#### B. F. Pegues, Executor, *vs.*C. M. Pegues and others.

*Wills and Testaments*— Legacy *to Deceased Child.*

The Act of 1789, $ 9, 5 Stat., 107, was intended to provide for the case of a lapse by the death of a child, after the execution of the will of the father or mother. The Act does not apply where the child was dead when the will was executed.

BEFORE DUNKIN, OH., AT MARLBOROUGH, FEBRUARY. 1860.

William Pegues, Sr., died in 1857, leaving of force a last will and testament, made and executed on the 3d May, 1852.

By the second clause of his will, he 'bequeathed as follows, viz: “I give and bequeath to my son, Malachi Pegues, the sum of $1,500;” and the twelfth clause was in these words, viz: “All the rest and residue of my estate, not here-inbefore devised and bequeathed, I will and bequeath to all my children, (except my son, Claudius Pegues,) and my grand-son, Joseph Pegues, the son of said Claudius Pegues, to be equally divided amongst them, share and share alike. The share given to my grand-son, Joseph, is given to him, instead of his father, in compliance with his father’s request.”

Malachi Pegues, the son referred to by the testator, in the second clause of his will, was already dead at the time of the execution of the will; he having died in 1849.

The children of Malachi Pegues claimed the pecuniary legacy of $1,500, under the second clause of their grandfather’s will, and also the share of the residuum to which their father would have been entitled, had he survived the testator. This claim was resisted on behalf of infant children of the testator, and the executor filed this bill for instructions.

*555The single question made by the pleadings, and submitted to the Chancellor on circuit, was as to the proper construction of A. A. 1789, sec. 9, (5 Stat., 107,) which is in the following words, viz:

*“And. be it further enacted,*by the authority aforesaid, That if any child should die in the lifetime of the father or mother, leaving issue, any *legacy given*in the last will of such father or mother shall go to such issue, unless such deceased child was equally portioned with the other children by the father or mother when living.”

Dunkot, Ch. By the ancient Act of distributions, A. A. 1712, (2 Stat., 523,) it was provided, among other things, that the surplus of the intestate’s estate should be distributed one-third to the widow, and the residue, in equal portions, among the children, and such persons as legally represent such children, “in case any of the said children be then dead,” unless the child has been advanced. In the same manner, it is provided by the A. A. 1791, (5 Stat., 162,) that if the intestate shall leave a widow, and one or more children, the widow shall take one-third, and the remainder be divided between the children, (if more than one,) the issue of a deceased child taking among them the share of their parent. A like beneficent spirit is manifested by the Act of 1789, in securing to the issue of the child of the testator, the bounty which was intended for the parent. Any legacy given in the last will of a father or mother to a child, shall go to the issue of such child, if the child should die in the lifetime of the parent; the Act is remedial. The object is to secure to the offspring what was given to the ancestors; but which gift could not take effect by reason of the death of the ancestor. All the legislative proceedings look to what is to be done on the death of the testator or intestate; and all mean what is expressly declared by the Act of 1712, that “in case any of the children be then dead,” the issue of such deceased child shall take, among them, the share of the estate *556to which the parent would have been entitled, if he had survived the testator.

The Court is of opinion that the issue of Malachi Pegues, deceased, are entitled to represent their parent, and to take the legacies given to him under the second, and also under the residuary clause of the testator’s will, and it is so declared.

It is ordered and decreed, that it be referred to the commissioner to take an account of the transactions of the plaintiff, and that he report thereon, costs to be paid out of the estate of the testator; and parties to be at/liberty to apply, at the foot of this decree, for any further order, which may be necessary for carrying the same into effect.

The defendants, Catherine E. Pegues and Emma W. Pegues, appealed on the grounds:

1. That the death of Malachi Pegues occurring before the execution of the will, the legacy of $1,500 in the second clause of the said will is not saved to his children by the Act of 1789.

*2.*The terms of the Act of 1789, sec. 9, do not include the case of a legacy void *ab initio.*

3. The children of Malachi Pegues have failed to bring themselves within the terms of the Act, by showing that their father was not “equally portioned with the other children,” by his father, “when living.”

4. Even if the pecuniary legacy of $1,500 is saved to the children of Malachi Pegues by the operation of the Act of 1789, the benefits of that Act cannot be extended so as to entitle them to a share in the residuum, under the twelfth clause of their grand-father’s will.

*Inglis,*for appellants.

Townsend, contra.

*557The opinion of the Court was delivered *by*

Johnstone, Ch.

I think the construction which has been generally put upon the statute, has been that it was intended to prevent the consequences of lapse arising from the death of the legatee after the execution of the will.

The language of the statute, although very loose, seems to bear evidence of such an intention. It contemplates the case of a legacy *given:*— that is, a provision made for the child of such a character as would be valid if the will should come forthwith into operation. Such a legacy being *given,*the statute goes on to provide, that if the child (thus provided for) *should die,*then the legacy *given*to him shall go to his issue — unless, &c. This language seems to be intended to describe a case (not uncommon), where a legatee *should*happen to die, after the execution of a will in his favor, by which casualty his personal enjoyment of the intended bounty would be frustrated. I can hardly suppose the legislature contemplated the case of a man’s giving a legacy to a dead child — or that it intended to remedy the effect of such an absurdity.

It may be very well conceived that it intended to make good a legacy which had *become*void, without going the length of supposing it intended to give effect to one which was void *ab initio.*

There is room for another remark upon the statute. It provides that the legacy to the child shall be made good to the child’s issue, “ unless such deceased child was equally portioned with the other children, by the father or mother” (who made the will) “ when living.” Advancements are, by law, to be taken into consideration only in cases of intestacy. A testator may make what provision he pleases among his children, — though it result from gifts, previously made by him *aliunde*the will, that he has dealt unequally by them. The legatee in this case would have taken the whole of his legacies, mentioned in the will, had he been alive when the will was made, and had he survived his father. When the stat*558ute gives his legacies to his children upon condition that he has not been fully advanced; does it not refer to advancements *made after the will;*and which may be considered as an equitable satisfaction of the legacies it contains ? And if so, does it not follow, that it contemplated the case of the legatee being *in esse*at the date of the will ?

It is ordered, that the decree, so far as it adjudges the legacies provided in the second and residuary clauses of the will for Malachi Pegues, to his children and issue, be set aside and reversed ; and it is decreed, that said issue and children are not entitled to the same or any part thereof.

Ordered, that the cause be remanded to the Circuit Court.

Wardlaw, J., concurred.

O’Neall, C. J.,

said — I dissent, and concur in Chancellor Dunkin’s decree.

*Decree reversed.*