[PHILADELPHIA, FEBRUARY 1, 1836.]

M'KNIGHT against READ and Others.

CASE STATED.

A testator gave one-third of his estate, real and personal, to his wife, one other third to his children," who may be living at the time of my death;" directing the interest to be paid to their guardians; and as to the remaining one-third, he directed that out of the principal of the one-third of his personal estate, which might remain, after "the foregoing devises were satisfied," his executors should pay certain pecuniary legacies, and if there should not be sufficient money from this source, that his real estate should be sold for the purpose: and as to certain annuities which he gave, he' directed that they should be "paid out of the rent of the third part of the real estate, thereby devised, or out of the interest of the third part of the personal estate, thereby devised, which may remain after the payment of pecuniary legacies; or out of the interest of the proceeds of sale of the real estate." In another part of the will, the testator appointed a guardian for his son A., and a guardian for his daughter B. At the date of his will, and at the time of his death, he had two children, A. and B., and his wife was pregnant with a third child, who was born after his death. Held, 1. That the child in ventre sa mere, was not to be considered as living, within the meaning of the will; and, consequently, that under the act of 1794, the will was revoked, so far as respected the share or proportion of such child, of the estate. 2. That he took one-third of two-thirds thereof, which was to be deducted, in the first place, from the whole amount; that the remainder was to be divided into three parts; of which the widow was to have one-third; the two children, A. and B., one third between them, and the collateral legatees, the remaining third. 3. That the collateral legacies were to abate in equal proportions.

THIS was an action brought by Catharine M'Knight against Alexander Read and Frederick V. Krug, executors of the will of James Gray, deceased, to recover the arrears of an annuity bequeathed to the plaintiff by the said James Gray.

A case was stated for the opinion of the court, and the following facts were agreed upon, to be considered in the nature of a special verdict.

James Gray, of the City of Philadelphia, made his will, dated the 25th day of May, 1833, in the following terms:

"Be it remembered that I, James Gray, of the City of Philadelphia, merchant, do make and ordain this, my last will and testament, hereby revoking all other wills by me heretofore made.

Item. I direct that all my just debts, and funeral expenses, be fully paid and satisfied.

Item. I direct, that after my decease a just and true appraisement of all my estate, real and personal, be made, as soon as practicable, by two respectable men, to be appointed by my executors, hereinafter named, and delivered to them to guide and regulate the disposition, hereinafter made.

(M'Knight v. Read.)

Item. I give and devise, to my beloved wife Ellen, for her sole and separate use, in fee simple, one full, equal, undivided third part of my estate, real and personal, subject to the power of sale hereinafter vested; and she is hereby permitted to make her selection of such articles of personal estate, at the appraised value, to the amount of one-third of the value of my personal estate, as she may choose; and if she does not select to the amount of one-third, then my executors, hereinafter named, are required to pay her the balance of her third of my personal estate in money.

Item. I give and devise, one other full, equal, and undivided third part of my estate, real and personal, to my beloved children, who may be living at the time of my death, in fee simple, as tenants in common, and if any of my children should be dead at the time of my decease, leaving lawful issue, then, I give and devise to such issue, as tenants in common, in fee simple, the share or shares which would have passed or gone to his, or her, or their parent or parents, if they had been living at the time of my death; and it is my desire and will, that the share or part of my personal estate, herein devised to my children, shall be put out at interest, and managed by my executors, hereinafter named, to the best advantage, until my said children shall respectively attain to full age, or be married. The income and interest to be paid over to their guardians, hereinafter named; and as to the real estate hereby devised to my said children, the same is to be subject to the power of sale, hereinafter directed; and the said income of the real estate, herein devised to my children, so long as it may remain unsold, shall be received by my executors, and paid over to the guardians, respectively, of my children, until they severally attain full age, or marriage; and in case my said daughter shall marry, then I direct, that the portion of personal and real estate devised to her, shall be held by her to her sole and separate use, without any control or interference of any husband she may have.

Item. As touching or concerning the other remaining one, full, equal, undivided third part of my estate, real and personal, I order and direct that out of the principal of the one-third of my personal estate, which may remain after the foregoing devises are satisfied, that my executors pay and discharge the several pecuniary legacies which I have given; and if there shall not be sufficient money arising from this source, that then my real estate may be sold, to accomplish said object, as hereinafter directed. And as to the yearly sums or annuities which I am now about to give and devise; I direct, that the same be paid out of the rent of the third part of my real estate, hereby devised, or out of the interest moneys of the third part of my personal estate, hereby devised, which may remain after the payment of pecuniary legacies, or out of the interest of proceeds of sales of my real estate, which may be made, as hereinafter directed. In accordance with the foregoing regulations,

(M'Knight v. Read.)

I give and devise to my nephew, John Johnstone, the sum of five hundred dollars, as soon as as he is regularly licensed to preach the gospel, to purchase a library for his use.

Item. I give and devise to my beloved mother, the sum of three hundred dollars per annum, to be paid to her by my executors, half yearly, for and during the term of her natural life.

Item. I give and devise to my sister, Catharine M'Knight, the sum of two hundred dollars per annum, to be paid to her by my executors, half yearly, during her natural life, if she shall so long

remain unmarried.

Item. I give and devise to my nephew, John Johnstone, the sum of three hundred dollars per annum; to be paid to him half yearly, by my executors, for his support and education, until he shall be licensed to preach the gospel, and for one year thereafter, but no longer; and it is my desire, that his education be full and complete, as far as is practicable.

Item. If the debts due to me from the estates of Joseph Thornborough, deceased, and his niece, Susan Mosher, deceased, be not paid off before my death, then I give and devise the interest which may become due from those debts, from the time of my death, to be paid over, half yearly, by my executors, to my sister-in-law, Mrs. Isabella Sample, to pay for the education of her children, according to her judgment; and if her children severally attain to full age, then I give and devise the principal of said debts to said children, or those who may arrive at age, to be equally divided among them, share and share alike.

Item. I direct my executors to place out at interest, on good security, at the best interest they can obtain, (but not exceeding legal interest,) the sum of two thousand dollars; and the interest thereof I direct them to receive and pay over, half yearly, for, and in discharge of, the education of my brother William's children, so far as the same may be needed and adequate.

Item. I direct, that the sum of one thousand dollars be put out at interest, in like manner as above stated, and the interest thereof to be paid over, half yearly, for, and in the education of the children of my sister, Ann Johnstone, excepting her son, John Johnstone, whose education is hereinbefore provided for.

Item. I give and devise to the corporation of the Dutch Reformed Church, in Crown Street, Philadelphia, the interest I have in a pew in said church, and I direct that the same be sold by them, for the best price that can be obtained therefor, the proceeds to be paid to the treasurer, and the amount thereof be expended by the deacons of said church, in instalments of twenty-five dollars per annum, until the whole sum is exhausted, in purchasing fuel for poor female members of that church, according to the discretion of the deacons.

Item. As to all the rest, residue, and remainder of my estate,

(M'Knight v. Read.)

wheresoever and whatsoever, I give and devise one-third part thereof to my sister, Sidney Binnis, and her heirs; and the remaining two-third parts, I give and devise to the children of my sisters, Ann Johnstone and Mary Roland, and my brother William, to be divided amongst them in equal parts, as tenants in common in fee.

Item. I nominate and appoint my brother-in-law, Joseph Mosher, Esq., of Lancaster county, to be guardian of the person and estate of my daughter Isabella, and my friend, Frederick V. Krug, of this city, to be guardian of the person and estate of my son James.

İtem. I constitute and appoint my brother-in-law, Alexander Read, and my friend, Frederick V. Krug, to be the executors of this, my last will and testament.

And whereas, it may be necessary, in order to raise money to pay legacies, or to make advantageous dispositions and investments, or to save the expense of partitions, in order to make easy and just distribution of my real estate, that a power be vested in my executors to make sale thereof. Now, I do hereby authorize and empower my said executors, and the survivor of them, to make sale of my real estate, according to their judgment and discretion, and as may seem to them best for the interest of my estate, and good and sufficient deeds therefor, to make and execute to the purchaser; and the proceeds of said sales to invest, on good security, in the public stocks, or ground rents, or bonds and mortgages, for the same uses and purposes and persons as the real estate, so to be sold, appropriated, and devised, in this my last will and testament. And I direct that my executors have, and take the care and management of my real estate, so as to receive the rents, lease, and repair the same, and pay all taxes and other incumbrances, so long as the same remains unsold and undivided; the nett income thereof, so received by them, to be divided and appropriated, half yearly, according to the terms and provisions of this my will.

In witness whereof, the whole of the foregoing will being my own hand writing, I have hereunto set my hand and seal, this twenty-fifth day of May, anno Domini, one thousand eight hundred and thirty-three."

The testator died on the 26th day of June, 1833, being then absent from home, on a journey to the western states. At the time of his death he left a widow and two children, Isabella and James, (who are still living,) and left his wife pregnant with a son, who was born in the month of October following, and named Alexander, and is still living.

The defendants proved the will, and took out letters testamentary. The nett value of the real and personal estate of the testator, after payment of his debts, will be from $36,000 to $40,000.

(M'Knight v. Read.)

The questions submitted to the court, upon the foregoing facts,

are:

1. Whether, so far as regards his posthumous son, Alexander, the said James Gray died intestate; or whether the said Alexander is included, and will take, under the devise by the testator," of one full, equal, and undivided third part of his estate, real and personal, to his beloved children who may be living at the time of his death." 2. If the said James Gray died intestate, so far as regards his after born child, Alexander, then what share or proportion of his father's real and personal estate the said Alexander is to take, and what shares and proportions are to be taken by the other two chil dren, Isabella and James.

per

3. If the said James Gray died intestate, so far as regards his after born child, Alexander, and the court should be of opinion that the said Alexander is entitled to one-third of the real and sonal estate of his father, subject to the interest (if intestate) of his mother therein, then whether the pecuniary legacies, and also the annuities, including the annuity bequeathed to the plaintiff, are to be paid in full, or abated pro rata.

4. If the said James Gray died intestate, so far as regards his said after born child, Alexander, is the power of sale given by the will to the executors revoked, as to the part which the said Alexander will take."

Mr. F. W. Hubbell, for the plaintiff. The testator gives one-third of his estate to his children, who may be "living at the time of his death." I contend that the posthumous child is to be considered as living at the time of the death of the testator; and, therefore, that he was "provided for" within the meaning of the 23d section of the act of 17th April, 1794. The authorities show, that children "living," include such as may be "in ventre sa mere." Pemberton v. Parke, (5 Binn. 601.) Swift v. Duffield, (5 Serg. & R. 38.) The words of this will are exactly the same with those in Pemberton v. Parke. The words, "if any of my children should be dead at the time of my decease," &c., must refer to more than two. As to the rights of the annuitants, and other legatees, there are no words which will postpone them, as among themselves. 2 Williams on Executors, 837, 841. When the bequest is of a sum which is to supply an annual interest, it is an annuity. I contend that, as regards the real estate, there is no postponement of the annuitants to the pecuniary legatees. It is impossible now to say, what the intention of the testator was, except as it may be gathered from the will; and it would seem, from this, that he did not desire to leave his children a large proportion of his property. As to the power of sale, that seems to be settled by Coates v. Hughes, (3 Binn. 498.)