¶1delivered the opinion of the court.
¶2In this case we have not been able to perceive, as the court declared in the instructions to the jury, that “ by a plain and settled principle of law the defendants (G. and A. Bir-ner) had no interest in the land in question under the will” of their brother, at the date outlie compromise. The will of John Birner, as we understand it, devised the entire estate to his wife, for life, with remainder to her children, and then provided that if his wife should die without issue, all his property should be divided between his two brothers. This is a good executory devise to the brothers. Our statute *418provides that the words “ dying without issue” shall not be construed to mean an indefinite failure of issue, but that they shall be construed to mean dying without issue living at the death of the first taker. The contingency is not therefore too remote, for it must be determined at the death of the wife.
¶3If the instruction had reference to a supposed interest of the brothers in the legacy provided by the testator for the child of which his wife was then pregnant, we concur, with the circuit judge in his construction of the will. This provision was contingent, and it was the intention of the testator, if the contingency never happened, by the fourth clause of the will, to dispose of his entire estate, except the forty acres of land devised to his brother in the preceding clause. When the testator, therefore, spoke of the residue of his estate in the fourth clause of his will, he intended to include the legacy provided for his expected child, if such expectations failed. There was, therefore, no lapsed legacy by reason of the testator’s child not being born alive.
¶4The instruction appears to be based on the doctrine stated by Judge Story, in his Treatise on Equity, that “ if a party, acting in ignorance of a plain and settled principle of law, is induced to give up a portion of his indisputable property to another, under the name of a compromise, a court of equity will relieve him from the effect of his mistake.” (1 Story, Eq. § 121.)
¶5This principle is laid down by Judge Story with great caution and with many qualifications, as an examination of succeeding sections of the chapter where it occurs will show. Indeed, in the same section, the commentator adds, “ that where a doubtful question arises respecting the true construction of a will, a different rule prevails, and a compromise fairly entered into, with due deliberation, will be upheld in a court of equity.”
¶6But what is a plain and settled principle of law ? Is it meant such rules as a long series of judicial decisions or statutory provisions have fixed, and which are understood by *419tbe community at large, as well as by the profession whose business it is to investigate such subjects ? If so, how can it apply to the construction of this will ? There was undoubtedly a controversy among the parties in relation to its construction, and it was not their understanding, we may infer, that the true construction was plain or settled. When a will is construed by an authoritative decision, it is settled undoubtedly, and the construction was law just as well before Ihe decision as after; for it is not the province of courts to make but declare the law; but in this sense all principles of law may be said to be plain and settled, and litigated cases could never be" compromised. When we look at the cases to which Judge Story refers, in illustration of this doctrine, we see that there is generally something more than a mere ignorance of the law; that the circumstances lead to suspicions of fraud, imposition, misrepresentation, or undue influence on one side, and imbecility, credulity or blind confidence on the other. Take the first case mentioned, that of a first-born son in England dividing his estate with a younger brother, in ignorance of the law of primogeniture. Every tolerably well-informed person in England may be presumed to know that the fee simple estates of the ancestor descend to the eldest son; and, if a contract is made in ignorance of this “ plain and settled principle of law,” a court may well infer that there must be either fraud or imbecility. But how different is that case from the present! Here is a will, concerning the meaning of which parties interested differ, lawyers consulted differ, and the courts do not altogether agree, as it turns out. A claim is set up on .one side and bought out by the other, and because the opin'ion of the courts may be that the claim had no valid foundation, is it the law that the contract must be set aside and the purchase money returned ? The case of Bingham v. Bingham, 1 Ves. 126, is not unlike this, but the report of this case is thought to be meagre, and its authority, as reported, is questioned. (See 1 Story, Eq. § 129.) Family compromises upon doubted, if not doubtful, rights and mu*420tual claims and mutual ignorance of the law, are generally sustained by the courts.
¶7The instruction of the court was then, in our opinion, erroneous. But we will not be understood, in disapproving the instruction on which the case went to the jury, as deciding that the plaintiff was not entitled to recover. There may have been gross ignorance and imbecility on one side, and a perfect knowledge of the facts and the law on the other; there may have been imposition or undue influence ; there may have been circumstances from which a jury might infer fraud. All these things are charged, but the allegations were not tried. The case turned altogether upon another point. We shall remand the case for a new trial.
¶8Judgment reversed and case remanded.