) claim that by the death of the posthumous child, and under the provisions of the' testator’s will, which in the event of either of the children’s dying without issue, gives his or her share to the survivor, they are entitled to receive back so much of the infant’s estate, as was made up by contribution from Amanda’s share of her father’s estate, and to be put into the same situation as if the posthumous child had never been born. If they cannot sustain this claim, the whole must go to the infant’s mother and brother of the whole blood.

The limitation of the testator’s will, giving over the property in the event of either of his children’s dying without issue, cannot directly apply to the posthumous child. He did not take by the will, but by law. His existence was not contemplated by the testator, wlio only had reference to the children living at the time of the will. It is as if the will had said, “and in the event of the death of my daughter Amanda, or my son Joshua’s dying without leaving issue, his or her share to go to the survivor.” How could this be applied to the posthumous child? However reasonably we may conjecture that the testator would have a similar provision in reference to his share, if he had contemplated his existence, yet for this Court to supply it, would be to make the will. The law provides for him only on the supposition of his riot being contemplated by the will, and that no provision of the will is applicable to him.

The idea, however, seemed to be rather of this sort — that the posthumous child takes only a proportion of the share or interest, whatever that may be, which each of the other children takes in the testator’s estate; that Joshua and Amanda took their shares, subject to the contingency of their going over in the event specified, and that the posthumous child must take, subject to the same contingency. Whatever truth there maybe in this, it can have no effect in the present case. The terms of the act of 1789, providing for posthumous children when they are not provided for by the will, are: “If no provision shall be made by the will of the testator for any child or children that may be born after his death, such child or children shall be entitled to an equal share of all real and personal estate given to the other child or children, who shall contribute to make up such share or shares, according to their respective interests or portions, deriving to them under such will.”

Now under this clause, I suppose the posthumous child takes only a share of the particular interest or estate, whatever that may be, which is given to the child provided for by the will. For instance, a father gives to his son A for life, and at his death to a stranger. The posthumous child takes only a share of A’s life estate, and holds for the life of A. Then upon the death of the posthumous child, the estate does not, upon that event, go over to the stranger, by the limitation of the will. It is transmitted to his legal representative and next of kin, to be held until the termination of the estate pur autre vie. So if the gift were to a stranger for life, and at his death to the testator’s son A, the posthumous son would take a sliare of A’s remainder, and upon his death would transmit it to his legal representative — if the gift were to a stranger absolutely, but if ho should die having no issue, then to testator’s son A, a question might arise whether the possibility thus created in favor of A, were such an interest or estate as is embraced by the terms of the Act, and whether the posthumous child were entitled to a share of the benefit of this contingency. Or if the gift were to the son A absolutely, and if he should die having no issue, to a stranger, whether upon the death of A without issue, the posthumous child’s estate should go to the stranger. But this question does not arise in the present case. If the devise were to Amanda or to Joshua for life, with remainder to the other, he would take a share of one’s life estate and of the other’s remainder, and his estate would be absolute. If the interest which the devisee over takes under an executory devise, be such an one as is embraced by the Act, then he would take a share of the estate of one, and of the contingent benefit secured to the other, and his estate is still absolute. If it be not, and these are regarded as devises of the absolute estate to Joshua and Amanda, with executory devises over on the event specified, then he takes a share of the absolute estate of each, and must transmit it to his legal representatives. And it appears to me not subject to the contingency of the will. If Joshua had died without issue in the life-time of "William, would the share which William derived from him have gone over to his sister1? If the will had, in the event of Joshua and Amanda’s both dying without issue, given over the estate to a stranger, and both had died without issue in William’s life-time, must the entire estate have gone to the stranger? It would be defeating the entire purpose of the Act, thus to construe it. But this question does not arise in the present case, and it is not therefore properly decided. If Joshua should hereafter die leaving no issue, then the question may be made whether the entire estate given to him by his father’s will, including the portion received by William, and which is now to be distributed between himself and his mother, shall go over to Amanda — that is to say, whether William took subject to the contingency.

It may be observed that the land is not devised by the will; Only a power is given to the executors in relation to the division of it. William therefore took his share of that absolutely by inheritance, and must transmit it in the same way.

It is ordered and decreed, that the petition be dismissed with costs.

The petitioners appealed from the decree of the Chancellor, and moved the Court of Appeals to reverse the same, on the ground that the posthumous child, William L. Pendarvis, did not take an absolute estate in the property allotted to him under the act of 1789, but the same contingent estate as the other legatees under his father’s will; and that upon his death, the other legatees are to be reinstated, in the same situation as if the posthumous child had not been born.