Armistead v. Dangerfield

1. A devise terms’1 loathe “ckddren” does not comPrehend a posthumous prevent It ing™ uder the biy aspret™' mitted by the will. 2. Queire, does the tesing”1 at kthe' " tune of makmg the will, that his wife make any difease''?”8 3. A posthumous child unprovided for by settleinent.and pretermittod by Hsefátbei%1s°f entitled to a share of the veal estate, notwithstanding 6uch child he a daughter* and it appear, fiom the will, that the iefdcd'to'dve all bis lands to Ins sons. 4. Such.posthumous child is entitled to such share of the veal and personal estate, as it would have been entitled to, if the father liad died intestate ; including profits of lands, hires of negroes, and interests and profits of other personal estate. 5. The portion of such posthumous child is not to he raised by a divsion of the estate into oijual parts, but by a proportionable contribution by the devisees and legatees and those claiming under them. !>. Purchasers from the devisees and legatees are not exempted, -from contributing to make up the portion of such posthumous child, by tlieir having purchased without notice of such claiiy.

John Armistead, of the county of Caroline, by his last w^; dated June 25th, and proved July 9,1st, 1788, after sun(^ry devises of his lands to his zvidow and sons, direct» ed “ the slaves which should remain after paying his its debts, to be equally divided between his widow and '‘children* share and share alike, but to be kept toge-dleih a°d worked on his lands, or part hired out, at discretion of his executors, for the generad support and maintenance of his widow and ‘ childrenand that, . as his sons respectively came of age, and his daughters . , r , • , , married or came ot 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 Item., he gave to his children his personal estates s]aves not included) in the counties of Prince William 1 ' and Loudoun, equally, and to be kept together, and al» , , ru-i , lotted, as directed in the case oí 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 clivided equally between those 1 children’ who had not had a share of the personal estate.v At the time of making this will, the testator had six sons, and two daughters, namely, John Baylor, William, Addison, George, Lewis, Walker, Frances, and Alary, of wu0ln plant was not mentioned bu name, in the will. ’Jv • Ha had also a daughter in ventre ,sa mere, who was 0 # * born alter his death, baptized by the name ox Eleanor, amd 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 Arrrúhtead, the widow and executrix, John II. Armhtcad, and others, devisees and legatees, of the said testator, and William Herndon, and otha s, purchase) 3, of sundry lands from the said devisees; claiming, by vinue of the act of assembly in favour of isosthumous children, (a) as 1 . ‘ . . for a childpretermittedin the will, su h portion oí the real anil 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 tin: said devisees and executrix should, severally, set forth what parts of the said estate had come to their hands anti 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 he made, “so as to compel each legatee and devisee to abate proportionably for the purpose of making up the portion of the plaintiff.” Lucy Árn.vistead, the willow, in her answer, averred, that “ her late husband was not informed that she war enseint of that child, at the time of making h's will.” Her deposition was also taken, in which die swore that he left home in an extreme bad suite of health, in March, 1788, for Philadelphia, accompanied by their son, John Ji. Arm’stead', 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. Johnli. Arraistead, in his answer, said, that he accom - panied 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 ¿his defendant's mother, at the time he published and cíe dared his said last will and testament.” The respon(jent 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 hadbeen 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. Atthe 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 estufe, 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.” From which decree the defendants, on their motion, were allowed an appeal. (b) contended that the plaintiff, Eleanor, was not disinherited, or pretermitted, but actual'y provided for by the will, under the word “ children," which comprehended a child in ventre sa mere ; in support of which position, he cited Mi’lcr v. Turner, 1 Vezey, sen'r. 86.. Doe v. Clarke, 2 H. Bl. 399., and Doe v. Lancashire, 5 T.R. 61. From 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 us 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 zvi'l, have been excluded. There are other cases conflic.ing witsi 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 ozvn and his other children. Besides, if a devise to a brother’s children were to be construed as extending to all after-born children, the distribution might be delayed for many years : but, in the case of a posthumous child of the testator, Jt can ge only for nine months. f anticipate the only argument on the other side j 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 casé ; Mrs. Armistead having gone three months with child when he went to Philade phia. The assertion, in her answer, being contrary to the nature of things, is not to be regarded 5 especially, when pointedly contradicted by the answer of John B. Armistead. 2. Í contend that the testator intended his personal estate on’y, anu not his lands, or any part thereof, for his daughters. Frances and Mary were excluded from participating in the land»; 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 proportional'y to make up her portion. 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. 1 he 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 then 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 ail 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 v. Fulham, that a devise, per verba dejuturo, to an miant 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 Vczey, 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 Doev. Lancashire, 5 T. R. 61 • is yet more dissimilar; the only point decided being, that a subso . quent marriage and birth of a posthumous child atnousit: to an implied revocation of a will of lands. jn th¡s case, if the testator had intended to provide for the posthumous child, he would have done it in verba de jiitm-O' 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 II. and 31 240. every man making a will must be supposed to be influenced by the existing laws. ' 2. Mr. Bolt's second point cannot be supported, if he fails in his first. We insist that the posthumous child is altogether pretermitted by the will. If so, she must take under the act of Assemb’y, and not under the will; and therefore must take a share of the real as well as the personal estate. 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 they bought of devisees: 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, 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. The construction contended for by the gentlemen amounts to this, that when a testator provides, expressly, for his child/ en- w thout restriction, he does not mean to provide for all his children ! They would even make the legislatureguilty 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 tids ground { for there can be no cTíátiñctión between a c posthumous child, and such children as are born after the uiaklug of the will. ' The authorities cited in 4 Bac. 341, do not even touch the subject. There is nothing concerning it in Dyer, 1.7U and Cs. LHt. Í12. b. Preced. Chtin. Í77. (Northey v. Burbage,} applies to real estate only, in 1 P. Wms. 340. {Northey v Strange.) the devise was not to children, simply, but alc-o to grandch-ldren; giving each grandchild an equal share with the children', per capita, and sot per stirpes; that was, therefore, a compound case, not resembling this. And in 2 Fern. 105. (Garbland v. May at,) cited in the same page of Bacon, it was determined, when A. devised 20/. 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 j the zvord “ children,” comprehending ail.- 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.