survivor shall have the whole.
    
    2d. He limits an estate 'for life to his daughter Polly ,* and the limitation to the lessors of the Plaintiff is on the same event.
    
    If it be objected that one of the lives is that of a child unborn at the death of testator, and therefore the limitation' thereon is too remote, we answer that a child in ventre sa mere, is in rerum natura to all intents — Wallis v. Hadson, (2 Aik. 117) — Roe v. Clarke, (2II. Bl. 399)— Long v. Blockale, (7 T. Rep. 100) — Duller, J. in Thelus-son v. Woodford, (4 Yes. jr. 227) S. C. (6 Cruise Big. 530.)
    As to the words “in case both should die, &c. then oyer, &c.” they do not make a condition precedent, but a limitation ; and it is the same whether the preceding estate never took effect, (no child, or no such child being born) or whether it did take effect, and hath determined, (that is, a male child was born and died without leaving issue) — Jones v. Westcombe, (1 Finch’s Ch. Rep. 316)— Andrews v. Fulham, (Strange 1193) — Gulliver v. Wrick-et, (1 Wils. 1,06) — Strathun y- Bell, (Cowp. 40.) The 
      birth and sex of another child was only a condition to the estate devised to that child, and does not affect the u . ..... „ ulterior limitations; for .it is a general rule that in all cases of remainders or conditional limitations over, whe-thcr by way of particular estate, so a# to leave a proper remainder, or to defeat, an absolute fee before limited, by a conditional limitation, if the precedent limitation be by any means soever out of the case, the subsequent limitation shall take effect — (Fearne 163, 400 — Doug. 505, note to Doe v. Fonneran.') And Lord Harwicke said that he knew no case to the contrary — Jlvelyn v. Ward, (1 Ves. 420.) If, then, this be a remainder, it is still the same thing. “ Then,” “■when,” are adverbs of time, shewing the period at which the limitation takes effect, and not conditions — Boras toil’s Case, (3 Rep. 19)— Taylor v. Taylor, (1 Mk. 386.)
    It could not be the intention of the testator that John Stephenson should have the estate if a child was born and died, and that he should not have it if none was born ; for
    1st. The sex seems to be in the anxious contemplation of the testator, and he repeats the phrase “ if a male” several times.
    2d. He gives the whole to William, to go over, unless a male, and upon the death of both sms, lie provides for his daughter Polly, who was then living, only for life, out of the rents of a part of the land, and limits the remainder thereof to her issue, remainder to the sons of his sister Wyatt by name i so that it appears to have been his purpose to prefer his nephew of his own name, and before his daughter Folly ,* and why not before an unborn daughter ? He seems to favor the males throughout.
    3d. It is equally clear that he did not intend the whole to go to William absolutely, and not go over, unless another son should be born, because that would be making the birth of a second daughter disinherit the first daughter, and leave both unprovided for. It is obvious that he intended the estate should go over at all events, whenever tbe preceding estate to the son or sons (if two) should fail.
    The will, therefore, should be read, “ if the child, of which my wife is’pregnant, be a male, I give to him, &c. j but if no child be born, or if born, it be & female, or being a male, die without issue living at his death, then I give, &c.”
    
      Gaston for the Defendant.
    I. The devise to William Stephenson was absolute and indefeasible, except on one contingency which has never happened, the birth of another son. There is no ambiguity in the devise to William ; it is a devise of all, with a life estate in part to his wife, and a declaration that if he should have another son, this part on the death of the wife should go to that son. Under this clause, he takes a fee simple, defeasible on that condition only. The clause relative to William’s death is connected with the same contingency, “ if the child be a male.” To annex any other modification to William’s estate, when such a contingency has not happened, is to counteract the plain language of the will.
    There is no reason to conjecture that in this case, the modification of the devise to William by the contingency of the birth of a female child, would have been agreeable to the testator. lie wishes in case of two sons and one daughter, and the two sons dying without issue, this only daughter to have half the land, and a nephew the other half; but suppose one son and two daughters, as was the fact, and the one ¡son dying without issue, did he wish one daughter to take half and the other none ? The nephew, in case there was but one daughter to provide for, might take a child’s share •, but if there were two, was one to be disinherited to make room for him ? Courts will not strain after a meaning not expressed, to' disinherit the testator’s child — (Fcarne 420, 425, 454.)
    The supposition of the intent is repelled by the consideration, that he had distinctly before him, and made provision, with respect to the personal property, for the contingency of such child being a female — <e to go to such child whether male or female,” and then limiting the real estate distinctly upon the other contingency, “ if a male.”
    The claim of the Plaintiff is equally unwarranted by the words of the testator, and by any intent which we. can fairly presume him to have entertained. The cases relied on by the Plaintiff to establish his rule of construction, o.nly shew this principle, that where devises follow each other, and one is affected by a contingency restricted to itself alone, the ulterior devise, whether remainder or executory limitation, shall take effect when the former fails, in the same manner as though it had not failed, but been determined by the contingency' — (See 1 Fearne 355, et seq. 363-3-4 — 2 Ibid. 400, ct seq.') In the cases quoted, the failure of the preceding estate of the first limitation, being tantamount to its regular determination, the subsequent limitation takes place. But here the first limitation takes effect, is not determined, has not failed. In them the contingency was to terminate the preceding estate, and it was removed without it; but in this case the contingency is to terminate the first and raise the ulterior estate, and the contingency never happens— Miller v. Fame, (1 Ves. 85) — Holmes v. Cradock, (3 Ves. jr. 320) — Doe v. Shipperd, (Dovg. 79) — Doe v. Brabant, (3 Bro. 393) — Sheffield v. Orrery, (3 Aik. 283.)
    IJ. The limitation under which Plaintiff claims is too remote to be supported as an executory devise. There are no distinct expressions to tie up the meaning of the words ‘4 dying without issue and though it be admitted that by the decision in Jones v. Heirs of Spaight, it is settled, that since the act of 17'84 abolishing estates tail, the same construction shall be put on devises of real as on bequests of personal property j it is yet the settled law' in such bequests, that if the words of bequest would have given an estate tail in lands, they carry an absolute estate to the legatee, unless there be found in the will some distinct expression to tie up the legal meaning 0£ wor(JSl
    But in restriction of the legal import of the words used j)Crej y- js said that the first words, “ if either die without issue, the survivor to have the whole,” shew, that by issue is here meant, issue living at the death of one in the life-time of the other. The authorities will not support this position — (Butler’s Fearne 358 — 2 Roper 297.) See Sutton and wife v. Wood, (Conf. Rep. 202.) But because the word survivor here used qualifies the preceding words “ die without issue,” it does not follow that these words used in a subsequent devise lose their proper meaning when there is nothing to restrict them — (1 Ves. jr. 286 — 9 East 272..) Besides, the whole argument of the Plaintiff is founded on the assumption, that as a second male child was not born, all the provisions of the will having reference to such an event may he thrown aside out of view $ yet these provisions are now to be viewed in order to óhange the meaning of subsequent ones. But it is alleged that there is a limitation over of a life estate as to part, and this shews that the event was of course not to happen in the life of the devisee. If there were uo other limitations over than that for life, there would be apparent reason in this argument. The testator could not have contemplated this ulterior estate taking effect other than in the life of the devisee, then this duration of the ulterior estate would restrict the preceding general words ; but when a life estate is given •as to part only, and a fee simple as to another part, and fees are given in remainder after the termination of the life estate, the general words remain perfectly unrestricted, at all events when the enquiry is as to the vesting of estates other than the life estate. The limitation hero can be supported only on the supposition that the testator has said that John Stephenson’s estate shall depend on the contingency of his son’s dying without issue, living his daughter. Has he said so, is here the enquiry. There is an absurdity in making John’s right to enjoy depeiM on Folly’s being alive. If she is dead the nephew shall not take, and her children shall not take if their mother die before her brothers ! •
    But such an inference is not raised, for the devise to Folly is not for life. A devise of the profits of the land for life or for ever is a devise of the land — (Com. Big. u Devise JVt 1.” — l Ves. 171 — 2 Sulk. 679' — Cro. Jac. 104) — and the rule in Shelley’s case unites the two limitations in the first taker, and makes it a fee.
    To support Plaintiff’s construction, it will be necessary to insert an entirely new limitation, “ or in case the child with which my wife is pregnant should not be born, or should be a female, and my said son should die without lawful issue,” &c. Such* a limitation cannot be supplied, for Courts cannot add to a will, nor supply its omissions on conjectures, although founded on the highest probability — (3 Burr. 1634 — 2 Eq. Ca. M. 361 — 12 Mod. 128 — Doug. 75 — 4 Term Rej). 706 — 2 Fcarne 412.)
   Tayzor, Chief-Justice.

The substance of Thomas Stephenson’s will is a devise to his son William in fee, a devise to his wife for life, of part of the land, and taking notice that his wife is ensient, a devise of that part to the child, if it should be a son, with cross remainders to him and William. In the event of the death of both without issue, he devises part to his nephew John Stephenson, in fee, and part to his daughter Polly. William the son, and Polly the daughter, are both dead, without issue. The testator’s wife was pregnantbut instead of a son, she was delivered of a daughter, who is the only remaining child of the testator, and is heir at law to William and Polly. This ejectment is brought by the nephew John, against the posthumous daughter? and the question is, whether the limitation over to John can take effect, inasmuch as the contingency, viz. the birth and subsequent death of a son, upon whicli it was made,- never happened. The effect of a construction oí' Hie will according to its words, and,'as I think, the apParen* intent, will give to the testator’s only child the land in controversy. An opposite construction will, ac-cor(]ing all appearance, disinherit this child in favor of a nephew — a child for whom it was impossible the testator could cherish other feelings, than those of parental tenderness, and the purity of whose, lineage he asserts, by the provision made for the eventual birth of a son.

It is not within the range of probability that a man, knowing his wife to be pregnant, should deliberately make an ample provision for the child, if a son, and intend at the same time, that it should be wholly unprovided for, if a daughter ; but it is probable that he omitted to provide for a daughter, only because such an event did not present itself to his contemplation, and that his mind was diverted from it by arranging the limitations over in the event of the birth of one son, and the death of both without issue.

The testator, when he made his will, had a son and a daughter to provide for; and confining his views exclusively to the chance of having another son, he prefers the interest of these two to that of his daughter Polly; but if both his sons should die without issue, he, under the supposition that he should then have but one daughter, which must have been so, unless his wife had twins, calls in his nephew John to share the land with her. In such a state of things, he might probably think there was enough for both. But had he foreseen that, instead of two' sons and a daughter, he would have a son and two daughters, it may he conjectured, that though he might postpone them to William, he would, at least, have placed them on an equality with each other. It has been argued, on the part of the nephew, that where a devise is made after a preceding executory limitation, or is limited to take effect on a condition annexed to any preceding.estate; if that preceding limitation never should arise or take effect, the remainder over will nevertheless take place, the first estate being considered only as a preceding limitation, and not as a preceding condition to give effect to the subsequent limitations.

That words of condition have been construed as limitations instead of contingencies, a}|j)eaifrfrQm many cases cited for the Plaintiff, and from ripneniore distinctly than Jones v. Westcombe, in Eq. Ca. Ab. and Strathan v. Bell, in Cowp. Rep.; the first of which is a leading case, which has been cited in almost every subsequent one. In that case, the intention could not be doubted, that, failing the child, the estate should go over to the devisees, in all event§. They were the next objects of the testator’s bounty, and there were no children to.be provided for. In. the other case, the testator had a wife and a daughter, and he devised to a son, of which he supposed his wife to be ensient at the time of making his will, when he should attain his age of twenty-one years; but if a daughter, then one moiety of his estate to his wife, and the other moiety to his two daughters.'(there being one alive at the time) when they should attain their ages of twenty-one, with survivorship as between the daughters ; if both die before twenty-one, their moiety to go to the wife, and her heirs forever; if she died, her share to go to them. The wife proved not to have been ensient,* the testator died, and so did the daughter, without issue and under age. It was held that the wife should take the whole estate.

In the last case there were no children, and the words were construed as a limitation to carry the estate to the wife, rather than as a condition, which would perhaps have given it to a distant heir at law. The construction was evidently made to support the intent; and although I will not say that words havé in every case been construed as a limitation or condition for the sake of supporting the intent, yet in the only cases I can find, where children have been born after making the will, who were not provided for, or probably thought of, when the will made, such a construction has been made of the • 7 words, either to construe them as limitations or prece-(.c,nt con(]¡tions, as would most effectually guard the interest of the after-born children.

The case of White v. Barber is a very strong instance, to shew how far a Court will go.towards effectuating the intention, even by supplying words for that purpose. There the devise was to such child or children as the testator’s wife should1 happen to be. ensient with, at the time of his death. The testator had only one son at the time of making the will; two were born after the will was made and before his death, but his wife was not en-sient at the time of his decease; yet the Court held that it was manifestly the intention of the testator, to comprehend all the children which should be born of his then wife, whether before or after his decease; the Court thinking, that a father,- in making an express provision for any children his wife should be ensient with at the time of his decease, could never intend to give his estate to such children in exclusion of, or to his nephew (as the event has happened) in preference to, any child or children that might be born in his life-time — (5 Burr. 27OS.) In another case, words have been construed as a condition precedent, rather than a term should go to a devi-see, a grandson, where there was a daughter born after making the will. There a term was devised to an infant in venire sa mere, if it should be a son ; and if it should be a son and die under age, then to tiie testator’s grandson. It proved a daughter, and it was adjudged upon special verdict, that the. executrix, and not the grandson, should have the term, because the grandson was hot to take, but upon a precedent condition, viz. the birth of a son, which did not happen—Grascott v. Warren, (2 Eq. Ca. Ab. 361.) If the position I have advanced needed further confirmation, it will receive it from Doe v. Shippard, (Douglas 75.) There the words were, •'‘ Ami in case my said daughter Racjiael shall happen to survive the said Thomas Shippard, her husband, then upon trust,” Ac. after which follow the limitations over after the daughter’s death. It happened in event, that the husband survived his wife, and it was held that the limitations over did not take effect, the coritingcncy affecting all the limitations, and operating as a condition precedent.

The case was argued and decided on the ground of intention, to support which, the words were construed a' precedent condition ; and with the same object in view, the words in Jones v. Westconibe were construed a limitation. A Court may supply the omission of express words, if they can discover a plain intent, otherwise they cannot. And although it ought always to be considered what a testator meant to do, as well as what he actually has done, and we are not at liberty to .decide according to what he probably might have done, had a different view of events presented itself to his mind, yet the title of the heir must prevail against mere conjectures.

It is upon this principle,I think, that the contingency upon which the testator designed his nephew John to take the estate, has never happened ; that the fee devised to William, the son, was never displaced or modified,, because a son was not born ,• and that upon William’s death without issue, it descended upon his heir at law. My opinion therefore is, that judgment be rendered for the Defendant.

IIeNdersost, Judge.

I am now satisfied that when this case was here before, the facts then stated were sufficient for a proper decision, and that it was quite, immaterial whether the daughter Polly died during the life of William or not $ the life estate given to her being a circumstance relied on to tie up the general words, dying without issue.

On the question now presented, I am of opinion in the cvcn* which has happened, that Stephenson, the lessor of the Plaintiff, takes nothing in the lands in question ; for * * a precedent estate becomes a precedent condition, or not to an ulterior limitation, according to the intent. Thus if an estate is devised to A. and his issue, and if he should die without issue,. then to B, and A. should die leaving issue in the life time of the devisor, whereby the estate never vested in A. or his issue, B. would take, álthough A. left issue; for by whatever means A’sv estate was out of the way, whether by commencing and expiring, or by not commencing at all, and whether he left issue or not, if that issue could not take, B, by the plain intent, shall takefor the postulatum is, is the estate ouf of the way ? and not how it became out of the way. So, if a man devise his land to the child with which his wife is pregnant, and if that child should die without issue, then to B, and no child should be born, his wife not being pregnant, B. would take. In each of these cases, the words give way to the intent, there being nothing to control it. But put this case, a man having no child, devises that if his wife should be delivered of a daughter, (the wife being pregnant) that his daughter should have his estate during her life, and after her decease to go to his nephew, and a son is born. The words here do not give the estate to the nephew; he is only to have it after the death of the daughter, and there was no daughter to die. The Court in this case will make the estate to the daughter a condition precedent, that is, they will not vary the natural meaning of the words to carry the estate to the nephew, and leave the son totally unprovided for. We do not want authorities or precedents for this, for they are to be found running through all the cases, either openly avowedfor occultly governing the decision; and were there artificial rules intended to aid in establishing the intent (for at last it is nothing but a question of intention) which would lead to a.different result, it would become us to examine them well, and be assured that the rules were genuine, and that we understood their proper application. Let the principles governing the cases before stated be applied to the one before us : suppose no child had been born, the intent then would have justified a departure from the words, and carried the estate to Stephenson ; for upon the death of William, without issue, there would be no child but was provided for in the manner the testator designed. Polly, his only surviving child, would divide with the nephew as the testator intended. But a daughter is born, and we are called on to put a 'Construction on the words different from that which they naturally bear, to aid a nephew and leave a child entirely destitute, a child who never had offended, and which the testator recognised as his, by directing that should it be a son, he should divide the lands with William. I am aware that if the limitation to Stephenson is not sustained, the one to Polly must fall; be it so — it is better that the lands should remain in William, in fee simple, and descend to his heirs, and Polly be deprived of her limitation', than that Stephenson should take, and a daughter be excluded by constructions only. There are no sufficient grounds afforded to vary the words of the will, and on the will rests the Plaintiff’s title. Were I to hazard a conjecture why no further disposition was made by the devisor in case a daughter should be born and not a son, I would say, that having by the first part of the will given the whole of his lands to William, which were to be divested only by the birth of a son, the ulterior limitations were all bottomed on that event, and if a son was born he did not expect a daughter also at the same birth; if a son was born, which excluded a daughter, he was willing that, on failure of his male descendants, his nephew should share with his daughter Polly, for in that view of the case, there could he but one of his issue to take.

But the strong basis of this decision is, that the claims ^le after-born (laughter are stronger than the claims of tiie nephew, and we will not vary the common meaning of the words to let in the claim of the nephew, and thereby leave the daughter entirely destitute. In other words, the devisor has, by the very language of the will, made the birtli of a son a condition precedent, and there is no evidence of intent for the Court to dispense with the performance of the condition ; indeed, the birth of a daughter furnishes evidence the other way. I think that the Defendant is entitled to judgment.

Hade, Judge.

Í concur in the opinion delivered by Judge Henderson. The great and important object is to ascertain the intention of the testator. Agreeable to the letter of the will, the Plaintiff is not entitled, because the testator only gives it to him after the death of his son William and the death of the child which his wife was then pregnant with, if a male, without lawful issue ; it must be a male, and must die without issue, to give him a title. Now I agree that Courts will put such a construction on wills as to support limitations over, where particular estates are by any means put out of the way, as the Plaintiff’s counsel have contended. Yet they ought not to do it, against the letter and words of the. will, whom the consequence will be to leave a child altogether unprovided for: they ought to lean to support such limitations over, when they think from every circumstance that the persons taking under them are the next objects of the testator’s bounty, after the persons to whom the particular estate was given. But in this case I cannot agree to support the limitation over for the benefit of a nephew* and that too against the words of the will at the expense of a child who would be left altogether without the means of support, by a father, bound by all the ties of nature to make provision for her. Nor can I think that such could have been the wish of tlm testator.—(White and others v. Barber, 5 Burr. 2703—2 Fearne, 5th Ed. 410, in notis.) 
      
       Vide 3 Murph. Rep. 558.
     