Gibbon et al., vs. Gibbon. the time of the failure: 2 M. & K., 230; 2d M. & K., 90; 8th Vesey, 37; 8th Gray, 86; 3d Allen, 587. COLLIER & HOYT, for defendant, replied, that the testamentary scheme should be carried out: Doug. 322 : 1 Black, 672; testator intended to provide against a lapse of Mrs. Brown's devise and it did not lapse; 3 Atkyns, 572; 2 Cox, 121; 2 Vernon, 207, 611; 2 Peere Williams, 113; 1st Peere Williams, 274; Roper on Leg., 487, 8-9; 2 Williams on Ex., 1039-40; 17th Ala., (U. S.) 214; or if lapsed as to Mrs. Brown, it went into the residuum: 2 Williams on Ex., 1250, 1258; 8 Vesey, 25; 1 Sim. & Stu., 294; 1st Richard, Eq., 462; 7th Metcalf, 141; 31st Ga. R., 483; 32d Ga. R., 623; In this will full-blood meant children of testator: 1 Williams on, Ex., 116; 1 Roper on L., 115 to 119; 15th Vesey, 191; The after-acquired property passed under the will: Irwin's Code, sec. 2425; 25th Ga. R., 657; 4th Hill's (N. Y.) R., 138; 8 Paiges, R., 503; 12 Metcalf, 169, 262; 3 Cush. R., 366; 8 Cranch, 66; 4th Maryland, R., 335; 23 Mass. R., 251; 2 Sumner, C. C. R., 266; 18th Ga. R., 1; The widow must elect: Irwin's Code, secs. 2429, 3104-5-6-7; 24th Ga. R., 185; as to discretion of Chancellor, see 1st Ga. R., 9; 3d, 94, 435; 6th, 220; 15th, 554; 25th, 148. 1. We do not think the legacies to Mrs. Brown lapsed. The will distinctly provides that at her death, without children, the property left her shall go to the testator's heirs of the whole blood. This is not the same as if it were left to his heirs simply, it points out a particular class of heirs, or rather, as we shall hereafter show, it excludes a particular class of heirs, and therefore the persons taking are purchasers and do not take as heirs. But it is said that, as Mrs. Brown died before the testator, and as no man can have heirs until he is himself dead, the legacy to Mrs. Brown failing as to her, and also fails as to the remainder, because at her death there was no persons in ex Gibbon et al., vs. Gibbon. istence answering to the description of heirs of the whole blood of the testator, and that consequently the bequest is a lapsed legacy. The common law rule that a remainder must have a particular estate to support it, has never been applied so as to cause a legacy to lapse. Mr. Redfield, in his book upon wills says: (2 Redfield, 501.) "When the bequest depends upon an intervening estate under the will, and is thus made. to take effect only at the termination of the prior estate, and the prior estate lapses by the death of the legatee, before the testator, this will not defeat the bequest over," and he refers to numerous authorities in support of the position. A will takes effect at the testator's death. Nothing is more common than a devise to certain of the testator's heirs, as the heirs of his body, his heirs male, his minor heirs, his heirs of the whole blood, etc. These are all good devises, because though a man has no heirs so long as he lives, yet at the moment the will takes effect he has heirs. In this case, as the first taker died before the testator, the life-estate could not, it is true, take effect; but as we have seen, this is not necessary to prevent a lapse: Redfield, 2d volume, 501. When this will took effect, to-wit: at the death of the maker of it, his heirs of the whole blood, (whatever he meant by the phrase) were in existence, and under the rule we have mentioned, they take, as though the lifeestate was not given at all. He did not intend that his heirs of the full blood should take through Mrs. Brown. He only introduces them in case she and her children fail, and we see no reason, as they have failed, why this bequest is not as good as though it had been directly to testator's heirs of the full blood. 2. A leading point in this case, is the meaning which is to be given to the words "heirs of the full blood," used by the testator, in several of the clauses in this will. Does it exclude the wife? Although at the testator's death he had two children by his last wife, yet when the will was made he hád none, nor does he by any words used in the original will seem to have contemplated children by her. So far, therefore, as his immediate family is concerned, these words, taken Gibbon et al., vs. Gibbon. alone, have no meaning. He had two children and his wife, and had he them only in his mind the language he uses would be inexplicable. His two children were of the same mother, and of the same blood, and the words: "heirs of the full blood," are simply nonsense, as applied to the immediate family, as it then stood, and as it is referred to in the will. But it appears the testator had whole and half brothers and sisters then living, and this fact, as it seems to us, makes his meaning clear. The property which he is referring to is a remainder. He is contemplating the death of his wife, and of both his children; to each of them he gives a life-estate, and at the death of either of his children, without issue, he desires to dispose of the remainder. He thinks of his brothers and sisters and their families, and he remembers that by the laws of South Carolina, (where the will was made,) the whole and the half blood, in such a case, share equally. This is against his wishes, and he specially restricts the inheritance to the whole or full blood. Literally, these words exclude even his son and daughter, as well as wife. The son and daughter are of his blood, but not of his full or whole blood; as to each other they are of the whole or full blood, in them is equally mingled the blood of their father and their mother, they, as to each other, are of the same blood, they are of the blood of the father and the mother, but they are of the full blood of neither. As a description of one's descendants, these words are simply nonsense. A man can have no descendants of the full blood of himself, since even his children have of necessity only half of his blood. Mr. Lovelass, in his Treatise on Wills, 174, says: "A kinsman of the whole blood is he that is derived not only from the same ancestor, but the same couple of ancestors. Thus the blood of J. S. being composed of that of his father, G. S., and that of his mother, L. B. therefore, his brother, F., being descended from the same parents, has entirely the same blood with J. S., or is his brother of the whole blood. But if G. S. die, and J. B. marry another and have issue, though having the blood of J. B., having also the blood of the second husband is only of the half blood of J. S." Gibbon et al., vs. Gibbon. The words, therefore, of this will, taken literally, exclude the children as well as the widow, since they are none of them of the full blood of the testator. But clearly, taking the will altogether, it is not to be believed that he intended to give this property to his collateral kindred whilst any of his immediate family are living. His mind was, doubtless, so bent upon excluding his kindred of the half blood, that, as is very common with testators, he used language inconsistent with the plain intent of his will, in other parts of it. Courts, in such cases, will not stick in the bark, they will give a fair interpretation to a will, taking it altogether, and will not, by giving to an awkward expression its strict, literal meaning, thwart the real meaning of the testator, and will not hesitate to alter, or drop, or insert a word to carry this rule into effect: Revised Code, section 2420. After much reflection, we cannot but think that this testator meant to give this remainder to his heirs, but if collateral heirs, then only to those of the full blood. By the laws of Georgia the wife is expressly made the heir of the husband. If there be no children, she is the "sole heir," and if there be children, she is one of the heirs. A man's heirs are those who, by law, take his property on his death without a will. Our rules of inheritance are different from those of England, and each of the States of the Union has its own rules upon this subject. The word must necessarily describe different classes of persons, accordingly as it is used under one law or another. By the old English law, the word heir only covered descendants, it never went upwards, a man's father or mother could not be his heir. By our law, the wife is expressly made "an heir" of her husband. Code, section 2448. We are clear, therefore, that by these words: "heirs of the full blood," he did not mean his children alone, but his heirs generally, his legal statutory heirs with the qualification that if it should happen that his collateral heirs take, then only those of the whole blood shall come in. 2. By the common law, land was not devisable by will. The Courts, however, held the use of it devisable. But Gibbon et al., vs. Gibbon. when the statute of uses vested the legal title in the usee, the right to devise lands fell with that statute. The statute of wills allowed one to devise lands of which he was seized and possessed. Under the words of this statute, as well as because a will of lands is treated as a conveyance, it was the well settled rule in England, and in this State, until the adoption of the Code, that after-acquired lands did not pass by a will: Jones vs. Shumake 35th Georgia Reports, 153. The 2425th section of our Code, which went into operation on first of January, 1863, is in these words: "All property acquired subsequent to the making of a will shall pass under it, if its provisions be sufficiently broad." This will was made in 1859, the latest codicil to it, in 1861, but the testator did not die until May, 1868. All the Georgia lands owned by him at his death were acquired after he made his will. It is contended that the will not having gone into effect until the testator's death, being ambulatory until then, was a good will to pass these lands. We think not. We do not say that the words of this will are not large enough to pass after-acquired lands, had the will been made after the Code went into operation. On the contrary, we are of opinion that such a will made now would pass such lands. We do not think, however, that the statute, passed after a will is made, so operates as to make the will dispose of property that it did not dispose at the time it was made. The Act is not in its terms retrospective, and it is a general rule of law, as well as a fundamental provision of the Code, that an Act is not to have a restrospective operation, unless the words of the Act so require. It would be doing great injustice to the intentions of a testator to change the legal effect of his will by a law made after those intentions had been expressed. As the heirs-atlaw have no vested rights until the ancestor is dead, we do not assert that such a law would have been invalid under the Constitution of this State, as it stood at that time, prohibiting retroactive legislation, injuriously affecting private rights, though a good deal might be said in favor of that view. For though the heirs had no rights, the testator had a right to |