[Present, Chancellors Rutíedqb and James.]

NOVEMBE. 1806.

#### Walter Ewing, a Minor, by his next friend, *vs.*James Ewing, Executor of Adam Ewing.

The intention of the testator is to be collected from his whole will. And though a clause in one part ofhis will may appear, if taken singly, to exclude a child horn after the execution ofhis will, and before his death; yet another clause, which, by its generality and by its provi» sions includes such child, shall prevail, and let him iptcj a chare of the estate.

THE object of this bill was to obtain the opinion of the court on a clause in the will of the late Mr. Adana Ewing, deceased. "

The bill stated] that Adam Ewing, the testator, was formerly a merchant resident in Charleston, and' died on the October, *1796,*leaving the following children, viz. Robert, who is now of age ; Agnes, (Mr. Johnston’s wife,) nearly of age ; Jane, who will be 21 in August; Margaret, 18 years old; Elizabeth, 17 years old, and Walter, now 15 years of age.

That the testator, had previously, vi?, on the 2d. April, 1792, made his last will and testament, and devised his property as follows, viz: To his wife Jane, all the money, goods, wares, &c. coming to him from .her father’s and mother’s estate. That in consequence of an agreement entered into the 17th March, Robert Ewing, as attorney for Walter Ewing Maclore of Glassgow, engages to pay his (the testator’s) heirs, executors and administrators, for his share and interest, in the concerns of Walter Ewing, & co. of Glasgow, and Robert and Adam Ewing of Charleston, the sum of 3683/. 14s. sterling, with legal interest from the 1st July; which said sum he (the testator) orders to be kept entire and undiminished until his children, whom he particularly names, and such child as his wife may then be pregnant with, shall respectively attain 21 years or be married; and that the annual interest thereof, (except a email annuity otherwise disposed of) should pe paid to hi?. *452wife Jane, for her maintenance, and the education of his children; and that if any of his children attain 21 years, or. be married, they shall be entitled to a proportionate sharp of the aforesaid sum *;*they securing to the testator’s wife tke jn(;eresi: 0f their said share, if she demand it. He also devises all his other property to be equally divided among his children, and nominates Robert Ewing of Charleston, his brother. James Ewing of Greenock and his wife Jane, his executors and executrix. The will is signed by two witnesses, and dated the 2d April, 1792.

The' bill further states, that the testator’s will being subscribed but by two witnesses, was inoperative for the disposition of his real estate, but was valid as to the bequests of the personal estate.

' That the said Walter Ewing, one of .the testator’s children, being born >in his father’s lifetime, some considerable time after .the making of the will, (his mother not being pregnant with him at the time of its execution) it was doubted whether he was entitled under the will to any share or proportion of the personal estate, though he was of the real estate of his father.

The object of this bill is to clear up that doubt, and to establish his right to an equal proportion of the personal estate, with his brothers and sisters.

The answer of the defendants admits all the facts stated in the bill, and submits to the court, whether the complainant, Walter Ewing was entitled to any, and what part of his fathers personal estate,-under his last will, and tes-áment. ;

Mr. Ford argued this case for the complainants.-

It appears on the face of this will that the testator was *mops c'oncilii.*Therefore the most liberal exposition is to be made so as to meet his substantial intentions; those purposes which every father is supposed to have in view, and which this testator has strongly disclosed on the face of his will, viz. to provide equally for his children. See the case of Brook vs. Ashby, 3 Burr. Lord M’s. opinion,.The *453will was written by the testator’s own hand, and the decision there went on the intent, collected from analogy, and from the whole will | and that the testator intended th,e same estate to the after born sons as he had given to the prior born.

There is a strong feature manifest on the face of this will, viz. to provide for the children he then had, and such as he expected to be born. The child he expected when he made his will was born, but died, and another was bom af-terwards, who is the present plaintiff. He does not indeed come under the -literal description, “ the child my wife may now be pregnant with,” but he comes within the spirit and scope of the provision.

He sppaks in other parts of his will of his children generally, and those general words would doubtless include the plaintiff. Now it would be absurd so to construe the will as to include the plaintiff in the provisions made out of the income of the estate for support^ and exclude him from a share of the said capital for a portion. It would be sacrificing the natural intention of the testator to a critical adherence to his words. This would reverse the sound rules of construction!

Again, he does not allot specifically an aliquot part of his estate to the children, as they were at the time of making his will, or as they were to be at the time of his death, but as they should be at the time of the children’s coming of age, in succession, and the aliquot share was to depend bn the number that should “ then be alive.? This therefore refers plainly to a state of the family, which opens the door to construe this will according to the natural intent of an affectionate father, instead of the constrained operation of the words he used; and to admit his equal offspring to an equal share of his parental bounty.

It cannot be believed that a testator in providing for unborn children could intend to leave after born children unprovided for.

The very solicitude displayed precludes the intendment. The law may easily ingraft upon this manifest solici*454tude for unborn offspring, an equal regard to after begotten children.

In making such a construction, it would, (as the case actually is) leave the other children with precisely the same share of the estate as that which the testator contemplated. He requires that his children then living should let in a child expected to be born, to share with them. The child wasborn and died, and the plaintiff bom after, stands but in the place the other would have occupied, had he not died, and that under the literal provisions of the will.

The law has saved to posthumous children, the provisions made for children, both by deed and will.

By deed or marriage settlement, it is done by the 10th and 11th W. 3, c. 16.

By will — 8th sec. of act of 1789, (Public Laws, p. 191.)

Now where a father by his will makes no provision for a child whereof his wife may be ensient at the time of his death, the law presuming he would have provided for such child, had the case been in his mind, attributes ’that intention or purpose to his will, and ingrafts the name of that child in the will.

This institution of the law is bottomed on the very priiir ciple of nature, under which we now contend for the plaintiff: That a parent will not disinherit his offspring.

And the constructive inference is stronger under this will than that on which the law is founded : for here the testator has said enough to evince that such disinherison was never his intention. He has given a key to unlock the purposes and true intent of his will-.

So that in following out the presumption of the statute law, we give the court in this will a less equivocal ground on which to raise the intendment, than that on which the law proceeded.

The law goes on the natural presumption only.

We have all the natural presumption in our favor, and also a manifest solicitude of the testator disclosed on the lace of his will, not to leave any of his unborn children unprovided for.

*455This certainly amounts tó “ a strong probable implication,” and it needs not to be “ a necessary implication,” So ruled by tbe court of king’s bench, in the case of Ben-dale and Bendale. *5*Burr. 2608, where a probable implication only in the case of a will, carried an estate for life.

But the case of White vs. Barber, in 5 Burr. *9YQ3f*comes up in principle fully, and in its features nearly to this case. It was a case out of Chancery. The testator Presgrave, had but one child when he made his will; but after the making of it, and before his death, he had two other sons born, and died without altering his will, leaving three children alive. He had through the course of his will carefully provided for the case of his wife, being encient with one or more children at the time of his decease — but this case did not happen.

The judges of B. R. certified their opinion that the provision made by the testator being for children that were to be born after the making of his will, he certainly intended to coinprehend all the children that should be born of his then wife, whether before or after his decease, and therefore notwithstanding the defect of expression in his will, the children, born before the testator’s death will be entitled from the.testator’s manifest intent, to take a share of his estate.

The executors submitted the case to the court without argument.

Chancellor Rutledge

afterwards delivered the decree of the court.

The testator made his last will and testament, and died some years afterwards, leaving it in full force. The complainant Walter Ewing was not born at the time of making the will, but was born before his fathers death.

The clause of the will we observe was written with his own baud. Nothingis so clear,as thatthe construction must be agreeable to the intention of the testator, collected from his -will. The obvious and manifest intention of the tes*456tator in this case throughout his will, is to make an equa distribution of his estate amongst all his children. It is true that in the first part of the clause under consideration, he directs the money therein mentioned, to be kepi entire and undivided until his children therein particularly named, and the child or. children his wife might then he pregnant with, shbuld respectively attain the age of 21 years, dr be married; and by a rigid construction of the words, if notaferwards explained, the complainant might possibly be excluded froiifa, share of that money, he not being the child that testator’s wife was then pregnant with, but bom some years after.; But in -the subsequent part of the clause the testator fixes the period when a distribution is to be made, and he thus compleatly explains his intention by declaring that the money shall be divided according to the number of his children, who may then be alive, share ¿nd share alike; By which latter words the ambiguity of the former is clearly removed, and the complainant must indubitably be let in for aii equal share of that .fittoney, with the rest of the testators children; and is con* sequently entitled to maintenance and education in common with them. "

It is therefore ordered and decreed, that the executors (when a division of the money shall be made) do include the complainant in such division, and retain in their hands an eqiial share thereof for the use and benefit of complainant*