
    *Armistead and Others v. Dangerfield and Wife.
    
    Argued, Nov. 4th and 5th, 1811,
    decided, Nov. 12th, 1812.
    i. Devises — Construction— “Children” — Posthumous Child. — A devise in general terms, to the testator’s “children,” does not comprehend a posthumous child, so as to prevent it from claiming, under the act of assembly, as pretermitted by the will.
    а. Same-Same — Same—Same.—Qumre, does the testator’s knowing, at the time of making the will, that his wife is pregnant, make any difference in the case?
    3. Wills — Rights of Pretermitted Posthumous Child.— A posthumous child unprovided for by settlement and pretermitted by the last will of its father, is entitled to a share of the real estate, notwithstanding such child be a daughter, and it appear, from the will, that the testator intended to give all his lands to his sons.
    
      4. Same — Same.—Such posthumous child is entitled, to such share of the real and personal estate, as it would have been entitled to, if the father had died intestate; including profits of lands, hires of negroes, and interests and profits of other personal estate.
    5. Same — Same -How Portion Raised. — The portion of such posthumous child is not to be raised by a division of the estate into equal parts, but by a proportionable contribution by the devisees and legatees and those claiming under them.
    
      б. Same — Same—Same—Liabiiity of Purchasers from Devisees. — Purchasers from the devisees and legatees are not exempted, from contributing to make up the portion of .such posthumous child, by their having purchased without notice of such claim.
    John Armistead, of the county of Caroline, by his last will, dated June 25th, and proved July 21st, 1788, after sundry devises of his lands to his widow and sons, directed “the slaves which should remain after paying- his debts, to be equally divided between his widow and ‘children,’ share and share alike, but to be kept together, and worked on his lands, or part hired out, at the discretion of his executors, for the general support and maintenance of his widow and ‘children;’ and that, as his sons respectively came of age, and his daughters married or came of age, his or her share or proportion thereof be allotted and given up to them, and the residue to be considered as undivided, until his son Addison arrived of age, when he desired a division of his slaves to be made between his widow, and such of the children as had not had their dividend or proportion of them. Item, he gave to his children his personal estates (slaves not included) in the counties of Prince William and Loudoun, equally, and to be kept together, and allotted, as directed in the case of his slaves; except that, when his son Addison should come of age, and had taken his share thereof, the residue be sold, and the money divided equally between those ‘children’ who had not had a share of the personal estate.”
    At the time of making this will, the testator had six sons, and two daughters, namely, John Baylor, William, Addison, George, Lewis, Walker, Prances, and Mary, of whom, Mary was not mentioned by name, in the will.
    *He had also a daughter in ventre sa mere, who was born after his death, baptized by the name of Eleanor, and became the wife of John Dangerfield, who, thereupon, filed his bill, in her right, in the Superior Court of Chancery for the Richmond District, against Lucy Armi-stead, the widow and executrix, John B. Armistead, and others, devisees and legatees, of the said testator, and William Herndon, and others, purchasers, of sundry lands from the said devisees; claiming, by virtue of the act of assembly in favour of posthumous children,  as for a child pre-termitted in the will, such portion of the real and personal estate of the decedent as she would have been entitled to if her father had died intestate. The prayer of the bill was that the said devisees and executrix should, severally, set forth what parts of the said estate had come to their hands and possession respectively; that the other defendants should set forth, and discover, what portions they respectively held, and from whom their titles were derived ; that a division and partition be made, “so as to compel each legatee and devisee to abate proportionably for the purpose of making up the portion of the plaintiff.”
    Lucy Armistead, the widow, in her answer, averred, that “her late husband was not informed that she was enseint of that child, at the time of making his will.” Her deposition was also taken, in which she swore that he left home in an extreme bad state of health, in March, 1788, for Philadelphia, accompanied by their son, John B. Armistead: that the account of his funeral expenses, transmitted to her from Philadelphia, was dated, June 27th, 1788; and that, on the 3d day of September, 1788, the plaintiff Eleanor was born.
    John B. Armistead, in his answer, said, that he accompanied his father to Philadelphia, and was with him at the time of his death ; and-, from what was said by him during the journey, and in Philadelphia, “this defendant is certain his, father was acquainted with the pregnant state of *this defendant’s mother, at the time he published and declared his said last will and testament.” The respondent also swore that he was himself a duly certificated bankrupt, and, therefore, had no interest in the event of the present suit.
    In the answers of William Herndon and others, purchasers of lands of which the testator died seised, it was alleged, that they severally purchased without notice of the plaintiff’s claim. Thomas Newman, one of them, said, that “he had been advised that the said Eleanor had no right to any share of the said lands under the last will of her said father, whose intention appears to have been to devise his landed property to his sons, in exclusion of his daughters, and to provide for all his daughters out of his other estate, being possessed of many slaves and other personal estate. At the time of making his said last will, this defendant believes, and so he alleges, that the said testator well knew that his wife Lucy was far advanced in pregnancy, and, in case a daughter should be born, that the expressions used in his will did include her, as well as his daughter Mary, who is not named therein; but, in case a son should be born, that he would share, under the law of Virginia, a part of his lands, with his brothers.”
    The cause came on to be heard the 12th of February, 1811, when Chancellor Taylor was of opinion, that “this case presents the naked question of a posthumous child, who was neither provided for, nor disinherited, but only pretermitted by the testator’s» will, and is the very case contemplated by the Act of Assembly; and, notwithstanding the case of Reeve v. Long, reported in 1st Salkeld, p. 227, the rule is this, that, where a testator speaks of children, generally, he is to be understood as referring to those either living, and in esse, at the time of making the testament, or at his death, as circumstances, to be collected from his will, may justify; and not of those who are in ventre sa mere.” He therefore decreed that certain “commissioners do divide the slaves and other personal estate, late of John Armistead, deceased, (after *the payment of his debts,) and the lands whereof he died seised and possessed, into nine equal parts, and allot and assign to the plaintiffs, in right of the plaintiff, Eleanor, one of those parts, for her share of the said estate; and that the defendants do respectively make up an account of the rents and profits of the said real estate, from the periods they severally came into the possession thereof.” Prom which decree the defendants, on their motion, were allowed an appeal, 
    
    Botts, for the appellants,
    contended that the plaintiff, Eleanor, was not disinherited, or pretermitted, but actually provided for by the will, under the word “children,” which comprehended a child in ventre sa mere; in support of which position, he cited Miller v. Turner, 1 Vezey, sen’r. 86, Doe v. Clarke, 2 H. Bl. 399, and Doe v. Lancashire, 5 T. R. 61. Prom these cases it appears that such a child is, in general, considered as born for all purposes which are for his benefit. It may be said, that, in the case now before the Court, it is more beneficial for the infant to claim under the statute than under the will: but the question is concerning the fair intention of the testator. The right under the will cannot be altered, but the rule of construction must be the same as if the statute had not passed. ; ) • ; : . :
    There is a class of cases where the devise is not to the children of the testator, but of some other person, in which it has been decided, that not only posthumous children, but all born after the making of the will, have been excluded. There are other cases conflicting with these. But there is no case establishing such a rule, where the devise is to the children of the testator. His reason for devising to his brother’s children, may be particular affection for those living at the time of making the will; but it would be unnatural and preposterous to make a distinction between a posthumous child of his own and his other children. Besides, if a devise to a brother’s children were to be construed as extending to s : i > : 1 all after-born ^children, the distribution might be delayed for many years: but, in the case of a posthumous child of the testator, it can be only for nine months.
    I anticipate the only argument on the other side; that this testator might not contemplate his having a posthumous child. But this is not to be presumed, and the contrary, indeed, must be inferred in this case; Mrs. Armistead having gone three months with child when he went to Philadelphia. The assertion, in her answer, being contrary to the nature of things, is not to be regarded; especially, when pointedly contradicted by the answer of John B. Armistead.
    2. T contend that the testator intended his personal estate only, and not his lands, or any part thereof, for his daughters. Frances and Mary were excluded from participating in the lands; and, surely, the posthumous daughter ought not to be preferred to them. The act of Assembly is founded on the presumption that the testator would revoke so much of the will as pretermits his posthumous child. It ought, therefore, to be applied to revoke it, only so far as he would have revoked it.
    3. The purchasers of the legal title to the lands ought not to be disturbed by the decree.
    4. The Chancellor has erred in giving Mrs. Dangerfield one ninth, without directing that each devisee and legatee shall contribute proportionally to make up her portion.
    Williams, and Wickham, for the appel-lees.
    The question turns on the intention of the testator. If he did not intend to provide for the posthumous child, this court cannot make a will for him. The court, in construing a will, is not to regard the obligations of natural affection, or what will the testator ought to have made, but only what children he had actually in contemplation when he made it. This will, especially, was made in prospect of speedy death; not to provide for future occurrences which might take place in his life-time. From the will itself, it may be inferred, that he intended to provide *only for children th.en in esse. A distinction is made between sons and daughters. If, then, he meant to provide for a posthumous child, would he not have adhered to his rule, and kept up his distinction? He would have said, that if a son, it should share with the sons; if a daughter, with the daughters. This circumstance distinguishes this will from all the cases, and shows he meant by “children,” generally, only the children then living; so that, even if other children had been afterwards born in his life time, they would not have been provided for without a new will.
    But, according to the -authorities, where the devise is to “children” generally, without using words, de futuro, such as ‘ ‘to all the children who shall be living at his death,” the will is to be understood as speaking at the time when it was made, and none born afterward are to be let in.  It is laid down in 2 Stra. 1093, Andrews v. Fulham, that a devise, per verba de futuro, to an infant en ventre sa mere, will take effect; and in Powell on Devises, p. 332, that, “where any express words are used, or facts adverted to by a testator exercising his bounty toward such infant, from whence an implication or inference can be drawn, that he was aware the devisee could not take immediately,” the devise will be good. But, without such words, or facts, it would seem that an infant en ventre sa mere could not take by devise. The cases referred to by Mr. Botts do not contradict this position. Miller v. Turner, 1 Vezey, sen. 86, is a case of a marriage settlement; in construing which, children are considered as purchasers; and children to be born after the settlement are always in contemplation of the parties. In Doe v. Clark, 2 H. Bl. 399, verba de futuro were used; the devise being, “to such child, or children, of B. as shall be living at the time of his death.” The posthumous child of B. was considered as living for the purpose of receiving the benefit of this devise. But that case is not like this, and Doe v. Lancashire, 5 T. R. 61, is yet more dissimilar; the only point decided being, that a subsequent *marriage and birth of a posthumous child amount to an implied revocation of a will of lands.
    In this case, if the testator had intended to provide for the posthumous child, he would have done it in verba de futuro. But he failed to provide for it, because he was not informed of his wife’s pregnancy; or, perhaps, because he knew that the law provided for it. According to the case of Smith and wife v. Chapman, 1 H. and M. 240, every man making a will must be supposed tobe influenced by the existing laws.
    ' 2. Mr. Bott’s second point cannot be supported, if he fails in his first. We insist that the posthumous child is altogether pre-termitted by the will. If so, she must take under the act of Assembly, and not under the will; and therefore must take a share of the real as well as the personal estate.
    ; i ' 3. We are not going, in this case, against purchasers without notice. They were bound to take notice of the plaintiff’s legal title; for thejr bought of devisees; and, at their peril, were to ^ee that the devise was sufficient in law to enable the vendors to sell. But, as to legal rights, ■ want of notice does not protect a purchaser, 
    
    4. The chancellor’s decree.is to be understood with reference to the act of assembly; so as to be carried into effect conformably to it. There is, therefore, no error in that part which gives the plaintiff one ninth part of the real and personal estate.
    Botts, in reply.
    The construction contended for by the gentlemen amounts to this, that when a testator provides, expressly, for his children, without restriction, he does not mean to provide for all his children ! They would even make the legislature guilty of the'absurdity of making a law to provide for posthumous children, leaving all the children born after the making of the will, except posthumous children unprovided for; since Hr. Wick-ham contends, that children born, after the making of the will, in the lifetime of the testator, cannot take under a devise to children generally I He was right, however, in taking *this ground; for there can be no distinction between a ■posthumous child, and such children as are born after the making of the will.
    The authorities cited in 4 Bac. 341, do not even touch the subject. There is nothing concerning it in Dyer, 177, and Co. Litt. 112, b; Preced. Chan. 477, (Northey v. Burbage,) applies to real estate only. In 1 P. Wms. 340, (Northey v. Strange,) the devise was not to children, simply, but also to grandchildren; giving each grandchild an equal share with the children, per capita, and not per stirpes: that was, therefore, a compound case, not resembling this. And in 2 Vern. 105, (Garbland v. Mayot,) cited in the same page of Bacon, it was determined, when A. devised 201. a piece to all the children of his sister,, that a child born after the making the will, and before the death - of the testator, should take; the word “children,” comprehending all.
    The plain question is, whether Hrs. Dangerfield was provided for by the will at all. If she took any thing under the will, she can take nothing under the statute.
    
      
      The principal case is cited in Hansford v. Elliott, 9 Leigh 99.
    
    
      
       See Acts of 1785, ch. 61, sect. 3, and 'Rev. Code, 1st vol. ch. 92, sect. 3, p. 161.
    
    
      
       See Rev. Code, 1st vol. p. 375, ch. 223, sect. t.
    
    
      
       4 Bac Abr. 341, citing Dyer, 177, Co. Litt. 112 b; Preced. Chan. 470; 1 P. Wms. 340; 2 Vez. 84.
    
    
      
       Wilcox v. Calloway, 1 Walsh, 41.
    
   November 12th, 1812.

JUDGE) ROANE)

pronounced the following opinion of the court.

“The court is of opinion that there is no error in so much of the decree, rendered in this case, as considers the female appellee to have been a pretermitted child of the testator, John Armistead, according to the true construction of the act in such case made and provided ; nor in so much thereof as decrees to the appellee, John Dangerfield, in right of his wife, one ninth part of the real and personal estate (after the payment of his debts) of which the said testator died seised and possessed, together with the rents and profits of the said real estate; but that the same is erroneous in not having provided that the said portion, or ninth part, should be raised by a pro-portionable contribution by the dev-isees and legatees in the said ^testator’s will mentioned, and those claiming under them, as, in, and by, the said act, is further provided and required; and,.also in this, that no provision ■is made, in and by the said decree, in favour of the appellees', for the hires of negroes, and interest and profits of the personal estate, which may eventually be found due to them under the principle of this decree. The said decree is therefore reversed, but without costs, the appel-lees being the party substantially prevailing, and remanded to the Court of Chancery, be reformed, and finally proceeded in, pursuant to the principles of this decree.” 
      
      Note. See Mentz v. Hendley, 2 H. & M. 318.
     