#### ADELAIDE S. MEARES *vs*WILLIAM B. MEARES’S EXRS. AND AL.

A provision by a parent for a child in any manner or at any time — except in the case of partial intestacy — excludes such child from the benefit of the Act of 1808, Rev- Stat, c. 122 s. 16, providing for children bom after the making of their father’s will; yet, to have that effect, the estate derived by such child must be *ex provisions parentis,*and not from any other source.

A provision however inadequate, will exclude a child from the benefit of this act.

Where there is a gift in a will to a class of persons, as to children, Courts are always anxious t o effectuate the intention of the testator, by including in it as many persons, answering the description, as possible.

When legacies are given to children, payable or to be divided at some period subsequent to the testator’s death, then those persons, whether born before or after the making of the will or before or after the death of the testator, who come into being before the period of division &c. and answer the description at that time, are entitled.

In construing a father’s will, although the division may not be postponed, a gift to his own children will be held to include all of them in being at his death, unless it be evident upon the will that the testator meant the provision only for those living at the date of the will.

The cases *of VanTwoTe vs Rogers,*3 Mur. *178; Fleetwood vs*Fleetwood,2 Dev. Eq. 222, and *Knight*vs *Wall,*2 Dev. and Bat. 125, cited and approved.

Appeal from the Superior Court of Law oí New Hanover County at Fall Term, 1843, his Honor Judge Battle presiding.

This was a petition filed by the plaintiff, who was a daughter of William B. Meares deed., bom after the making of her father’s will, to obtain a share of his estate, under the provisions of the act of Assembly, Rev. Stat. c. 122, s. 16, 17, The executrix and the legatees, heirs and next of kin of the deceased, were made parties *defendant.*The following are the material facts disclosed by the pleadings.

On the 15th of October, 1838, William B. Meares made his will, of which he appointed his wife executrix. The will gives to her certain real and personal estate for her own *193immediate ose, and then confers the power of selling all the other parts of the testator’s estate, real and personal, at such times and on such terms, as the executrix might think best. Out of the proceeds of the sale, or out of the profits before a sale, the testator directs his debts to be paid, and two small annuities to be paid until January, 1844, to his two eldest sons. Then come these clauses: “ As my executrix is authorized, but not required, to sell my real estate, and will in that regard be governed by circumstances, to wit* the practicability of effecting salts without too great sacrifices, and it will be necessary for the support of my family and,education of younger children to work my rice lands if not sold, and, if sold, the money on interest will be required for the same purpose ; I direct my executrix not to make any division of that part of my estate, not given to my wife, among my legatees, until the 1st day of January, 1844 ;• and that, until that time, the whole of my estate,- not given to my wife, be kept as a common fund for the maintenance of my family (my wile included) and the education of my children: and on the 1st of January, 1844, or as soon after as praticable, such of my real estate', as may remain unsold, must be sold; and whatever estate there may then be shall be divided as foLIows, to wit, into as many equal shares as 1 may have children then living, adding one share for my wife; and I give one share thereof to my wife. I then will that the residue, after taking out my wife’s said share, shall be valued, and one fourth part thereof equally divided among my sons Henry W,, Thomas D.. Gaston and John L. Meares, which I give to them and their heirs. The then remainder of my estate I direct to be kept together as a common fund to maintain and educate those of my children who are younger than my son John L.; and so to continue until the 1st of January, 1851. I then direct that the estate then remaining unexpen-ded be divided as follows, to wit, that m-y sons William B., Oliver P., Edward G. receive a sum equal to that allotted to my other children in 1844, and my son Walker a like sum and $500 move to bring up his education to equal maturity; and that the residue them remaining be equally divided a-' *194all my children then living; and in case either of my children should then be dead and have left a child or children, such child or children shall have parent’s share.” Then follow several clauses, in which (he testator directs that any money not necessary for the maintenance of his family and education of his “children,” should be invested in stocks ; and, upon the death of an'y of his “children” under 21 and without leaving issue, limiting- over the share or shares of the one or more, so dying, to the “ survivors or survivor of his children,” and, upon the death of “all his children” under 21 and without leaving issue at their death, he gives the whole property to his wife. The testator then adds :

“ It is my will and Í so order, that all my children be liberally educated, and that there be expended upon their education as much as may be necessary for that purpose, even if it exhaust both profits and principal; and, further, that if it shall appear in January, 1844, that my younger children cannot be educated from the income of my estate, if the allotment and division, herein before appointed to be then made, should be made, then I direct that said allotment and division shall not be then made, but my estate must be kept together and the income expended on the education of my youngerchildren-”

At the time of making the will, the testator had the eight sons mentioned in it and no other child. In May, 1839, the testator had a daughter born, Adelaide 8. Meares, who ts the present plaintiff; and in October, 1841, the testator died, leaving his wife and the nine children, before mentioned, surviving him.

In September, 1843, the present suit was commenced by petition bythe daughter Adelaide S., by a next friend, a-gainsl her mother and brothers, setting forth the facts above and claiming to have such portions *laid off to*her of the testator’s personal and real estate, as she would have been entitled to, had her father died intestate — insisting that he had made no provision for her. The answers admit the facts, but insist, on the other hand, that the will does provide for *195the plaintiff, and therefore that she can [have nothing more. In the Superior Court there was a decree *pro forma*for the r *i j*plaintiff, and an appeal to the Supreme Court.

*Badger*for the plaintiff.

No counsel for the defendants.

RuffiN. C. J.

The present proceeding is founded on the aet of 1808, “ to provide for children born after the making of their parent’s will,” by which it is enacted, that) when a child shall be born after the makingof the parent’s will» and *such parent shall die loithout having made provision for said child,*the child shall be entitled to such portions of the personal and real estates of the parent in value, as he or she would have been entitled to, had the parent died intestate ; which portions are to be made tip in a manner specified in the act The plaintiff’s right, therefore, depends upon the enquiry presented in the pleadings, whether her father’s will does or does not make provision for her. The act, indeed, does not require that the provision by the parent for a child, born after his will was made, should be by the will itself; and there is no doubt that a provision under a settlement or otherwise, executed either before or after the birth of the child, would prevent the claim of a portion under the act. For the act does not proceed upon a notion of compelling the parent against his wishes to give an equal share of his estate or any part of it to every child. But it supposes that every parent is desirous of performing the natural duty of making a provision for each child ; and, therefore, when it happens that a will is made by a parent, who did not contemplate the birth of a child subsequently, and in consequence of that gave away all of his estate to his other children or to other persons, thereby leaving an after born child destitute, the law interposes this provision beneficently as supplying that, which it presumes the parent must have intended to make and would have made after the birth of the child, had not death surprised him, or a mistake as to the effect of his will, or an unaccountable supineness, prevented him from making the alteration dictated by natu-? *196ral affection. But this cannot apply to the case of a compe-provision by olher means; for vve can see there a reason, consistent with nature, why the parent should not alter jj.¡s w¡[[^ or even declare in it why he does not make therein a further provision for such a child. It may be said, indeed, that would apply equally to a case, in which the provision for the child came from a grandfather, or a collateral relation, or even a stranger ; since the substance is, that the child is not unprovided for, and that may have induced the parent not to give more. . But it is impossible that the wisest men can foresee every possible state of facts on which a law may operate, and provide in it accordingly. The usual source of provisions for children is tbeparent, and therefore the Legislature has adopted its enactments to that ease, and confined them to it. While, therefore, a provision in any manner or at any time by the parent for the child — except, •by necessary construction of the act, one by reason of a partial intestacy — excludes the ease from the operation of the of 1808; yet to have that effect, the estate derived by the child must be *ex provisions parentis,*both by the words and the spirit of the act.

But in this case, there is no other provision for the plaintiff but that in the will, if there be any in that instrument; and the case, therefore, turns on the construction of the will. If the act of 1808 had never passed, there is little doubt that it would be readily discovered, that this will did not exclude, but included, the plaintiff; -for courts are ahvays anxious to effectuate the intention of testators, when there is a gift to a class of persons, as to children, by including in it as many persons, answering the description, as possible : seeing they all stand in the like relation to the testator, and, when a parent, in a very near relation. In consequence of this inclination a number of rules of construction have been laid down, under several of which the plaintiff would get a provision, though it happens an inadequate one, nndev her father’s will. For, although, when it is clear a testator meant to confine the gift to children, or to any other class of persons, to those only who were *in esse*at the making of *197the will, that meaning must govern ; yet the intention must be plain, to have that effect. When, however, legacies given to children, payable or to be divided at some period subsequent to the testator’s death, then those persons, whether born before or after the making of the will, or before or after the death of the testator, who come into being before the period of division &c. and so answer the description at that time, are entitled. *Vanhook*v *Rogers,*3 Murph. 178. *Fleetwod*v Fleetwood, 2 Dev. Eq. 222. *Knight*v Wall, *2*Dev. & Bat. 125. But in construing a father’s will, although the division may not be postponed, a gift to his own children will be held to include all of them in being at his death, unless it be evident upon the will that the testator meant the provision only for those living at the date of the will; for the law presumes he intended to fulfil his natural duty by providing for each one, and, therefore, *if it be*possible, receives his words in that sense. This is strongly exemplified in the two cases of *Matchwick*v *Cock,*3 Ves. 609, and *Freemantle*v *Taylor,*15 Ves. 363; the former of which was decided by Lord Alvacjley, and the latter by Sir William Grant ,- in which it was very apparent that only the-children in existence when'the will was made were within the contemplation of the testators; yetas there was no apparent purpose to exclude others, those after born were admitted under the general term “children” of the testator. Here we have not only the circumstances, that there are future divisions, and that the objects of the testator’s bounty are his own children, but the testator says that in the mean time *“all nnj*children” shall be educated in the best manner; and, then, those divisions are to be made in shares equal in number to *the children then living,*and finally, *the residue, after*taking out certain parts for four named sons in 1851, *is then to be equally divided between all the testator's children then living.*Here is an express provision for the plaintiff, to say nothing of the cross limitations among the children upon the death of any not leaving a child and under age. As before mentioned, the statute only provides for the case where the parent dies without having *198made provision for the child; which means, without making any provision. For the act does not mean to judge between the parent and child as to the adequacy of the provision he may choose to make; but only to supply his accidental omission to make any, and, in doing that, the rules of the statutes of distributions and descents are adopted, because there is no other.

Per. Curiam, Decree reversed and petition dismissed.