SCOTT, Guardian, versus KELSON, Ex'or., 3 Port. 452

Hitchcock, C. J. This is a writ of error from the County Court of Greene County, sitting as a Court of probate, to reverse a decree of said Court, giving a construction to the will of William Bell. The will is in the following words, viz : “ 1.1 will all my real estate to my wife, Elizabeth Bell, for and- during her natural life, and, at her death, to be equally divided amongst my children. “ 2. I will her the following personal property, to wit, [naming some negroes, and other personalty.] - “3.

I will the balance of my property to be equal-1 y divided amongst my children,: Margary, having received eight hundred dollars; Turner, in his lifetime,. fourteen hundred dollars; and Elizabeth Ridge-way, fourteen hundred; these amounts have to be rendered, by each, to rny estáte, before they are entitled to an equal distribution with the younger children. Alexander, háving received two hundred dollars, to enter a piece of land, has to render that a-jnount into the estate. John, having received fourteen hundred dollars, has to render that arnonut into the estate, before he is entitled to an equal distribution.

I appoint my friend, John Nelson, my executor,” &c. Turner Bell, who is mentioned in the will as having, in his life-tirne, received fourteen hundred dollars, left a son named Turner D. Bell, who, by his guardian, claims the share to which his father would have been entitled, had he been lining. The commissioners who were appointed to divide the personal estate, gave him one share. Exception uas taken to this, before the Court below, who sustained, the exception; and decreed that he was not entitled to any thing under the will.' The exposition of wills has always been governed, by the intention of the testator.

He, not' being supposed to be acquainted with legal form and language, a,greater latitude of construction is permitted, to leave to every ope the power to make his own will in his own way. It is emphatically said, that intention is the pole-star in the direction of devises. The words of a will are the means from which to collect the intention; and to arrive at this, the law neither requires nor expects technical words.

Nay, more : when technical words are used, their teehnical signification will yield to the testator’s meaning, if he explains them., The word heirs, and heirs of the body, are, techic'ally, words of descent. Yet, if it be the intention, these words will be accepted as words of purchase, So also, issue, children, son, ^ technically words of purchase; yet they will be cepted as words of descent, if it be the testator’s miention. So also, under the word children, grand . , ' ’ *. , and great grand children may take, it it be necessary and proper to effectuate the intention of the testator.

And as the true construction of the will, before the Court, depends upon the meaning of the word tgg-tatpr. in the use of the children, I shall confine my remarks to that point. It is admitted, that the word children, does not ordinarily and properly speaking, comprehend grand children, or issue generally. There are two cases where it is permitted— 1. From necessity — where the will would be inoperative, unless the sense is extended beyond its natural import: and, ' 2.

When the testator has shewn, bf other words, that he did not intend to use the word' children in its proper actual meaning, but in a more extended sense. Under the first of them, Wylde’s case is found : which was upon a devise to a man and his children. It, was held, if there were no children at the date of the will, the father would take an estate-tail, and children would mean issue; for it was evident something was intended for children : but none being in issue, they could take nothing except through the father ; and he could transmit nothing to them, unless he,had an estafe of inheritance.

It was necessary, 0„therefore, to construe the -word “children,” ftsue, on account of the general apparent intention, are as the words “ children” and “ issue,” are indiscriminately used by the testator — thereby shewing bis intention to use the former -word in its enlarged sense, so as to include grand children. In the case of Wythe vs. Blackman, Col. Thurston, by a voluntary deed, limited real estate, after the death of himself, and nephew John, an'd failure of estates in tail mail, to John’s first and other sons, to fou.r persons — Lady Chary, Mrs. Wythe, and Mrs.

Blackman, his three sisters, and the fourth was his niece, daughter of a deceased brother — to sell, and divide the money and mesne profits among themselves, naming them, or the respective issues of their bodies, if they or any of them should be dead, upon the failure of such issue of John, viz, to each of them, or their respective children, a fourth part. But, if any of them should be dead, without issue, on failure' of such issue of John, then, to their survivors, or to their respective children, equallyj' if any of them should be dead, leaving issue.

John survived the testator,-and died after being in possession of the estate, and without issue. The three sisters and niece died before John, the niece leaving no issue. But at the death of John, lady Chary had three children; Mrs. Wythe, both children and grand-children, and Mrs. Blackman, grand-ohildren, only. One of the questions was, whether the children of Lady Chary and Mrs. Wythe, were entitled to have the whole estate divided among them, in two shares, or whether the grand-children of Mrs. Blackman, and the great gr'and-children of Mrs. Wythe, were entitled to participate with them.

A question, whether the import of the word issue, was to he restrained by the word children, or the word children enlarged by that of issue ; and Lord Hardwick decided, that children, grand-children, and great grand-children were collectively entitled.

In the case under consideration, the testator had,at the date of the will, children whom he names, and one grand-child whom he. did not name; and it. is admitted, that had he given in his estate to his children generally, or by name, without making any allusion to his deceased son, Turner, that the word “ children” would be taken in its ordinary'sense, and lhat the grand-children would be excluded.

But, it is contended, that in as much, as in the first clause he ■gives his estate, after the termination of his wife’s life, to his children generally ; and that, in the third clause, when he comes to dispose of his personalty and the residuum, in which he names his sons and daughters, alludes to the sums they had received in advancement, and requires those sums to he returned to the estate before distribution, and in this clause names-his deceased son, Turner, and the share he had in his life-time received,.and requires it to here-turned also before a division — the testator rntist, have had the. son of Turner in' his mind, and that he included him in the general term children, with the others.

And in order to strengthen this construction,reference is had to another rule of

interpretation, which is, that “ effect ought to be given to the whole will, if possible, so that every word ought to have ef-feet, unless inconsistent with the general intention.” We are inclined to this

interpretation, of. the will,. Although wills operate from the death of the testator, yet, as a general rule, they are construed from the making; and we are to -consider what was probably passing in the mind of the testator when writing his will. Had the testator, in this case, overlooked the event of his son’s death, and had made no allusion to it or to his grand-son. the.

Court * would not rectify the omission by intendment; as this would be, rather making, than construing the will. • But when, as in this case, the deceased’ son is named, and the same directions given, relating to his interest, as is given to the rest, can we draw any other 'conclusion than that he intended that son’s interest to be represented in the distribution; and if so, to whom would it go, except to the grand-son ? Otherwise, the words would be inoperative — with it, we do not interfere with the general intention.

If the testator had made no will, by the general law of descent, the grand child would, by right of representation, have stood in the shoes of his father, and taken an equal share with the other children.

As the testator followed the law of descents, in giving an equal share to his children — in doing which he thought proper to name his deceased son, requiring the same to be done by him, that was to be'done bj the others — may we not well say, that he intended to follow the laws of descent — and, in this instance, construe the term children, into a word of descent, instead of a word of purchase; which, technically speaking, it is construed. Indeed, when .a person devises to his heir at law, he cannot make him ta k by purchase, if be devises to him the same estate that he would take by descent.

Presuming that the testator knew what the law of descent is, are we not bound to infer, that from his allusion to his deceased son, he intended only follow the law of descent, except so far as provision is made for his wife; and that not knowing the technical meaning of the word children, he intended to provide for the grand-child, by bringing into the will the share of his father, and in that way secure, what the law would have done, without the will. Indeed, it is admitted in argument, that probably it was his intention, to give a child’s share to this grand-child.

But, it is contended, that that intention has not been legally expressed.; or, if expressed, that it can not be sustained, without violating the known and well settled rules of law. It is conceded, by the counsel for the defendant in error, “ that in construing wills, every word is to have effect, according to its natural import, and that words of art, are to(be construed according to theijr technical sense; unless, upon the whole will, it appears plainly not tobe so intended'; and a list of cases, from 2 Bridg. Digest,'734, are referred to.

The competency of testimony to shew, that Turner Bell left a son, is not questioned. Now, if the principle, that every word of a will is to be made to have effect, if it can consistently be done, is lo be ap-, plied to this case — what is more plain, than that, in directing that the several advancements, to Margary, to Turner, in his life-time, and to Elizabeth, should be returned to the estate, before they should be entitled to an equal distribution.

How can it be denied, that the testator intended to establish a principle of dis-tribnion which should recognise-the right of the legal representatives of his deceased son Turner, and if so, how can we accomplish that intention, without considering the word “ children,” in its enlarged and- comprehensive sense, as including grand children — thereby considering it sinonymous with the word, “issue?” If the Court, as was doné in Wylde’s case, above referred to, iti a devise to a man and his children, considered the father as taking an estale tail, thereby giving the weird “children,” the effect of ihe word “issue,” to prevent the devise becoming inoperative; and if, as in the case of Wythe vs.

Blakman, where it was not necessary to give the enlarged construction to the word, “children,” to prevent such a consequence, (as there were children in that case,) but purely to effectuate the intention of the testator, gave the word the sainé enlarged sense; surely we are justified in giving it the same construction, in a case where the intention is equally manifest.

But, it is contended, that, to give the will this construction, the Court will violate a known rule of law; which is, “ that a devise or bequest, to one, notin being, at the time of the execution of the will, is, void:” and, in farther illustration of this position, it is said, that if the bequest had been made, to Turner, when living, and he had died before the testator, his heir would take nothing by the will. These positions of law are not controverted; but their application to the present case, is questioned.

The devise and bequest are not made to Turner Bell — his death is recognised ; and his son does not claim through his father, and as his legal representative — he claims, as being one of the children of the testator, in the sonso in which iho testator meant to use the word : that is, as one of the issue of the testator. It is undoubtedly true, that if Turner had been alive, at the execution of the will, and the bequest had been made to him, and he had died before the testator, the bequest would have lapsed.

The testator, in such a case, having, at the date of his will, fixed the meaning of ihe word “children,” and having confined it to its technical meaning, the subsequent act of Providence, in removing the heir from this life, before the death-of the testator, does not 'au-thorise the Court to change the construction, so as to accommodate the will to the change of circumstances. The effect of a will, may be changed, by Courts, subsequent 1o its execution ; but not the intention — if so, it would not be the intention expressed in the will.

A testator may, and they often do, anticipate events and provide for them, which maj^ often become the subject of legal construction ; but still the intention of the testator is to be preserved. The case of Radchffe vs. Buckley, is mainly relied upon, by the defendant’s counsel, to support ‘ J - 1 „ construction of the will.

In that case, James Buckley, by his will, dated the 4th April, 1799, disposed of all his personal estate, in the following manner— “All the residue, and remainder of my personal estate and effects, whatsoever, and wheresoever, I give and bequeath unto and amongst all the children, lawfully begotten of William Buckley, Henry Buckley, John Buckley, Thomas Buckley, and Ann, the wife of Hugh Shaw, my late brothers and sister, deceased, to be equally divided amongst ihem, in their respective parents’ stead, per stirpes, and not per capi-ta, share and share, alike, if more than one; and if but one, then I give the same wholly to that one.” All the brothers, and the sister were dead, at the execution of the will;'at which time there was issue of William Buckley, three children living, and several grand-children, by four deceased children; the other brothers, also, left children, and grand-children, by deceased children : Ann Shaw had several children, who were all dead, at the making of the will, three of them leaving several children.

The .Court, decided, that the children, w.ho were living at the date of the will, were entitled to the estate, to' the exclusion of the grand-children. I shall not go into an extended examination of tliis will, to distinguish it from the one under consideration. The reasoning of the master of the rolls, in that case, exhibits such material distinctions between that and this, that it will only be necessary to advert briefly to them, in order to shew its irrelevancy.

In the first place, the distribution is to be per stirpes, and not per capita; thereby enacting classes, which is not the case in the will before us. 2. The word “children,” was used but once in the' will, and to give it the extended con six action, in one part of the will, and reject it in the other — to preserve another pai't, as the different sets of children were to be provided■ for, was not admissible: here, no such incongruity exists. 3.

The will was, confessedly, ambiguous, and the Court were seeking to get at the general intention — - to do which, they, were obliged to exclude the limited intention in favor of Ann Shaw’s grand-children. Here, there is no ambiguity. To let in the grandchild, here, we do not have to 'exclude any of the others named. And— 4.

The fact, that the testator expressly referred to the death of his son, Turner, in making the bequest, directing his advancement to be brought into hotch-pot, before distribution, shews that his mind was directed to that object, which can only be effected, by giving the word its extended signification. There was no such allusion, in the.will of, Buckley; and, though it w7as proved he knew of the death of Mrs. Shaw’s children; yet, the fact may not have been present to his mind, at the making of his will. In every view, therefore, in which we have been enabled to consider this case, we are satisfied that Turner D.

Bell, the grand-child, is entitled to a distributive share of the estate of William Bell, under the will. The judgment of the Court below is reversed, and the decision of the commissioners sustained. Reversed and remanded. Hopkins, J., not sitting. 112 Bur 1112 2East, 42 5 Term R 721. 2 L R 1440 11East,671 2 Atk. 582 4 Term R. 299; 5 ibid. 323; 6 Coke 617; 2Barn & C 538; Doug 306. 1 Rop. on L 69—10 Vesey 201. 2 Atk.221. 2 BlaCom. 241; 1Sal. 233; 2Ves. & B. 187 3 Bur.1541 1T. R. 201;3ib.5-6-Wil. 297; 2 Bar & C. 69 Bar & C.69 b10Ves.195 b 10 ves.195