#### DEN ON DEMISE OF THOMAS *G.*WATKINS & AL. *vs.*ANDREW FLORA.

A testator devised certain lands to his wife during her widowhood, and after her marriage or death, to his wife’s heirs by consanguinity, with the exception of one sister, Elizabeth. The wife was pregnant at the time of making the will, though unknown to the testator. Afterwards this child was horn, and died in the life-time of its mother. The mother then died, leaving brothers and sisters, her only heirs; *Held,*that on the birth of the child, the remainder vested in him, to the exclusion of the brothers and sisters of the wife, and on his death vested in his heirs at law.

The construction of a will must be upon the will itself, and cannot be controlled by parol proof of an intention, as to particular persons to take under the devise, for in effect that would be to make the will by parol; though the construction may be aided by evidence of the state of the family.

A devise to one person cannot be color of title to another, claiming adversely to the devisee.

The oases of *Gibbons*v. *Dwun,*1 Dev. and Bat. 446, and *Montgomery*y. *Wynns,*4 Dev. 4 Bat. 527, cited and approved.

Appeal from the Superior Court of Law of Currituck County, at the Fall Term, 1847, his Honor Judge Dick presiding.

Henry Bright was seized in fee of the premises in the declaration described, and on the 15th April, 1836, he made his will and therein devised and bequeathed as follows:

He directed a tract of land and three slaves to be sold and the proceeds to be applied to the payment of his debts, and the surplus, if any, he gave to his wife, Polly. The will then proceeds thus : “ I lend the tract of land I now live on” being that in dispute “unto my wife during the time she remains my widow. I also lend negro woman Chary and child, Pleasant, M ajor, Sylvester, Ann, and Amanda to my wife Polly, as long as she lives my *375widow. I lend the use and benefit of all my stock of every denomination, all the produce of every kind, all the house-hold and kitchen furniture, and farming utensils of every description to my said wife as long as she remains my widow. Immediately after the marriage of my widow, or directly after the death of my wife Polly, I give and bequeath all the before mentioned estates within doors and without, to my loving wife Polly’s heirs by consanguinity,with the exception'of Elizabeth McPherson : and I give and bequeath to her one dollar. I appoint my wife Polly whole and sole excutrix of this my will.”

The testator died on the 15th May, 1836, and his will was proved on the 4th Monday of that month, and his wife then entered her dissent to it. The testator or his wife had no issue born at the making of the will; but she was at the time pregnant. In August 1836, the widow intermarried with the defendant, Flora, and she was afterwards delivered of the child, of which she was pregnant in the testator’s life time; and the child lived about six months and died. At that time the defendant was in possession of the land, and dower was allotted to his wife in one third of it, which he claimed in her right. The defendant afterwards made a parol contract for the purchase of the reversion of the third allotted for the dower, and of the other two*thirds in possession in fee, from Narcissa Halstead, and Rachel, Solomon, and Robert Charlton. They were, together with said Elizabeth McPherson, the brothers and sisters of the testatox-’s wife, and were living at the making of the will, the death of the testator, and the marriage of his widow. Under those titles and a deed from Solomon Charlton for his share of the premises, executed about two years before the suit, the defendant held the premises for about teu years before the commencement of the action, claiming in right of his. wife, or,, under her brothers and sisters, for himself. Mrs. Flora died shortly before this suit; *376and the lessors of the plaintiff are the heirs at law, of the testator, and of the posthumous child *ex parte*-paterna.

On the trial, the foregoing facts were agreed by the parties. Then the counsel for the defendant offered furthermore to prove by witnesses, that the testator, at the time of making his will, was ignorant of the pregnancy of his wife, and that it was his intention, by his will, to give the premises to the said brothers and sisters of his wife (except Elizabeth McPherson) after the death or marriage of his said wife. But the Court rejected the evidence ; and upon the facts stated was of opinion with the plaintiff, and a verdict and judgment were rendered accordingly, and the defendant appealed.

*Heath*and *J. H.*Bryan, for the plaintiffs.

Iredell, for the defendant.

Ruffin, C. J.

A title at law cannot be set up for the afterborn child, under the Act of *1808,*in favor of children born after the making of their parent’s will. For, if the child took by the will, it was provided for by the father, and the case would not be within the Act; and, if the child did not take under the devise, but the mother and her brothers and sisters took the wrhole property, then the proceedings were not had, which the Act prescribes for vesting the seizin in the child.

Upon the construction of the will, it is contended for the defendant, either that the testator’s widow took the fee, or that it was limited over in remainder, upon the death or marriage of the wife, to her brothers and sisters, except Mrs. McPherson. That depends upon the operation of the words, “ my wife’s heirs by consanguinity.” We do not think they gave the inheritance to the wife. It is plain, from the testator’s giving every thing he had to his wife and her blood, that he did not intend his estate to go to his own family, as such. Then, as he gives the property over, upon the marriage of his wife. *377as well as upon her death, to her heirs by consanguinity, there would seem to be a pretty strong inference, that the testator did not mean those persons to take, in the quality of his wife’s heirs, that is, by succession after his death ; because then upon the marriage of the wife, the whole property would go to the testator’s own heirs and next of kin, for the interval between the wife’s marriage and death. Perhaps that of itself would not be sufficient to prevent the application of the rule, in *Shelly’s case*to this devise. But when to those considerations is added this other, that the testator expressly excepts from the wife’s heirs, to whom the limitation is made, a certain sister of the wife, one cannot be mistaken in saying, that the words wore not used as words of limitation of an estate to the wife, but as words of purchase, denoting who weré to take in remainder after the wife. For by the exception it is manifest, that the sister was understood by the testator to be within the general terms of description and that she might take,but for the exception. If she did take, it would be as one of the wife’s heirs, and others in equal degree must.in like manner,come in under the same words. But by excluding that sister, and leaving the others in equal degree to take, the testator shews that he did not mean them to take as heirs, by descent fi’om his wife, since the course of descent cannot thus be altered, by admitting some, and excluding other heirs. The wife’s estate therefore was only that expressly limited to her during life or widowhood, and the heirs took by purchase in remainder.

Then, the question is, who did take as purchasers under those words ? There are no other persons, who can set up a claim, but the after-born child, and the other brothers and sister of the wife, besides Mrs. McPherson. Here it may be remarked, that the construction must be upon the will itself and cannot be controlled by parol proof, of an intention as to the particular persons to take under the devise ; for in effect that would be to make the will by *378parol. The question is not the abstract one, what the testator intended, but what was his meaning by the words used by him. The evidence as to the intention was therefore properly excluded. On the other hand, it has been decided, that the construction may be aided by evidence of the state of the family. *Gibbons*v. *Dunn,*1 Dev. & Bat. 446. lienee it was competent to prove, that the wife was only pregnant at the making of the will, and, perhaps, that the testator did not know of it. But we do not look into the latter point, because, for the reasons that will presently appear, in our opinion, his ignorance of the fact could not affect the devise; and therefore the exclusion oí that evidence was of no consequence.

Between the two sets of claimants, the wife’s after-born child, and her brothers and sisters, the opinion of the Court is for the former. The testator uses words, “my wife’s heirs by consanguinity,” which embrace the child, as well, in case it was out of the way, as they do the brothers and sisters. The child being in *ventre malris*was *in rerum natura*capable of taking by descent, and also by purchase under the description of “ child” or “ heii’” of another. *Doe*v. *Clark, 2*H. Bl. 399. *Wallis*v. *Hodgson, 2*Atk. 117. *Thelluson*v. *Woodford,*4 Ves. 227. Then, what is to exclude the child It is to be remembered, that whoever takes, does so as purchaser; and that, as by the marriage of the wife the remainder would fall into possession during her life, the person, who takes, does not take as being the heir absolutely of the wife, but only as her heir apparent or presumptive. The brothers and sisters claim as filling the latter character, while the child was undoubtedly heir apparent. It is asked again, what is to exclude it *1*If the testator knew that it was in *ventre matris,*the defendant gives up the argument. But it is insisted that he did not know it; and the presumption is very cogent on the face of the will, that he did not, and it is thence inferred, that the testator could not mean the child to take, *379and that he did mean the brothers and sisters to do so, as heirs presumptive. There can be but little doubt, we think, that the testator expected the brothers and sisters *to*take, as he then naturally looked upon them as the wife’s nearest relations, and the exclusion of one of them shows that they were in his view. But that is not the whole enquiry. We are to consider, not only whether he intended those persons might or should take, but whether they, and no one else, should. How can those broad words, “ my wife’s heirs” be narrowed down to three or four particular persons, though those persons may have been in the testator’s contemplation ? The argument for the defendant is founded on the state of the testator’s knowledge at the time he used this language ; and thence is deduced his expectaion, and, thence, again, his intention, on this subject. The position is, that he meant the brothers and sister's, because he knew them. It would follow that he could only mean those brothers and sisters, whom he did know. But suppose the words had been “ my wife’s brothers and sisters,” and there had been one *oí*whom the testator had no knowledge, it would be impossible to exclude one that came so expressly within the description. Again, as these brothers and sisters say, that they take under the description of the “ wife’s heirs,” for the same reason another brother or sister, though unknown to the testator, must also take under the same description, Suppose further, that after the making of the will all the brothers and sisters had died in the lifetime of the testator, leaving children. The devise would certainly not fail, but those children would come in, as answering the description, when the will took effect and vested the estate. The gift is not to particular persons, as the sole objects of the testator’s bounty, but to a class of persons; and whoever came within it -when the will took effect, and the estate vested, take under it, and none others. So, the child of the wife took under this descrip» *380tion ; because though unknown to the testator, it alone answered the description: for it was in being when the the will was made, and when the testator died and the wife married,, and was heir apparent; and thereby the brothers and sisters ceased to be heirs presumptive. The exclusion of one of the sisters, though sufficient to show that, if the brothers and other sisters took at all, they were to take as- purchasers, does not prove that they were to take at all events, to the exclusion of all others. Whenever they should take, as being the heirs presumptive of the wife, Mrs. McPherson, though in equal degree, should not take. But it would still be a question between those brothers and *sisters,*and a child of the wife, then in *ventre matris,*which most nearly answered the description of *“*heir of the wife,” and certainly, the *latter*did, as being her heir apparent.

The lessors of the plaintiff are therefore entitled to the premises as heirs of the afterborn child, who took the fee. The defendant's possession was without color of title, and therefore is not a bap to the right of entry. He took a deed from only one of his vendors, and that, only two years before the suit. If, indeed, they had color of title, then the defendant’s possession under them would have been sufficient. But, as was intimated in *Montgomery*v. *Wynns,*4 Dev. & Bat. 527, we think the will cannot be color of title to the brothers and sisters, however doubtful the construction ; for it is impossible that a devise to one person, can be color of title to another, claiming adversely to the devise.

Pbb Cuexam. Judgment affirmed.