The substance of Thomas Stephenson's (293) will is a devise to his son William in fee, a devise to his wife, for life, of part of the land, and, taking notice that his wife is ensient, a devise of that part to the child, if it should be a son, with cross-remainders to him and William. In the event of the death of both without issue, he devises part to his nephew, John Stephenson, in fee, and part to his daughter Polly. William, the son, and Polly, the daughter, are both dead, without issue. The testator's wife was pregnant, but instead of a son she was delivered of a daughter, who is the only remaining child of the testator, and is heir at law to William and Polly. This ejectment is brought by the nephew, John, against the posthumous daughter, and the question is whether the limitation over to John can take effect, inasmuch as the contingency, viz., the birth and subsequent death of a son, upon which it was made, never happened. The effect of a construction of the will according to its words, and, as I think, the apparent intent, will give (294) to the testator's only child the land in controversy. An opposite construction will, according to all appearance, disinherit this child in favor of a nephew — a child for whom it was impossible the testator could cherish other feelings than those of parental tenderness, and the purity of whose lineage he asserts by the provision made for the eventual birth of a son.
It is not within the range of probability that a man, knowing his wife to be pregnant, should deliberately make an ample provision for the child, if a son, and intend at the same time that it should be wholly unprovided for if a daughter; but it is probable that he omitted to provide for a daughter, only because such an event did not present itself to his contemplation, and that his mind was diverted from it by arranging the limitations over in the event of the birth of one son, and the death of both without issue.
The testator, when he made his will, had a son and a daughter to provide for; and, confining his views exclusively to the chance of having another son, he prefers the interest of these two to that of his daughter Polly; but if both his sons die without issue, he, under the supposition that he should then have but one daughter, which must have been so, unless his wife had twins, calls in his nephew, John, to share the land with her. In such a state of things, he might probably think there was enough for both. But had he foreseen that, instead of two sons and a daughter, he would have a son and two daughters, it may be conjectured that, though he might postpone them to William, he would, at least, have placed them on an equality with each other. It has been argued, on the part of the nephew, that where a devise is made *Page 148 after a preceding executory limitation, or is limited to take effect on a condition annexed to any preceding estate, if that preceding limitation never should arise or take effect, the remainder (295) over will, nevertheless, take place, the first estate being considered only as a preceding limitation, and not as a preceding condition to give effect to the subsequent limitations.
That words of condition have been construed as limitations instead of contingencies, appears from many cases cited for the plaintiff, and from none more distinctly than Jones v. Westcombe, in Eq. Ca. Ab., and Strathanv. Bell, in Cowp.; the first of which is a leading case, which has been cited in almost every subsequent one. In that case the intention could not be doubted that, failing the child, the estate should go over to the devisees, in all events. They were the next objects of the testator's bounty, and there were no children to be provided for. In the other case the testator had a wife and a daughter, and he devised to a son, of which he supposed his wife to be ensient at the time of making his will, when he should attain his age of twenty-one years; but if a daughter, then one moiety of his estate to his wife, and the other moiety to his two daughters (there being one alive at the time) when they should attain their ages of twenty-one, with survivorship as between the daughters; if both die before twenty-one, their moiety to go to the wife and her heirs, forever; if she died, her share to go to them. The wife proved not to have been ensient; the testator died, and so did the daughter, without issue and under age. It was held that the wife should take the whole estate.
In the last case there were no children, and the words were construed as a limitation to carry the estate to the wife, rather than as a condition, which would perhaps have given it to a distant heir at law. The construction was evidently made to support the intent; and, although I will not say that words have in every case been construed as a limitation or condition for the sake of supporting the intent, yet, in the only case I can find, where children have been born after making the will, who (296) were not provided for, or probably thought of, when the will was made, such a construction has been made of the words, either to construe them as limitations or precedent conditions as would most effectually guard the interest of the afterborn children.
White v. Barber, 5 Burr, 2703, is a very strong instance to show how far a court will go towards effectuating the intention, even by supplying words for that purpose. There the devise was to such child or children as the testator's wife should happen to be ensient with at the time of his death. The testator had *Page 149 only one son at the time of making the will; two were born after the will was made and before his death, but his wife was notensient at the time of his decease; yet the Court held that it was manifestly the intention of the testator to comprehend all the children which should be born of his then wife, whether before or after his decease; the Court thinking that a father, in making an express provision for any children his wife should be ensient with at the time of his decease could never intend to give his estate to such children in exclusion of, or to his nephew (as the event has happened), in preference to any child or children that might be born in his lifetime. 5 Burr., 2703. In another case, words have been construed as a condition precedent, rather than a term should go to a devisee, a grandson, where there was a daughter born after making the will. There a term was devised to an infant in ventre sa mere, if it should be a son; and if it should be a son and die under age, then to the testator's grandson. It proved a daughter, and it was adjudged, upon special verdict, that the executrix, and not the grandson, should have the term, because the grandson was not to take but upon a precedent condition, viz., the birth of a son, which did not happen. Grascottv. Warren, 2 Eq. Ca. Ab., 361. If the position I have advanced needed further confirmation, it will receive it from Doev. Shippard, Douglas, 75. There the words were, "and in case my said daughter Rachael shall happen to survive (297) the said Thomas Shippard, her husband, then upon trust," etc., after which follow the limitations over after the daughter's death. It happened in event that the husband survived his wife, and it was held that the limitations over did not take effect, the contingency affecting all the limitations and operating as a condition precedent.
The case was argued and decided on the ground of intention, to support which the words were construed a precedent condition. With the same object in view, the words in Jones v. Westcombe, 1 Finch Ca., 316, were considered a limitation. A court may supply the omission of express words if they can discover a plain intent; otherwise, they cannot. And, although it ought always to be considered what a testator meant to do, as well as what he actually has done, and we are not at liberty to decide according to what he probably might have done, had a different view of events presented itself to his mind, yet the title of the heir must prevail against mere conjectures.
It is upon this principle, I think, that the contingency upon which the testator designed his nephew, John, to take the estate, has never happened; that the fee devised to William, the son, was never displaced or modified, because a son was not born; *Page 150 and that, upon William's death without issue, it descended upon his heir at law. My opinion, therefore, is that judgment be rendered for the defendant.