Supreme Court of Appeals. clared his aid last will and testament." The respon ne od dent also swore that he was himself a duly certificated .rivl 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 stised, it was alleged, that they severally purchased without notice of the plaintiff's claim. Thomas Newman, one of them, sa'd, that he had been advised that the said Eleanor had no right to apy 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 daughteri , and to provide for all his daughters out of his other es. tate, being possessed of many slaves and other personal esa tate. At the time of making his said last will, this defend. ant 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 expres. sions used in his will did include her, as well as his daughter Vary, 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, not. withstanding the case of Reece v. Long, reported in 1st Salkeld, p. 227., the rule is this, that, where a testator Botts, for the appellants, contended that the plaintiff, Eleanor, was not disinherited, or pretermitted, but actual y provided for by the will, under the word ". chi dren '? which comprehended a child in ventre sa mpre; in sup- . port of which position, he cited 1 er v. Turner, i l'ezey, sen'r. 96., Doe v. C'arke, 2 11. Bl. 399., and Doe v. Lancashire, 5 T. R. 61. Froin 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 wil, 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 all after-born ferring spears of children, generally, he is to be understood as re 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 mère." He therefore decreed that inin commissioners do divide the slares and other iqte of John Armistead, deceased, (after 66 1811. V. OCTOBER, children, the distribution might be delayed for many years : but, in the case of a posthumous child of the tesArmistead tator, it can be only for nine months. this testator might not contemplate his having a posthu- 2. I contend that the testator intended his personal 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 ninc:1, without directing that each devisee and legatee shall contribute proportionally to make up her portion. Williams, and IVickham, for the appellees. 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 deuth; 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 pro teeb 2.3.1 1811. 1811. V. V. 108E2, children, the distribution might be delayed for many v years : but, in the case of a posthumous child of the tesnistead tator, it can be only for nine months. gerfield 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 answet, being contrary to the nature of things, is not to be regarded; especially, when pointedly contradicted by the answer of John B. Armistead. 2. I contend that the testator intended his personal estate on'y, and not his lands, daughters. Frances and Mary were excluded from par. ticipating 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 tescator would revoke so much of the will as pretermits his posthumous child. It ought, therefore, to be applied to or any part thereof, for his vide only for children then in esse. A distinction is made OCTOBER, between sons and daughters. If, then, he meant to provide for a posthumous child, would he not have adhered Armistead to his rule, and kept up his distinction ? He would have Dangerfield. 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. (a) It is laid down in 2 Stra. 1093. Andrews (a) 4 Bac. Abr. 341. cit. v. Fulham, that a devise, per verba de futuro, to an infant ing Dyer, 177. Co. Litt. 112 en ventre sa mere, will take effect; and in Powell on De- b. Preced. vises, p. 332. that, “ where any express words are used, p. Wms 340. or facts adverted to by a testator exercising his bounty 2 Fez. 84. 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 V zey, 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. B. 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 subseVOL. III. D 470. 1 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. Danger field one ninti, without directing that each devisee and legatee shall contribute proportionally to make up her portion. Williams, and Wickham, for the appellers. 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 alfection, 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 ocorences which might take place in his life-time. From it may be inferred, that he intended to pro 1811. Armistead V. OCTOBER, quent 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 futuro. But he failed to provide for it, because he was 2. Mr. Boit's second point cannot be supported, if he 3. We are not going; in this case, against purchasers without notice. They were bound to take notice of the plaintiff's legai title ; for they bought of devisees; and, at their perii, were to see that the devise was sufficient in law to enable the vendors to sell. But, as to legal rights, (1) Wilcor v. want of notice does not protect a purchaser (a) ('illo-uy, 1 Walsh, 41. 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, express'y, for his children, w'thout 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 Mr Wickham contends, that children born, after the making of the will, in the lifetime of the testator, cannot take under a devise to children generally! He was right, however, in taking 1811. 1811 a V. TOBER, quent marriage and birth of a posthumous child amount to an implied revocation of a will of lands. mistead In this case, if the testator had intended to provide far azerfield. the posthumous child, he would have done it in verbe di futuro. But he failed to provide for it, because he wa 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 ! 240. every man making a will must be supposed to be is fluenced by the existing laws. 2. Mr. Boli's second point cannot be supported, if he fails in his first. We insist that the posthumous child is altogether pretermitted by the wil'. If so, she must take under the act of Assemby, and not under the will; and therefore must take a share of the real as well as the a this ground; for there can be no distinction between a OCTOBER, posthumous child, and such children as are born after the Armistead making of the will. The authorities cited in 4 Bac. 341, do not even touch Dangerfield. the subject. There is nothing concerning it in Dyer, 171. and Co. Litt. 112. b. Preced. Chan. 477. (Northey v. Burbage,) applies to real estate only. In 1 P. IVms. 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 capitu, and not per stirpes: that was, therefore, a compound case, not resembling this. And in 2 Vern. 105. (Garblandt 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 “ch:ldren,” comprehending all. The plain question is, whether Mrs. Dangerfield was provided for by the will at all. If she took any thing under the will, she can take nothing under the statute. personal esiate. 3. We are not going, in this case, against purchasers without notice. They were bound to take notice of the plaintiff's ligai title ; for they bought of dedisees; and, at their peril, were to see that the devise was sufficient in law to enable the vendors to sell. But, as to legal rights, cor v. want of notice does not protect a purchaser (a; 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. November 12th, 1812. Judge ROANE pronounced the following opinion of the court. Botts. in reply. The construction contended for by the gentlemen amounts to this, that when a testator provides, express'y, 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 mak. ing a law to provide for posthumous children, leaving all the children born after the making of the will, except posthumous children unprovided for; since Mr Wickhan contends, that children born, after the making of the will, the lifetime of the testator, cannot take under a devise lly! He was right, however, in taking “ 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 proportionable contribution by the devisees and legatees in the said |