#### Lucinda M'Lemore, *vs.*Blocker, Goode, & John M'Lemore, *Executors of James M‘Lemore.*

*Testator, by his will, malees provision for a posthumous child. Held that the child born after the making of his will, and before Ms death, was entitled to the provision.*

*Testator gives'tóhis uiife, by the will, “all the property which belonged to her before my marriage, of what kind or nature*Soever.” *Held that chases in action passed under this bequest.*

*Testator had received with his wife, On marriage, a note of ¡¿and, which, ajter the making of his will, he disposed of in the ^ purchase of land. Held that she was entitled to the value of ‘file note, under the foregoing bequest.*

*Application to compel the wife to give security for the forth" 'coming of personal property after the termination of her life ■ estate, refused; but she was ordered to sign a schedule of the property.*

JamJe's- M'LestoRH made and duly executed *his last wilt*and testament, on die 7th day of September, A. *D.*1820. That will contained the following clauses: “I give and beqeath id my beloved wife, Lucinda M‘Lemore, the whole of die property which belonged to her before my marriage with hex-, of what' nature or kind soever: also one half of my stock of cattle and •hogs, all my household and kitchen furniture, my riding chaiiy and a good horse to draw it, which 1 wish my executors ter purchase for that purpose: also two hundred dollars, to be paid'' her annually, On the 1st day of March, for, &c. during her natural life: provided, nevertheless should she be pregnant at *tht*time of my death and bring forth a' living child, then and in that case, the property above given is only loaned to her, for* and during her natural life, and is to revert, at the time of her; death, to the child that she may have, if it should survive her* if not, itis'to go with the balance of my estate; and the provision herein made for -my beloved wife is intended in lieu and bat of dower.” After the execution of this will, *the*testator bad tf son born in his life time, and he himself departed this life, leaving his will in full force and virtue, and leaving alive his wife, Lucinda, and said son. ’

The widow filed her bill to have her. rights established, and the defendants, who were the executors of the will, stated the *273Joints in controversy, which required the interposition and decision of the court. It appea -ed that the testator, amongst «ther things, acquired, by his marriage, a number of notes of hand, due by various persons; some of which remained uncollected at the time of his death. That the principle note was one for ,$ 1000, which the testator passed away to Abner Blocker,, as a reimbursement to him of money advanced to pay •for a tract of land purchased by the testator, James M'Lemore, and since his death sold by the sheriff as part of his estate.

Chancellor *Desaussure.*— It' is agreed that the notes of hand .which came to the testator by his wife, and which *viere*not collected by him -during his coverture, do not form any part of his estate, but returned to the widow and have been delivered up to her. One question arises in the case which is not pressed by the defendants, but is proper to be decided in order to prevent future litigation. It is whether the child born after making the will, of the testator, but before hjs death, "is entitled to the provision made in the will for such child as the testator’s wife might be pregnant with at his death and hereafterwardsf That was precisely the question, under the same circumstances, in the case of *White*& Barber, 5 *Burr.*2703. The judges decided that notwithstanding the defect of expression in the will, that the children born before the death, are virtually included in the provision so anxiously made *'by*a parent for his posthumous children. I concur in this view of the question, which alone could prevent the occurrence of cases, in' which, by a different and more rigid construction, children would be disinherited by their own fathers, when most anxious to provide for them. The son of the testator, James M‘Lemore, must therefore have the benefit of the provision made for an after born child in his father’s will.

We come now to consider what passed to the widow mi-„der that part of the will of the husband -which is in these words: •‘I give and bequeath to my beloved wife, Lucinda M'Lemore, the whole of the property which belonged to her before my marriage with her, of ■ what nature and kind soever.” It was argued, for defendants, that notes of hand or chcses in action, *274do not pass under ¡.he word property} but upon the argument of complainant’s counsel and on refection, 1 am of a different opinion. The word property, is of very extensive meaning» and coupled with the words, “of whatever nature and kind .soeverindicates a clear Intention to give to the wife every tiling-received with her.

It was further contended for the defendants, that as the testator had invested the largest note, received on his marriage, as part of his wife’s fortune, in the purchase of land, neither the land nor the value of it, could pass under the devise above mentioned. This is in truth the difficult question in the case, The general rule is indeed a plain one. If a testator, after making his will, disposes of any thing given by his will, the, legacy is at an end. If he devises lands and afterwards sells them and takes bond and mortgages for the price, these will not pass. So if he devises bonds and a mortgage of land, and he gives up the bonds and mortgage, and takes a re-conveyance of the land, the land will not pass. *See Cogdell’s case in*3 *Eq. Rep.*346. This however like all questions arising under last wills and testaments, except a few which depend on mere technical construction, is a question of intention. It is- presumed that the testator intended to rescind the bequest, when he has so parted with *the*thing bequeathed, that the words of the will cannot operate upon it. This presumption of intention, may however be repelled by other presumptions; for a will may be so worded as to manifest that the testator did not intend the legacy should fail. What was the intention of the testator in *the*case before us? He means to give his wife all the property of whatever nature or kind, which she had brought him in marriage; He gives nothing specific. He seems to mean to place her on as good a footing as she was when she became his wife, and adds thereto some small provision for her from his own property; and this he gives in lieu- of dower. If the alteration oí the nature of the property by him, changing notes of hand for other estate, is to annul so much of the legacy, it will go far to defeat his intentions wholly, for the note laid out in land was the greatest part of the property in question. It docs not ap *275pear to me that he meant this. There is no specific bequest of money or devise of land: it is of all begot by his wife, that is, of the value or amount he got by her. It is a general intention which pervades the whole will, and I think ought to prevail. I am aware that this is a very difficult subject. The case of *Tiroome*and *'touch,*cited from 10 *Vesey,*596, by Mr. Ward-law, is very strong; but there are cases cited in that which look the other way. *See oventry*and *Coventry,*2 *Aik.*3G5. The lord chancellor Eldon also makes a distinction, *p.*612, (in which he follows Lord Hardwicke) that where a man hás agreed to lay out money in land generally, and devises his real estate before such purchase is completed, the money agreed to be laid out will pass to the devisee of the real estate; which is different from the case of an agreement for a particular tract, which fails because a good title cannot be made. There the devisee is not entitled to the money in tended'for the purchase. There are many other important cases on this intricate subject; but looking on it as I do, as a question of intention, and believing that intention to be sufficiently clear for the wife. I must so decide. I acknowledge however that I am not very confident in this opinion.

The nest question relates to the sum of 200 dollars, which the testator bequeathed to his wife, payable annually on the 1st of March. He died August, 1821: Is she entitled to any part of the sum on the 1st March, 1822? The general doctrine is, that an annuity is an entire thing and cannot be divided. I believe the equitable construction will be to say that the legatee is entitled to the annuity of *$*200 in every August, but not pa}'able until the succeeding March. This gives the full annuity and relieves the estate as to the .time of the payment. If the executors neglect to pay the annuity accruing on the first of hi arch in eyery year, she shall be at liberty to enforce the payment.

As to the security required of the widow, for the fourth coming of the property at the termination of her life estate, I am not willing to order that: it will be an imputation upon her in relation to her own child, and that without any allegation or proof of misconduct. But it is right that she should sign a *276schedule of what comes to her hands for her life, and that is; ordered to be done accordingly. Let .it be referred to the-commissioner to adjust the matters of account between the parties, and particularly to ascertain and report the amount of the annuity now due to the complainant, and the amount of visible property and choses in action to which he may be entitled under the foregoing construction of the will, and to prepare a schedule, for her signature, of the property held by her during life., under the will.

The defendants appealed on the grounds,

That choses in action do not pass under the term *property^*where there are personal goods.in possession to satisfy the be* quest:

That if they should be held to pass by the terms of this will, the legacy was adiemed as to the choses in action, *whicli-*were collected or disposed of by the testator after the making of his will.

*P. II. Wardian>,*for appellants,

*,M‘Duffle,*and *Terry,*contra.

Chancellor *Desaussure.*

We have examined this case with attention. It is not clear of difficulties; but looking at the question as one of intention, which ought to prevail if possible in the construction of wills, we concur in the views taken by the circuit court. It is therefore ordered and adjudged that the decree of the circuit court be affirmed.

Chancellors *Gaillard, James,*and *Waties,*concurred.

Chancellor *Thompson,*

dissenting. The decree *of the*circuit court is predicated on the idea that it was the intention of the testator to give to his wife the note in the bill mentioned.. There can be no doubt but it was his intention at the time of making the will; but as the will is ambulatory until the death of the testator, he had a right to alter it if he pleased, and his having disposed of the note in his life time was an acLmptiq^ of the legacy.