dissenting from the majority of tiie court, delivered TOE FOLLOWING OPINION:
The testator, among others, made the following devise: “ I give * * * two sevenths thereof to Mrs. Ann Martin, my half sister, and two sevenths thereof to the children of Mrs. Catherine Boyce, my deceased sister — her granddaughter, Mrs. Dunlap, wife of Col. H. C. Dunlap, to take the share which her father, Wm. Boyce, deceased, would take if living.”
There were three living children of Mrs. Boyce at the time of making the will; her son, Wm. Boyce, father of Mrs. Dunlap, was then dead; and also her daughter, Martha Dunlap, the toother of the minor plaintiff, and former wife of Col. H. C. Dunlap.
The plaintiff insists that her deceased mother was one of the “ class ” designated by the testator as “ the children of Mrs. Boyce;” and, though dead at the making of the will, that, as issue of her deceased mother, surviving the testator, she is *343entitled to the bequest so made to her mother. This is denied by the executors, and issue thereon is made.
This is a most vital question to plaintiff, upon the solution of which depends her entire rights under this will.
The question has been decided by this court in Sheets et als. vs. Grubbs’ executor (4 Met., 341). But we are now asked to review and overrule this case, as plaintiff’s counsel concedes that it is decisive of her rights, if permitted to stand.
This question depends on the construction to be given to two sections of the Revised Statutes. ’ Section 1, article 2, chapter 46 (2 Stant. Rev. Stat., 1, title “Heirs and Devisees"), provides that:
“ When a devise is made to several as a class ' * * and one or more of the devisees shall die before the testator, and another or others shall survive the testator, the share or shares of such as so die shall go to his or their descendants, if any; if none, to the surviving devisees, unless a different disposition is made by the devisor. A devise to children embraces grandchildren when there are no children; and no other construction will give effect to the devise.
Section. 18, chapter 106 (2 Stanton's Rev. Stat., 461, title “Wills"), enacts that — •
“ Ifn a devisee or legatee dies before the testator, or is dead at the making of the will, leaving issue who survive the testator, such issue shall take the estate devised or bequeathed, as the devisee or legatee would have done if he had survived the testator, unless a different disposition thereof is made or required by the will!”
It will be perceived that, under these different sections, it is all essential to plaintiff’s recovery that she establish that her mother be a legatee; for if she was a legatee, plaintiff can recover, though her mother was dead at the making of the will. But if she be not a legatee, then plaintiff cannot take as her descendant or issue; but, if she takes at all, it must be because she herself is a legatee.
Then what is the meaning of the- language, and what is the object of this statute? “ When a devise is made to several as a class," means precisely that if, at the time of making a will, *344a devise is made to several living persons as a class, “ and one or more of the devisees shall die before the testator, the share of such as die shall go to Ms or their descendants.”
But if a child be dead at the making of a will, and it be not named, and there be surviving children, how shall a devise to children include such dead child?
The devise in Shreve’s will is to the children of Mrs. Catherine Boyce. At the date of the will, two of Mrs. Boyce’s children were dead, and three surviving. Were there three or five devisees included by such designation?
This court has virtually decided this question at Its present term, in Renaker vs. Lemon (1 Duvall, 212), opinion by Judge Robertson. In this case Lemon devised his property to his children as a class. After the publication of the will, but before testator’s decease, tM’ee of the children died, and their descendants claimed the shares which their respective parents would have taken had they survived, and, in construing this section 1, article 2, chapter 46, this court says:
“ The sole object of this enactment was to prevent the survivorship of the common law; and such only is its legal effect. Notwithstanding its provisions, a several devise or .legacy to one lapsed into the testator’s estate by the intervening death of the beneficiary, until a subsequent enactment in the Revised Statutes on Wills, chapter 106, section 18.”
And this is a true interpretation. The sole object was to prevent the survivorship where a legatee, being one of a class, should die between the publication of the will and testator’s death, and not by any means to determine who should be legatees, nor to enlarge the meaning of the term children, or alter the long and uniformly established rule of construction that the term children signified and embraced only such children as were living at the publication of the will, and not those then dead.
The sole object of this section was to prevent the survivor-ship of the common law. The object of section 18, chapter 106, was to prevent the lapse of the common law.
It cannot be necessary to construe this as a devise to the dead children to give it effect, because there were living chil*345dren to take it; nor is it necessary, for the same reason, to construe it as embracing grandchildren in the term children; nor should courts give the language of this statute an unnatural construction, by which the surviving children of Mrs. Boyce will be deprived of a portion of their legacy to meet what might be regarded as a hard case.
Then, if Mrs. Dunlap, plaintiff’s deceased mother, was not a child of Mi's. Boyce, in existence at the publication of the will, she was not a legatee; consequently, plaintiff cannot take as her descendant under said section 1, article 2, chapter 46.
Section 18, chapter 106, gives her no aid, because it is intended to prevent a lapse where a sole or several legatee, by name or designation, is dead at the making of the will, or shall afterwards die before testator’s decease.
Should a testator devise, by name or other designation, to a person dead at the publication of his will, this still shows that he intended such person should partake of his bounty, but was ignorant of the decease; and it is but fair to presume, had the testator known of the decease of the object of such bounty, he would have given the bounty to the issue of such deceased person.
The last paragraph of said section 1 (2 Stant. Rev. Stat., 1) clearly indicates the legislative construction and intention, and is conclusive upon this court. When the Legislature declares the term children shall include grandchildren when there are no children, and no other construction will give effect to the will, this is tantamount to saying, but if there are children who can take, and effect can be given to the will without including grandchildren in the term children, they shall not be included, and this for the very potent reason, that, as the sole object of this statute is to prevent the survivorship of the common law, it is not necessary in such case to construe the term children to include grandchildren.
If this construction be correct, it is plain that plaintiff cannot claim as a descendant of her deceased mother, because her mother was not a legatee; she cannot claim as a legatee herself, because she, being a grandchild, is not embraced in *346the term children, there being at the publication of the will surviving children of Mrs. Boyce.
And that such was the understanding and intention of the testator, is to be presumed from the fact, that, immediately after making the devise to the children of Mrs. Boyce, he adds: “Her granddaughter, Mrs. Dunlap, wife of Col. H. C. Dunlap, to take the share which her father, Wm. Boyce, deceased, would take, if living.” This, although “parenthetical,” is a bequest, the words are legatory, and so intended by the testator, and being “parenthetical,” the more strongly indicates testator’s understanding of the preceding terms, and that Mrs. Dunlap was not embraced therein; but it was necessary, “parenthetically,” to make a declaration of bequest, and the very terms used shows that his will was dictated by a skillful legal mind that well understood the signification and legal effect of these terms. It is a bequest in terms that Mrs. Dunlap should take such a share as would be going to her father, if alive, and shows plainly that the testator understood, but for this, she would not take under the designation of “ children of Mrs. Boyce,” and excludes any idea that he intended that any other grandchild of Mrs. Boyce should take under such designation. Suppose Mrs. Dunlap to have brother or sister, will it be contended that such brother or sister is to share with her, as it would, if embraced under the designation of “childrezi of Mrs. Boyce?” Could the .court, ozz such unnatural construction, reduce the legacy to Mrs. Dunlap by a partition with her brothers and sistez’s? If not, then they must take, not as descezidants of Mrs. Boyce, but as legatees, and share equally with all the others, and thus leave Mrs. Dunlap a larger legacy than to any other. This absurdity exemplifies the utter untenability of saying the’ plaintiff, Elizabeth Catheiine Dunlap, takes as legatee under the designation of children of her deceased grandmother. There is nothing izi this case to show that the testator believed, when making his will, that the plaintiff’s mother was still living, but the contrary; for her mother was the deceased wife of Col. H. C. Dunlap, the husband of the legatee, Mrs. Dunlap. Now, had the testator intended that this plaintiff should take as legatee, *347why did he not say to the children and grandchildren of his deceased sister, Mrs. Boyce, he devised; and would this not have been quite as simple and natural as to have added the word “ living” to that of “ children" of Mrs. Boyce?
Again, it is evident that the testator knew that Col. H. C. Dunlap’s,second wife was the daughter of his deceased nephew, Wm. Boyce; he so describes her in the said bequest. It cannot be reasonably doubted, we think, from this, that he knew Col. Dunlap’s first wife was'dead, especially as she was his niece, one degree nearer in propinquity to him than the second wife; and as the plaintiff was her only surviving child, and, as we infer, lived at her father’s, it is but reasonable to infer he knew of her, and that she was living'; and as he specifically bequeathed to Mrs. Dunlap the share which would have gone to her deceased father, if alive, had he intended plaintiff should take, he would have specifically bequeathed to her the share which would have gone to her deceased mother, if alive. It is not necessary that we should conjecture any reason why testator did not provide for plaintiff. He had a right to leave her-unprovided for without any reason. He did not make her a legatee, nor did he make a bequest to her mother-. He may have given her mother in her lifetime what he intended as her share. Be this, however, as it may, he has left plaintiff unprovided for by his will, and we cannot amend it. This presumable intention of testator is in perfect accord with the proper construction of the statute, and disrobes the case of any seeming hardship. And as the statute had been previously expounded by this court, it may be fairly presumed, especially connected with the intrinsic evidence contained in the will, that the proper construction of the statute was then known to the testator.
The philosophy of this section 18, chapter 106, is, that when a testator mentions a legatee by name, he is to be presumed not to know that the legatee is dead; and that if he did know this fact, he would have made the bequest to the descendants of the legatee; and this being at war with the philosophy of the common law, it was intended to modify the common law rule of lapsed legacy. But no such philosophy is to be deduced *348from section 1, article 2, chapter 46. Its philosophy is, that when a testator makes a bequest to several as a class, and persons are living of that class who can take, that it shall be presumed he intended the bequest to such living persons, and those of a different class can take only when there are none of the designated class, and the bequest must fail unless it be given to these persons, because it is presumed that if the testator knew all of the designated class were dead, he would have made the bequest to their descendants. But this presumption cannot be indulged where there are persons of the designated class who can take. The natural and legitimate presumption is, he intended to make the bequest to persons so designated by the class, and not to others of a different class. Hence the entire appropriateness of the language of the statute: “When a devise to several as a class, and one or more of the devisees shall die before the testator,” gives the exact idea, and is to the same precise import, as if the redundant word living had been superadded, and makes the statute legally read: When a devise to several living persons as a class is made, and one or more of these persons should die before the testator, the devise shall go to the descendant of such legatee.
There is nothing in the statute which authorizes the belief that the Legislature intended that when a bequest is made to several as a class, that those dead, and known to be so by the testator, who, if living at the publication, would have belonged to the named class, shall be included with those of the class actually living at the publication. But the reverse is plainly indicated by the declaration in the second member of the section.
Even in last wills it has been uniformly held that grandchildren were not included in the term children, without enlarging words, or controlled by such circumstances as indicated that the testator used them in a synonymous sense. (Jarman on Wills; 2 vol., 51, 3 Am. edit.; Ewing’s heirs, &c., vs. Handley, ex., 4 Litt., 358; Gore vs. Stevens, 1 Dana, 105; Churchill vs. Churchill, 2 Met., 469; Sheets et al. vs. Grubb et al., 4 Met., 341.)
*349There is nothing in this will indicative that testator used the word children of Mrs. Boyce as synonymous to grandchildren or issue or descendants, but the whole will is characterized with a knowledge and intelligence of legal terms and their signification rarely met with.
Believing that a true exposition of this statute was given by this court in Sheets et al. vs. Grubb et al., 4 Metcalfe, and that there is nothing peculiar in the circumstances of this will authorizing us to take from those who are certainly legatees under this will, and give it to one who, it is certain, almost, was not intended by the testator to be a legatee, and who is not so by the provisions of the statute, there is no cause of reversing the judgment.