AMERICAN JURIST. NO. XLVII. OCTOBER, 1840. ART. I.-LAW OF CONTRACTS. No. 9.-Construction of Contracts. 6. If the words of a contract do not fully express, or even if they are contrary to, the evident intention of the parties, the intention is to be preferred to the expression.' Thus the condition of a bond of £2000 being "to render a fair, just and perfect account in writing of all sums received" was held to be broken by the obligor's neglect to pay over such sums. Lord Mansfield said, it was clearly the intention of the parties, that the money should be paid. Buller, J., said, it never could be meant that so large a penalty should be taken merely to enforce the making out of a paper of items and figures.' So a proviso, that an annuity to a married woman should cease, if she should "associate, continue to keep company with, or criminally correspond with J. F.," was extended to all intercourse, so that J. F.'s calling and leaving his card at the house, and sometimes being admitted, though no improper behavior on his part, or levity on her's, was shown, was decided to be sufficient cause to stop the annuity. A covenant that the lessee shall not exercise the trade of a butcher upon the demised premises, is broken by his there selling raw meat by retail, though no beasts were slaughtered there; the intention being to prevent the lowering of the tenement in the scale of houses, by the exercise, whether wholly or partially, of a trade which the lessor supposed would depreciate its value in future. So a covenant by a lessee not to use or exercise, or suffer to be used or exercised upon the premises, any trade or business whatsoever without license of the lessor, was held to be broken by assigning the lease to a schoolmaster who kept a school in the house." These, and numerous other cases, come under the first part of rule, namely, when the words "do not fully express" the intention of the contracting parties. They might, perhaps, be as properly classed under the third rule, that "the subject-matter of an agreement is to be considered in construing the terms of it," &c. The following examples fall under the latter part of the rule; that is, where the words are contrary to the evident intent of the parties; as Vernon v. Alsop, and the other cases mentioned in our last number, where the condition of a bond was wholly contrary to the bond itself and nullified it; and the cases of evident mistake, cited under the fifth rule. So of a note or bill of exchange made payable to the order of a fictitious person, which is held to be payable to bearer." 1 Dormer . Knight, 1 Taunt. 417. Doe v. Spry, 1 Barn. & Ald. 617. 3 Doe n. Keeling, 1 M. & S. 95. See also Doe v. Worsley, 1 Campb. 20; Doe v. Laming, 4 Campb. 77; Tombs v. Painter, 13 East, 1; Quackenboss v. Lansing, 6 Johns. 49. For construction of a covenant not to assign a lease without license, see 2 Selw. N. P. (1st ed.) 408-412; 3 M. & S. 353; 15 Johns. 278; 3 Pick. 221; 2 Stark. Ev. 433; 7 Johns. 227. 41 Lev. 77; 1 Sid. 105; T. Ray. 68. 5 Kyd on Bills, 208-268; Gould on Pleading, 159. Posthumus pro nato habetur. Therefore where one gave a bond to pay £900 to his daughter, if he should have no son living at the time of his decease, chancery relieved against the bond, upon its being shown that there was a posthumous son who would receive less of the obligor's property than the daughter, if the bond should be paid.' 1 Gibson v. Gibson, 2 Freem. 223. See also Millar v. Turner, 1 Ves. sen. 86. It has been the statute law of Massachusetts, for about a century and a half, that posthumous children shall have the same share in their father's estate, when he makes a will in which they are not provided for, as if he had died intestate; to be taken proportionally from the devisees and legatees who claim under the will. (Ancient Charters, &c. 351; St. of 1783, c. 24; Revised Statutes, c. 62.) This statute provision assumes, that if the father die intestate, a posthumous child will inherit; and such is the common law. Introduction to Reeve on Descents, p. lii, liii. Lands descend to the children already born, and vest; but are devested by the birth of a posthumous child. This devesting, however, takes place, in England, only when a son is born, the other children being daughters. 2 Bl. Com. 211. In New England, there is no distinction of sex in the law of descents. In Reeve v. Long, 4 Mod. 282, (and in several other books) the courts of C. B. and B. R. decided that a remainder to A's first son, after a life estate limited to A, could not be taken by A's posthumous son. But the house of lords reversed the decision, though all the judges retained their first opinion. Thereupon the statute of 10 & 11 W. III, c. 16, was passed, to enable posthumous children to take remainders limited to the children of the first or other person to whom the freehold is previously granted or devised. See Bac. Ab. Remainder & Reversion, D. Bul. N. P. 105. Stedfast v. Nicoll, 3 Johns. Cas. 18. A child in ventre sa mere is now considered as born for all purposes which are for his benefit. Hale v Hale, Prec. Ch. 50; White v. Barber, 5 Bur. 2703; Doe v. Lancashire, 5 D. & E. 49; Doe v. Clarke, 2 H. B. 399; Hall v. Hancock, 15 Pick. 255; Trover v. Butts, 1 Sim. & Stu. 181; Heinec. Pand. Pars I, § 124, 125; Pars V, § 22; 1 Domat, 277, § 14. The statutes of Massachusetts assume that effectual provision may be made by will for such child; and the cases above cited show that such is the law. Technically, a posthumous child is one who is born after the death of the father. But a child born after the death of the mother has the same rights, and is "of the same condition with other children." 1 Domat, 20, § 7, 8— 625, § 6. There is no statute provision in Massachusetts respecting children born after the mother's death. If therefore a mother, having property, should die before delivery, the rights of the child subsequently delivered (exsectus vel |