
    James H. Heater vs. John T. Van Auken, William T. Hockenbery, and others.
    J. T., by Ms last will and testament, gave and devised the residue of his estate, real and personal, to Ms step-daughter, M. II., during her life, and after her decease to her children, to be divided equally among them.
    M. II,, at her death, left surviving her nine children, two of whom were illegitimate, and five grandchildien, children of a deceased daughter.
    On a bill filed for partition of the real estate after the death of M. H. it was held—
    That by the terms of the residuary devise, standing alone, it is clear that the illegitimate children of M. H. can take no interest.
    Under a devise or bequest to “ children,” as a class, natural children are not included, unless the testator’s intention to include them is manifest, either by express designation or necessary implication.
    Illegitimate children may take under the general description of children, but it must appear unequivocally from other parts of the will, that such was the testator’s intention.
    The natural and legal import of the term children is legitimate children; to overcome this presumption, and to extend or alter tlie legal import of the term, the testator’s intention must be manifest
    The fact that the will made other provision for the illegitimate children, in which they are described as sons of M. H., would have raised a strong presumption that the testator intended to include them under the general description of children, if M. H., at the time of making the will had been unmarried and without legitimate children, otherwise when at the date of the will she had lawful children who fully answered the description given to them in the will. In such case the mere fact that the testator • has recognized the illegitimate offspring as a son or child will not entitle him to take under a devise to children.
    In this case the other provision made by testator for the illegitimate children, so far from raising a necessary implication that the testator intended by the term children to include illegitimate children, affords a strong presumption of a contrary intention.
    Extraneous evidence that the illegitimate children resided in and formed members of testator’s family is competent to show that they were recognized as the reputed children of M. H., but not to affect the construction of the will. The implication must appear on the face of the will itself. The five grandchildren of M. H. were the children of H. O., who was born after the death of testator, and died prior to the death of her mother. Held that these grandchildren are entitled to a share of the estate.
    When an estate for life is carved out of the fee with a gift over to the children of the person taking the life estate, such gift will embrace not only the objects living at the death of testator, but all such as may subsequently come into existence during the life of the tenant for life. The children, if any are living at the death of the testator, take an immediate vested interest, subject to be di vestedy>rc> tanto upon the birth of other children ; and upon the death of any of the children during the life of the tenant for life their shares descend to their heirs-at-law.
    This was a bill for partition, filed May 10th, 1860, by James H. Heater against John T. Van Auken, William T. Hockenbery, Thompson Heater, and others, to obtain a partition of real estate devised by John Timbs to his stepdaughter, Mary Heater, during her life, and after her death to her children.
    
    The bill alleged that Mary Heater had eight legitimate children, one of whom, Hannah, intermarried with one (Jasterline, and died in the lifetime of her mother, leaving children, and two illegitimate children, viz., the defendants, John T. Van Auken, and William T. Hockenbery, who, by reason of their illegitimacy, were not entitled to any share of the property. The complainant claimed that the land should be divided among the seven legitimate children and the children of Hannah Casterline.
    The defendants, John T. Van Auken and William T. Hockenbery, by their answer admitted the fact, but claimed that they were each entitled to a share in the land notwithstanding their illegitimacy.
    They also claimed that the children of Hannah Casterline, not being children of Mary Heater, could take no share of the land.
    The case was submitted on written briefs by Mr. McCarter, for the legitimate children, and Mr. D. Thompson, for Van Auken and Hockenbery.
    
      McCarter.
    
    The main question is, whether under a devise to Mary Heater’s children, her illegitimate sons can take any share in the land.
    At the time of the making of the will she had two legitimate sons, viz., Thompson and Benjamin Heater.
    The rule is well settled, that when a devise or bequest is made to children, as a class, none but legitimate children can take, if there are any such to answer the bequest, unless the testator by clear implication, to be derived from the will itself, intends to include illegitimate children also. 2 Jarman on Wills 93, 129, and Sequel; Cartwright v. Vaudrey, 5 Ves. 520; Gordon v. Heyer, 2 Paige 11; Collins v. Hoxie, 9 Paige 81; Swaim v. Kennerly, 1 Ves. and Bea. 469; Wilkinson v. Adam., Ibid. 422; 2 Williamson Ex’rs 943; Frazer v. Pigott, 1 Younge 354; 1 Roper on Leg. 79; Ward on Leg. 69, 18 Law. Lib. 36; Godfrey v. Davis, 6 Ves. 43, 47.
    But it is claimed in this case that these two illegitimate children are recognized and described in the will as the sons of Mary Heater, and are therefore intended by testator to be included among her children.
    
      If that clause of the will stood alone unqualified by the other provisions, it would not be sufficient to bring these illegitimate sons within the description of children. Bagley v. Mollard, 1 Russ. and Mylne 581; Dover v. Alexander, 2 Hare 275; Shearman v. Angel, 1 Bail. Eq. 351; Note to 2 Jar. 129.
    In the present case, however, it is manifest that the testator did not intend to include the illegitimate children in the same class with the others.
    The necessary implication is defined in the case of Wilkinson v. Adam, cited above, to be “ so strong a probability of intention that an intention contrary to that which is imputed to the testator cannot be supposed."
    No such probability appears'here ; on the contrary, the strong probability is the other way.
    The testator makes special provision for these two illegitimate sons by a legacy of $150 to one, and $100 to the other. If they also share with the other children in the residue they get a greater portion than the legitimate children. It is by no means probable that the testator would have intended such a result in favor of bastard children who were none of his blood.
    He describes these two sons in his will, each one by his name, while he calls the others children without specifying their names, as if he understood that unless he did resort to some designatio personarum they could not take under the general desciiption of children.
    The children of Hannah Casterline are entitled to the same share their mother would have taken had she survived her mother. Nix. Dig. 196, § 10.
    
      Mr. Thompson.
    
    Did the testator, in the residuary devise in his will, intend to include the two illegitimate sons of Mary Heater in the description of her children?
    
    The rule which Chancellor Kent seems to have derived from the English authorities is thus stated :
    
      In respect to wills, prima facie illegitimate children do not take under the description of children, and there must be evidence, to be collected from the will itself or extrinsically, to show affirmatively that the testator intended that his illegitimate children should take, or they will not be included. 4 Kents Com. 414, note e, 7th ed.
    
    Apply this rule to the will of the testator, John Timbs.
    The will itself shows that the testator intended to include these two sons of Mary Heater in the description of children. Tn a bequest of a special legacy to each of them, he recognizes them as the sons of Mary Heater. Having once recognized them as children of Mary Heater by the designation of sous, had he intended to exclude them from the benefit of the residuary devise he would have said so in express terms, or by confining that clause to the Heater children, of whom two were born at the date of the will.
    The decisions of the courts of the different states in regard to this class of persons has upon the whole been more liberal than the English authorities. In one state it has been decided that illegitimates are to be deemed children within the purview of the statutes of distribution, and consequently that they can take their share of the mother’s real and personal estate equally, as if they were legitimate. Heath v. White, 5 Conn. 228.
    The statutes of many of the states, in accordance with the prevailing liberality of feeling towards this class of unfortunate persons, have introduced changes in their favor, so that they can inherit from their mothers.
    In regard to the Casterline children, the rule is well settled, that only those who answer the description of children at the time the estate vests can take. The statxite referred to by counsel of complainant (Nix. Dig. 196 § 10) does not apply to this case.
   The Chancellor.

John Timbs, by his last will and testament, bearing date on the 9th day of January, 1821, gave and devised the residue of his estate, real and personal, to his step-daughter, Mary Heater, during her life, and after her decease to her children, to be divided equally among them. Mary Heater died in February, 1860. The bill in this cause is filed by one of her children, for the partition of the real estate thus devised between the children and grandchildren of the said Mary Heater, in proportion to their respective shares and interests therein, according to the terms and provisions of the will of the said John Timbs.

Two questions are raised by the pleadings upon the effect of the devise to the children of Mary Heater, viz:

1. Are her illegitimate children entitled to a share of the estate ?

2. Are her grandchildren entitled to the share of their deceased parent ?

At the time of the devise and at the death of the testator Mary Heater had two illegitimate children born before her marriage with James Heater, and two legitimate children born after her marriage. After the death of the testator she had six other children born in lawful wedlock, one of whom, Sarah Casterline, died in the lifetime of her mother, leaving issue five children. Mary Heater, at her death, left surviving her nine children, two of whom were illegitimate, and five grandchildren, the children of a deceased daughter.

By the terms of the residuary devise, standing alone, it is clear that the illegitimate children of Mary Heater can take no interest.

Under a devise or bequest to children,” as a class, natural children are not included, unless the testator’s intention to include them is manifest, either by express designation or, necessary implication. 1 Roper on Leg. 85; 2 Jarman on Wills 129; 2 Williams on Executors 943.

All the cases cited in support of the claim of the illegitimate children will be found to fall within this principle. Illegitimate children may take under the general description of children; but it must appear unequivocally, from other parts of the will, that such was the testator’s intention. The natural and legal import of the term children is legitimate children. To overcome this presumption, and to extend or alter the legal import of the term, the testator’s intention must be manifest.

The residuary clause of the will in question, under which the children of Mary Heater claim title, contains no express designation, by name or otherwise, of her illegitimate children. The testator’s intention to include them in that devise, if it exist, must appear by necessary implication from other parts of the will. Does it so appear ?

The testator, after giving to his wife the sole use of all his real estate during her life, so far as necessary for her comfortable support, gives, in the first place, to his wife’s daughter, Mary Heater and her “ children,” all the residue of the profits of the real estate. He then declares it to be his will that Ms wife and her daughter and daughter’s ££ children” aforesaid shall have the management, use, and profits of all his goods and chattels during the life of his wife. By the residuary clause, the testator, after the decease of his wife, gives all the residue of his estate, both real and personal, to the said Mary Heater during her life, and after her decease to her £ £ children, ” to be divided equally among them. These are the only provisions in the will in favor of the children of Mary Heater, as a class, by the designation of “ children.” Hone of them contain the least intimation, on the part of the testator, of an intention to enlarge the legal import of the term tc children” used in the will, much less any necessary implication of such intention. If these clauses stood alone there would be no room for question. But the will contains other provisions in favor of the illegitimate children of Mary Heater, which are relied upon as furnishing evidence of an intention on the part of the testator to include them in the general designation of “ children.”

After making the provisions already referred to, and giving the use of all the moneys due him to his wife during her life, the testator, after the death of his wife, gives to Mary Heater’s son John one hundred and fifty dollars, to he paid to him when he shall arrive at full age, and to the said Mary’s second son, William, one hundred dollars, to he paid to him when he shall arrive at full age; and he further orders and directs, that if his wife shall die before the said John and William should arrive at the age of twenty-one, they shall have the interest of the moneys due the testator to assist them in obtaining education until they arrive at full age.

These clauses show that John and William were the reputed sons of Mary Heater, and that the testator recognized them as such ; and if Mary Heater had then been unmarried, and had no legitimate children, they would have raised a strong presumption that the testator intended to include them under the general designation of children. But at the date of the will Mary Heater was a married woman and had lawful children, who fully answered the designation given to-the intended objects of the testator’s bounty. In such case the mere fact that the testator has recognized the illegitimate offspring as a son or child will not entitle him to take under a devise to children. Bagley v. Mollard, 1 Russ. & M. 581; Fraser v. Pigot, 1 Younge 354.

But the provisions of this will, so far from raising a necessary implication that the testator intended by the term children to include the illegitimate children of Mary Heater, afford a strong presumption of a directly contrary intention. The testator, by the several clauses of his ,will, made provision for the children” of Mary Heater as a class. These provisions, by their terms, clearly operate in favor of her legitimate children only. He then makes special provision for her two illegitimate sons by name. He gives to each a legacy payable at twenty-one, and in the event of the death of his widow before that time, makes provision for their education. He makes no special provision whatever for either of her legitimate children, who were younger, and as it would seem, in a situation more to require this peculiar provision for their protection. This marked distinction between the two classes of children indicates a discrimination in the testator’s mind between them, and an intention not to include the illegitimate sons under the general provisions in favor of the children. It cannot be presumed that the testator intended to make the illegitimate rather than the legitimate children of Mary Heater the favorite objects of his bounty, 'which must be the result if they share the benefits of the residuary devise.

An attempt is made to sustain the construction in favor of the illegitimate children by extraneous evidence that the children resided in and formed members of the testator’s family. The evidence is competent for the purpose of showing that they were recognized as the reputed children of Mary Heater, but not to affect the construction of the will. The implication must appear upon the face of the will itself. Wilkinson v. Adam, 1 Ves. and B. 462; 12 Price 501; Swaim v. Kennerly, 1 Ves. and B. 469; Gardner v. Heyer, 2 Paige 11; Collins v. Hoxie, 9 Paige 81; 4 Kent's Com. 414, note e; 2 Will, on Ex'rs 943.

The cases show that extrinsic evidence, to affect the construction, is admissible only when there are no legitimate children in existence at the time of making the will to satisfy the terms of the bequest.

But admitting the competency of the evidence, it is insufficient to alter the legal import of the terms of the will. Their utmost effect is to afford ground for a plausible conjecture, not to create a clear conviction of a different intent in the mind of the testator.

II. The second question raised by the pleadings admits of no doubt. Hannah Casterline, one of the daughters of Mary Heater, was born after the death of the testator, and died prior to the death of her mother, leaving issue. Where an estate for life is carved out of the fee with a gift over to the children of the person taking the life estate, such gift will embrace not only the objects living at the death of the testator, but all such as may subsequently come into existence d nring the life of the tenant for life. The children, if any are 1 i ring at the death of the testator, take an immediate vested interest, subject to be divested pro tanto upon the birth of other children ; and upon the death of any of the children during the life of the tenant for life, their shares «descend to their heirs-at-law. 2 Jarman 75.

The estate must he divided into eight equal shares, the seven surviving children of Mary Heater being each entitled to one share, and the children of Hannah Casterline, the deceased daughter, to the remaining share.'

Cited in Ward v. Tomkins, 3 Stew. 4.  