ron, (after the decease of my loving wife Sarah Vickars,) to him and his heirs forever."

That shortly after the execution of the will, the testator died; Elizabeth Vickars intermarried with Charles Price, and died in 1789, without issue. Sarah, the mother, died in 1801 without having another child born after the date of the will.

* Jacob Garron, the brother of Wm. Vickars, survived him, 17 and died on the 2d of April, 1783, having first in due form made and executed his last will and testament, the material parts of which are "I give and bequeath unto my daughter Henrietta Palmer, daughter of Rebecca Palmer, the one-half of my estate of whatever it may consist in, after my just debts are paid."

"Item. I give and bequeath the one-half of my estate unto the child Rebecca Palmer is now big with, if it lives, and if it should die without heir, then I give and bequeath it unto the said Henrietta, her and her heirs forever; if either of the children die without heir, then I give and bequeath their part to the other." Henrietta survived the testator, and died about the year 1801, a minor, and without issue. Rebecca Palmer, at the time the will of Garron was made, was pregnant with a daughter, who was born soon after the decease of Jacob Garron, and her name was Ann, who intermarried with Philemon Pratt, by whom, in conjunction with his wife, the present ejectment was brought.

Several questions are made under these wills: The first is, that Jacob Garron took no interest under the will of Vickars.

Second. If any interest passed to him, it was confined to Vickars' Venture, and did not extend to Piccadilly.

And supposing that an estate was vested in the whole real property of W. Vickars in Jacob Garron; yet first, that the after-born child of Rebecca Palmer being illegitimate took nothing by the first devise to her-and secondly, if she was entitled to the one-half of the estate, yet that the remainder over to her of Henrietta's part was void.

From the state of the case, and from the will of William Vickars, it is most evident what was the testator's design. He had a wife, one child, and the probability of having a child born after his decease, these were the persons he intended to provide for, and that accomplished, his brother was the next person that engaged his attention. He appears from the will to have understood the nature of the different estates he designed to carve out a life estate, an estate tail, and a fee simple; and such his intention will be carried into effect, if it can be done consistent with the rules of law, if not it must yield to them.

By the first and second clauses of the will, the real and personal property devised to his wife for life, on her death* is to go to 18 her daughter Elizabeth, without expressing the extent of the interest given to Elizabeth.

By the third clause the real property, that is Vickars' Venture, is given to Elizabeth and her heirs, (lawfully begotten,) forever. And by the fourth clause the negroes are given to her and her heirs forever.

It will be observed, that the only clause in the will, in which the words "lawfully begotten" are inserted, is the one that gives Vickars' Venture to Elizabeth; these words are not to be rejected in the construction of the will, if they are calculated to elucidate the intention, and to make that intention consistent with the principles of law; and if the effect of those words is to turn the estate that was given into a fee tail, which would be a fee simple without their aid, and thereby give effect to the ulterior clauses that otherwise would be void, certainly that interpretation must be given to them that will make all the parts of the will effectual ut res magis valeat quam pereat.

From the elaborate argument this case underwent, all the light that could have been, has been cast on the subject, and after the most industrious researches, no case has been found, where the words in a will "lawfully begotten," with a limitation over, has been construed a fee simple. Few cases exist on the subject, and although in the case reported in Moore's Report, cited in the argument, there were other words that were calculated to create an estate tail, yet the words lawfully begotten, were relied on as forming a part of the foundation on which it was determined the estate in question was entail.

In Comyn's Digest, and by Hargrave in his notes on Coke Littleton, these words lawfully begotten, in a will, are sufficient to pass an estate tail. No case from the English authorities has been produced, where those words in a will, where no remainder over was given, have been adjudged to pass a fee simple; and it may be suf ficient to say, that in the case cited from 1 H. & McH. 336, there was no limitation over, and therefore that case is not like the one under consideration. The limitation over is of important consideration, for every part of the will must be taken together, and the construction formed from all its parts, so as to give effect to the whole, unless some principle of law is thereby violated; but if Elizabeth Vickars takes an estate tail in Vickars' Venture, then, the limitation 19 * in fee to Jacob Garron, is valid, and such, in the opinion of the Court, is the true interpretation of the will.

By the will, Piccadilly is devised to the wife for life, and on her death to Elizabeth, but in case the contemplated child had been born, Piccadilly, on the death of the mother, was to go to such child. As then no estate of inheritance was given in Piccadilly, the devisees, as such, took only estates for life, unless that interest was enlarged by the subsequent parts of the will. No matter in whom the inheritance existed, they, as devisees, were not entitled to it, unless the estates for lives were enlarged into a fee simple, and if so, as

the remainder to Garron was to take effect, after the failure of the heirs, it is too remote, and therefore void. We have seen that all the devisees, as such, took only estates for life, in Piccadilly, under those clauses of the will purporting to dispose of that tract. Do the words in the will, describing the event on which Garron was to take, so enlarge their estates as to defeat the interest intended to be given to him?

"In case my children dies without heirs, then I give and bequeath my aforesaid lands and negroes to Jacob Garron, to him and his heirs forever."

Are those words necessarily to be understood as meaning heirs general, or may they not be confined to heirs, proceeding from the persons of the devisees, and be construed issue? That the word heirs will not always apply to heirs generally is most certain, frequent are the instances of that word being confined to mean issue; and it is impossible to read carefully the will in question to doubt, but by that word, in the clause restricting the land from passing from his children, he meant issue; for in the preceding clauses of the will, whenever he points out the event on which he designed the property to go from his children, in whom an estate of inheritance was intended to be given, he uses the same expression.

Thus is the clause in which Vickars' Venture is given to Elizabeth, and to her beirs, (lawfully begotten,) if she die without heirs; what heirs? heirs lawfully begotten, that is issue; and an estate tail is created by those words.

As then the words (lawfully begotten,) confine the meaning of the word heirs in a will to issue, especially when there is a limitation over, and as the words die without heirs, must, in that clause of the will by which Vickars' * Venture is given to Elizabeth, mean 20 issue, so may the same words without heirs, in that clause of the will, on which Garron's remainder depends, bear the same construction, thereby give full force and efficacy to every part of the will, and carry into full operation the manifest intention of the tes

tator.

If then, on the death of William Vickars, the testator, Garron had an interest in this property, and if he had any, although in remainder, he was perfectly competent to dispose of it by his last will-Has he by that will, given that interest to one of the lessors of the plaintiff, so as to enable them to recover in the present action?

By the will of Garron, before set forth, he gave one-half of all his estate to his illegitimate daughter Henrietta Palmer, of which there is no question, so far as her interest was concerned, she took a clear fee simple. The other half he devised to "the child Rebecca Palmer is now with," and the question is, whether an unborn illegitimate child, of which the mother is pregnant at the time of the will, is capable of taking by devise?

It is not questioned but that a legitimate child could take; not so, it is contended, the illegitimate.

No express decision, pro or con, has been cited on this subject, and from Hargrave's Notes it was a doubtful point when he wrote. In Moore's Reports the limitation to an unborn illegitimate is said to be valid. Roll's Abridgment to the same effect. In Croke Eliz. it is doubted whether, on principles of policy, such dispositions should be favored. The Judges differed-one favorable to the illegitimate, one opposed, and the other inclined to the second opinion, saying he had consulted most of the Judges, and a majority was against the illegitimate's claim.

In the case before the Court, there is the utmost certainty as to the intended devisee; she is described as the child of which Rebecca Palmer was then with. Aun Pratt, one of the lessors of the plaintiff, is admitted to be that child, and she is competent to take, except excluded from political considerations, there being no uncertainty as to the person.

*

Where can be the justice or policy in punishing the innocent offspring for the criminal illegitimate intercourse between their parents ? their situation is deplorable enough without being deprived of the pecuniary aid of those who brought them disgracefully into 21 existence. It is difficult to discover what principle of policy it is, that will enable the father of illegitimate born children, to provide for those that have lived long enough to acquire a reputed name, that will exclude him from making provision for the child that is unborn, and who, when it comes into existence, will stand more in need of assistance. Yet it is clear that provision can be made for the one, and doubtful as to the other.

Let the policy of the English Courts in the reign of Elizabeth have been what it might, it has long ceased to be the policy of Maryland to have those children unprovided for; on the contrary, the subsequent marriage of the parents, legitimates the prior born children, and if the father is so unnatural, as to leave the child unprovided for, he can be forced to his duty, and compelled to take care of his offspring, although illegitimate. The devise then to the unborn child is, in the opinion of the Court, valid. The remaining question is, whether on the death of her sister Henrietta without issue the whole went to the posthumous child?

On that subject the Court have not the slightest doubt-The will is, "that if either of the children die without heir, then I give their part to other." We have seen that a remainder over to a collateral heir, will convert the meaning of the word heir, to issue; because the first devisee could not die without heir, living a collateral heir. The converse is equally true, that where the limitation or remainder over is to take effect on the first devisee's dying without heirs, if that devisee, on whose estate the remainder depends, is of that description as to be incapable of having heirs other than issue,

(which is the predicament of an illegitimate,) then it must follow, that by the word heir, issue or heir of the body only is intended; and therefore the Court are of opinion, that on the death of Henrietta, without issue, her sister was entitled to the whole estate.

The judgment then of the Court below is reversed, and judgment must be entered here for the appellant, the plaintiff below.

CHASE, C. J. (a) In considering the will of William Vickars, the apparent intention of the testator is to give the lands in 22 question, (Piccadilly and part of Dunn's Range,) to Sarah Vickars, his wife, during her life, with cross-remainders in tail to his daughter Elizabeth, and the child with which his wife was supposed to be encient-Remainder in fee to his brother Jacob Garron. This intention not being repugnant to any rule or principle of law, must prevail. The words "in case my children" (Elizabeth, and the child with which his wife was supposed to be encient,) "die without heirs, I give and bequeath my aforesaid lands and negroes unto my brother Jacob Garron, to him and his heirs, forever," coupled with the words in the preceding clause, by which he devised the lands in question to the child en ventre sa mere, create, by necessary implication, crossremainders in tail in Elizabeth and the child en ventra sa mere. This will must be construed in the same manner as if the child had been born; and dying without heirs, means heirs of the body, because Elizabeth could not die without heirs, living the child, nor the child die without heirs, living Elizabeth. The interest acquired by Jacob Garron, under the will of William Vickars, in the lands in question, was transmissible by the will of Jacob Garron, which brings me to the consideration of his will, and to decide what interest in the said lands passed thereby, to whom, and to what extent.

The true construction of this will, according to the manifest intention of the testator, is to give the lands in question to his two illegiti mate children, Henrietta Palmer and Ann Palmer, (Ann being the child with which Rebecca Palmer was encient at the time of making the will,) as tenants in common, in tail, with cross-remainders over in fee. Can this intention be effectuated without infringing any rule or principle of law? If it can be, such exposition ought to be given to it.

It is established law, that a child, en ventre sa mere, is capable of taking by devise, and that by operation of law the interest in the land so devised will vest in the child when born, and in the meantime descend to the heir-at law. It is equally well established, that an illegitimate child, or bastard, can have no heir but children or issue of the body.

(a) This opinion of the Ch. J. was formed by him at the argument at a former term, and owing to indisposition he did not attend when the opinion of the Court was delivered.