[Present, Chancellors Rutiedee, James and Tkomfsow.]

#### The Executors, Devisees and Legatees of Richard Ellis, deceased, *vs.*the Widow, Devisees, &c. of Richard Ellis.

A testator devises his real and personal estate, to be divided among, his wife and his six children, whom he names, in the manner prescribed by his will, and in case of the death, of any of .his children under age, or unmarried, he directs the share of such of them so dying, to be divided among the survivors, in the manner directed.

After the making the will, and 18 months before testator’s death, lie has a son born, but dies without altering his will, or making any provision for such after born child. This will is too precise to be dist turbed. The court cannot give any relief, to the unprovided child. It would be to revoke the will,

THE object of this bill was to obtain the opinion of the court, on the last will and testament of the deceased Richard Ellis.,

The hill stated, that the testator made his last will on *557tbe *lYth*June, 1802, wherein he devised alibis real estate to his four sons Charles, Richard, Edmund and William, except some town lots to his two daughters Elizabeth and Sarah. His personal estate, he directed to be divided be-, ■ • • tween his wife Sarah, and his six children, Elizabeth, Sarah, Charles,'Richard, Edmund and William, (who were all his children then living.) share and share alike, so that his wife might have a seventh part during her life, and at her death to be divided between his two sons Edmund and Willikm. The testator directed that after the allotment of the shares to the two daughters, the sons shares should be kept-together, till his son Charles should attain. 21 years of age, when a division should be made. And in case of the death of any of the children without lawful heirs of their body, their share of the estate is to be divided among the surviving children.

MAY, 1808.

That after making the will and before the death of testator, to wit: On the 1st day of May, 1803, another son was born, called Wilkinson Ellis, who is now living, and is one of the complainants.

That the testator died on the 20th October, 1804, leaw ing alive his widow, and the six children mentioned in the will, and also the said Wilkinson Ellis, without having altered his will or made any provision for. the said W. Ellis. ‘

Several questions arose, on which the executors desired the judgment of the court to guide their, conduct; but principally what provision could be made for the child Wilkinson Ellis, who was born after the execution of the will, and before the death of the testator; and who therefore did not come within the direct provisions of the statute providing for posthumous children.

The answers of the defendants admitted all the facts, and submitted the questions to the judgment and decision of the court. - -

The cause came to a hearing, and was argued, as follows ;

*558Mr. Parker, for Wilkinson Ellis the minor.

The law will not presume a .man to act against nature? ^ not that be meant tp .disinherit his child» This child was born 18 months before the death of the father? The will was made before his birth. It must have arisen from accident, and comes under the peculiar jurisdiction of this court. The difficulty is to find out what part should goto this child j but the 8th Sect, of the act of 1789, directing the mode of granting probate of wills, &c. affords a clue.

The case of a child born after making a will, before .the death of the testator', is the sanie as ¡pf a posthumous child And that remedial act should be extended to it. It is nearly as probable that a father should know that his wife was pregnant, as that a child was born.

The construction of the words, born after ‘.4 the death,” should be the same as born “ after making the will.” Cases cannot be said to be fully settled till they have become a rule of property. See in 5 Bur. 2703, White v. Barber, bow far the court will go to give relief in such cases. See the case decided in this court, executors of Sjnkler v. legatees of Sinkler. Representatives of T. L. Smith, and others, v. Executors of Benjamin Smith. The words children, construed to extend to grand children. John Drayton, and others y. Executors pf John Drayton, Surviving son construed grandson.

The intention of the testator was to give his wife aq equal share with his children. That intention can be still adhered to, after letting in this child..

Mr. Pringle .for defendants.

The law must act prospectively, and not retrospectively. The presumption of law in favor of a posthumous child, is that the father did not know his wife to be encient.

In the case cited from Burr, the court determined on the ground of the testators intention, appearing on the face of the will. The present application is dehors the will, and founded only on the reasonableness of the case.

*559It would be a revocation *pro tanto*of the will. 7 Bac. 863. 4 Ves. jr. 840, Gibbons v. Gaunt. Doug. 36.

The court cannot go so far, however humane or reason- ° 7 able it may be..

Chancellor Rutledge

afterwards delivered the decree of the court.

The testator, Richard Ellis, has the following clause in his will: “ It is my will and desire that all my negroes, together with what may be bought at the time of the division, and all my stock of every kind, be divided between my wife and six children, (naming them) share and share alike, so that my wife may have her seventh part of my personal estate to her only use, during her life, and at her death, to be divided between my sons Edward and William Ellis, share and share alike.

The will is dated 17th June, 1802. After making the will, viz.’ on 1st May, 1803, and during the life of testator, he had another child born, called Wilkinson. And near 18 months after, viz. on the 20th October, 1804, testator died without altering his will, or making any provision for the child last born.

It is contended for the child, that his case is within the provision of the act of 1789, by an equitable construction of that act. Also that it may be assimilated to the case of White and Barber; but we are of opinion that the act of 1789, only making provision for posthumous children, cannot possibly comprehend or include the present case; this child having been born nearly 18 months before the testators death. Nor is the case of White and Barber applicable, because the testator did not in this (as he did in that) make provision for any child that his wife might be pregnant with at the time of his decease.

This is an extreme hard case, and we wish we could decree a provision for the child, out of the testator’s estate, in any way consistently with his will; but it is couched in such clear and precise words, that it is impossible to decree *560át all, without in fact setting aside the will, for testator has expressly directed His personal estate to be divided be* His wife and six children, whom he names, and his wife is to have her 7th part allotted to her.*

*

 The extreme hardship of this case as well as a few others which had occurred of the same hind, induced the legislature to enact a statute on the 15th day of December, 1808, by which it is provided that from the passing- of the act, any child or children, bom of any person after making and executing his last will and testament, but previous to the decease of such person, shall be provided for as posthumous children are directed to be provided for by the act of the 13th March, 1789, i. e. By letting such child o'r children come in for an equal shard Of all real ánd personal estate given to the other child or children, who shall contribute to make up such share or shares, according to their respective interests under the will

But it may still be doubted whether the acts are comprehensive enough, for they provide only in cases where there are broth ers and sisters, or brother or sister, who shall be obliged to let in an after born child, posthumous or otherwise, to an equal share of the estate. But cases-may arise where a man has no children, and has disposed of his property by will to others, (as in Parsons vs. Lanoe,) 1 Ves. sen. 192, Ambler, 557, and then has children born in his life time, and dies Without altering his will ; and doubts might arise if these statutes prá-videdfor such a case. But the court would strain hard to give relief