#### Ex parte, William Warner and Amanda, his Wife.

Under the act of 1789, providing for posthumous children, the child takes only a share of the particular interest or estate, whatever that may be, which is given to the child provided for by the will.

A limitation in a will, giving over the property in the event of either of the testator’s children dying without issue, cannot directly apply to the share given *by*the law to a posthumous child — ho does not take by the will, but by the law.

*Before Ids Honor Chancellor HARPER, at Colleton, February Term,*1836.

The petition sets forth that on or about 20th January, 1834, a bill was filed by Catharine Pendarvis, the widow, and the petitioner, Amanda Pendarvis, (now Amanda Warner, wife of the petitioner, William Warner,) Joshua I). C. Pendarvis and Wm. Tj. Pendarvis, the children of Joshua Pendarvis deceased) against William Murray, administrator with the will annexed, of Joshua Pendarvis; wherein, *inter alia,*it was set forth, that Joshua Pen-darvis, being possessed of certain lands and negro slaves, by his last will and testament duly executed, bearing date 6th November, 1832, devised as follows, to wit:

1st. “I give and bequeath unto my son Joshua D. C. six negroes, named Isaac, Tom, Jim, Harriet, Betty & Selina. 2ndly. It is my *155desire that tlie balance of my negroes be equally divided between my wife Catharine; my daughter Amanda, and my son Joshua D. C. 3rdly. It is my desire that the balance of my estate, except the lands, be sold, and after taking out of the amount of said sales |500, to be put on interest for the education of my son Joshua D. C., the balance to be equally divided between my wife Catharine, my daughter Amanda, and my son Joshua D. C. 4thly. And in the event of either of my children dying leaving no issue, in that case it is my will and desire, that his or her share shall go to the surviving one. 5thly. And if division of my lands between my heirs should be necessary or required, it is my desire that my executor should cause it to be done by having it divided, and each lot appraised.”

The testator died soon after, leaving his said will in full force and unrevoked. The executors named in the will having renounced, administration with the will annexed was granted to William Murray. The testator owed no debts. He left surviving him his widow Catharine Pendarvis, and two children, Amanda and Joshua Pendarvis. Some time after his death, and within the legal period of gestation, a posthumous child was born to the said testator, who was called William L. Pendarvis. The prayer of the bill was for account and partition of the estate of Joshua Pendarvis deceased, and for directions as to the manner of division, and the mode of contribution from the other children, to snake up the share of the posthumous child.

The answer of William Murray, administrator with the will annexed of Joshua Pendarvis, admitted the facts stated in the bill, prayed the direction of the court as to the division of the estate, the mode of contribution among the children, how the specific legacies were to contribute to make up the posthumous child’s share, whether the widow Catharine was entitled to a share of the real estate -of the testator, and whether guardians should not be appointed of the minors. Whereupon, on hearing of the cause at January term, 1834, it was decreed that William Murray should be appointed guardian of the persons and estates of Amanda, Joshua I). C. and Wm. L. Pendarvis, that a writ of partition should issue to divide the six negroes specially bequeathed to Joshua D. *156C. Pendarvis into three parts, one-third whereof was to be assigned to the posthumous child, Wm. L. Pendarvis, and the other two-thirds to Joshua D. C. Pendarvis. That the rest of the testator’s slaves and lands should be divided into three equal parts; one-third to be assigned to the widow Catharine Pendarvis, and the remaining two-thirds thereof to be divided between the three children; that from the sale of the rest of the personal estate directed by the testator, the sum of $500 specifically bequeathed to Joshua D. C. Pendarvis, should be first deducted, and one-third of the sum of $500 be paid to the posthumous child Wm. L. Pendarvis, and the remaining two-thirds of *$500*to Joshua *D.*C. Pendarvis; the rest of the purchase money to be divided into three parts, one-third to be assigned to the widow, and the remaining two-thirds to the three children, to be equally divided between them; and that the administrator should account to the parties in interest for their individual shares thereof.

The petition further stated, that since the date of the aforesaid decree, the said Amanda has intermarried with the petitioner, Wm. Wamer, the estate of the testator had been divided pursuant to the terms of the decree, and the shares of each legatee had been allotted and assigned. The petitioner, Amanda, was half sister to Joshua D. C. and Wm. L. Pendarvis, by the same father, but different mothers.

The posthumous child, Wm. L. Pendarvis, died in October 1835, aged about two years; and Wm. Murray, his guardian, took out letters of administration on his estate. The petitioners claimed that under the limitation over in the testator’s will, viz: “4thly, and in the event of either of my children dying leaving no issue, in that case it is my will and desire, that his or her share shall go to the surviving one,” the estate real and personal of the posthumous child, Wm. L. Pendarvis, made up by contribution from the shares of Amanda and Joshua D. C. was divisible between them, and that they were entitled by law to be reinstated in the same situation as if the posthumous child had not been born. And conceiving themselves thus entitled, they were desirous of having a partition of the estate of the said William L. Pendarvis between them, according to their respective legal rights.

*157After hearing argument of counsel, the Chancellor delivered the following decree, viz:

Joshua Pendarvis, by his will, gave to his son Joshua D. C. six negroes, by name, and directed the remainder of his negroes to be divided between his wife Catharine, his daughter Amanda, and his son Joshua D. C. The will then directs the rest of his estate (except the lands) to be sold, and after reserving $500 for his son Joshua’s education, the balance to be divided between his wife Catharine, his daughter Amanda, and his son Joshua D. C. And then provides, “4thly, and in the event of either of my children dying leaving no issue, in that case it is my will and desire, that his or her share shall go to the surviving one, — 5thly, and if division of my lands between my heirs should be necessary or required, it is my desire that my executor should cause it to be done, by having it divided, and each lot appraised.”

Amanda was the testator’s daughter by a former marriage, and the half sister of Joshua. After the testator’s death, a posthumous son was born, and named ¥m. L. On a bill filed for the purpose, by the decree of this court, the estate was directed to be divided, allotting to the posthumous child Wm. L., one-third of the specific legacies given to Joshua, and one-third of two-thirds of the rest of the estate given to the children. The posthumous child died an infant in 1835, and William Murray, who is made a party to the petition, has administered on his estate. The petitioners, William Warner, and Amanda his wife, (formerly Amanda Pendarvis, the legatee,") claim that by the death of the posthumous child, and under the provisions of the' testator’s will, which in the event of either of the children’s dying without issue, gives his or her share to the survivor, they are entitled to receive back so much of the infant’s estate, as was made up by contribution from Amanda’s share of her father’s estate, and to be put into the same situation as if the posthumous child had never been born. If they cannot sustain this claim, the whole must go to the infant’s mother and brother of the whole blood.

The limitation of the testator’s will, giving over the property in the event of either of his children’s dying without issue, cannot directly apply to the posthumous child. He did not take by the will, *158but by law. His existence was not contemplated by the testator, wlio only had reference to the children living at the time of the will. It is as if the will had said, “and in the event of the death of my daughter Amanda, or my son Joshua’s dying without leaving issue, his or her share to go to the survivor.” How could this be applied to the posthumous child? However reasonably we may conjecture that the testator would have a similar provision in reference to his share, if he had contemplated his existence, yet for this Court to supply it, would be to make the will. The law provides for him only on the supposition of his riot being contemplated by the will, and that no provision of the will is applicable to him.

The idea, however, seemed to be rather of this sort — that the posthumous child takes only a proportion of the share or interest, whatever that may be, which each of the other children takes in the testator’s estate; that Joshua and Amanda took their shares, subject to the contingency of their going over in the event specified, and that the posthumous child must take, subject *to*the same contingency. Whatever truth there maybe in this, it can have no effect in the present case. The terms of the act of 1789, providing for posthumous children when they are not provided for by the will, are: “If no provision shall be made by the will of the testator for any child or children that may be born after his death, such child or children shall be entitled to an equal share of all real and personal estate given to the other child or children, who shall contribute to make up such share or shares, according to their respective interests or portions, deriving to them under such will.”

Now under this clause, I suppose the posthumous child takes only a share of the particular interest or estate, whatever that may be, which is given to the child provided for by the will. For instance, a father gives to his son A for life, and at his death to a stranger. The posthumous child takes only a share of A’s life estate, and holds for the life of A. Then upon the death of the posthumous child, the estate does not, upon that event, go over to the stranger, by the limitation of the will. It is transmitted to his legal representative and next of kin, to be held until the termination of the estate *pur autre vie.*So if the gift were to a stranger for life, and at his death to the testator’s son A, the posthumous son *159would take a sliare of A’s remainder, and upon his death would transmit it to his legal representative — if the gift were to a stranger absolutely, but if ho should die having no issue, then to testator’s son A, a question might arise whether the possibility thus created in favor of A, were such an interest or estate as is embraced by the terms of the Act, and whether the posthumous child were entitled to a share of the benefit of this contingency. Or if the gift were to the son A absolutely, and if he should die having no issue, to a stranger, whether upon the death of A without issue, the posthumous child’s estate should go to the stranger. But this question does not arise in the present case. If the devise were to Amanda or to Joshua for life, with remainder to the other, he would take a share of one’s life estate and of the other’s remainder, and his estate would be absolute. If the interest which the devisee over takes under an executory devise, be such an one as is embraced by the Act, then he would take a share of the estate of one, and of the contingent benefit secured to the other, and his estate is still absolute. If it be not, and these are regarded as devises of the absolute estate to Joshua and Amanda, with executory devises over on the event specified, then he takes a share of the absolute estate of each, and must transmit it to his legal representatives. And it appears to me not subject to the contingency of the will. If Joshua had died without issue in the life-time of "William, would the share which William derived from him have gone over to his sister1? If the will had, in the event of Joshua and Amanda’s both dying without issue, given over the estate to a stranger, and both had died without issue in William’s life-time, must the entire estate have gone to the stranger? It would be defeating the entire purpose of the Act, thus to construe it. But this question does not arise in the present case, and it is not therefore properly decided. If Joshua should hereafter die leaving no issue, then the question may be made whether the entire estate given to him by his father’s will, including the portion received by William, and which is now to be distributed between himself and his mother, shall go over to Amanda — that is to say, whether William took subject to the contingency.

*160It may be observed that the land is not devised by the will; Only a power is given to the executors in relation to the division of it. William therefore took his share of that absolutely by inheritance, and must transmit it in the same way.

It is ordered and decreed, that the petition be dismissed with costs.

The petitioners appealed from the decree of the Chancellor, and moved the Court of Appeals to reverse the same, on the ground that the posthumous child, William L. Pendarvis, did not take an absolute estate in the property allotted to him under the act of 1789, but the same contingent estate as the other legatees under his father’s will; and that upon his death, the other legatees are to be reinstated, in the same situation as if the posthumous child had not been born.

*H. A. De Sdusswre,*for appellants.

*G. G. Memminger,*for appellee.

This case was argued before all the Judges, sitting as a Court of Errors, and the opinion of the Court was delivered by Chancellor Harper, as follows:

The Court is satisfied with the conclusion of the Chancellor in this case, and the decree is therefore affirmed.