Posthumus pro nato habetur. Therefore where one gave a bond to pay £900 to his daughter, if he should have no son living at the time of his decease, chancery relieved against the bond, upon its being shown that there was a posthumous son who would receive less of the obligor's property than the daughter, if the bond should be paid.'

Gibson v. Gibson, 2 Freem. 223. See also Millar v. Turner, 1 Ves. sen. 86. It has been the statute law of Massachusetts, for about a century and a half, that posthumous children shall have the same share in their father's estate, when he makes a will in which they are not provided for, as if he had died intestate; to be taken proportionally from the devisees and legatees who claim under the will. (Ancient Charters, &c. 351; St. of 1783, c. 24; Revised Statutes, c. 62.) This statute provision assumes, that if the father die intestate, a posthumous child will inherit; and such is the common law. Introduction to Reeve on Descents, p. lii, liii. Lands descend to the children already born, and vest; but are devested by the birth of a posthumous child. This devesting, however, takes place, in England, only when a son is born, the other children being daughters. 2 Bl. Com. 211. In New England, there is no distinction of sex in the law of descents.

In Reeve v. Long, 4 Mod. 282, (and in several other books) the courts of C. B. and B. R. decided that a remainder to A's first son, after a life estate limited to A, could not be taken by A's posthumous son. But the house of lords reversed the decision, though all the judges retained their first opinion. Thereupon the statute of 10 & 11 W. III, c. 16, was passed, to enable posthumous children to take remainders limited to the children of the first or other person to whom the freehold is previously granted or devised. See Bac. Ab, Remainder & Reversion, D. Bul. N. P. 105. Stedfast v. Nicoll, 3 Johns. Cas. 18.

A child in ventre sa mere is now considered as born for all purposes which are for his benefit. Hale v Hale, Prec. Ch. 50; White v. Barber, 5 Bur. 2703; Doe v. Lancashire, 5 D. & E. 49; Doe v. Clarke, 2 H. B. 399; Hall v. Hancock, 15 Pick. 255; Trover v. Butts, 1 Sim. & Stu. 181; Heinec. Pand, Pars I, § 124, 125; Pars V, § 22; 1 Domat, 277, § 14. The statutes of Massachusetts assume that effectual provision may be made by will for such child; and the cases above cited show that such is the law.

Technically, a posthumous child is one who is born after the death of the father. But a child born after the death of the mother has the same rights, and is "of the same condition with other children." 1 Domat, 20, § 7,8 8625, § 6. There is no statute provision in Massachusetts respecting children born after the mother's death. If therefore a mother, having property, should die before delivery, the rights of the child subsequently delivered (exsectus vel

It is, perhaps, rather by legal operation, than by construction, that a contract, "if it will not take effect that way it is intended, it may take effect another way." The general intention of the parties is, in this manner, effected, though the particular intention fails. This usually happens where some legal impediment withstands the particular intent of the parties; as in case, abovementioned, of a note or bill. payable to the order of a fictitious person.

son,

66

A freehold cannot be made to commence in futuro. Therefore a grant of land, by bargain and sale, from a father to a to have and to hold after the death of the grantor," cannot operate as a bargain and sale, though so intended. But it shall operate as a covenant by the father to stand seized to his own use during life, and to the use of the son after the father's death. Thus the son has full title to the land after his father's decease, which was the chief purpose of the parties. The same effect is given to a release attempting to convey a freehold in futuro. So a deed, meant for a release, but not legally operative as such, is held to operate as a grant. A grant in consideration of natural

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editus) not technically born (natus), would be wholly governed by the common law. If the father were previously dead, doubtless the child would be strictly and technically posthumous, and clearly within the existing statutes. And if the father were alive, the child would inherit from the mother; and by the civil law might succeed to the property, pro rata, against a will omitting to provide for him. 2 Domat, 109, § 8. By that law, a father might disinherit a posthumous child. If he omitted to mention such child in his will, the will was inofficious, so far as such child was concerned. If he were provided for, the will, &c. was valid, as at common law. 2 Domat, 109, § 8. Just. Inst. Lib. II, tit. 13.

The Massachusetts statutes seem to have prohibited a father from disinheriting such child. It may, however, be questionable. Justinian reformed the Roman law, by prohibiting a parent from disinheriting such child. Nov. 115. Did this Novel extend to mothers? Heinec. Recit. Lib. II, § 524.

1 Shep. Touch. 82; 6 East, 105; Willes, 686; Gould on Pleading, 156–160. 2 Doe v. Simpson, 2 Wils 22; Wallis v. Wallis, 4. Mass. R. 135; Doe v. Salkeld, Willes, 673; Doe v. Whittingham, 4 Taunt. 20.

3 Roe v. Tranmarr, Willes, 682. .

• Goodtitle v. Bailey, Cowp. 597; Hastings v. Blue Hill Turnpike, 9 Pick. 80.

affection may operate as a covenant to stand seized to the use of the grantee.' The words "limit and appoint" may operate as a grant of a reversion, though intended as an appointment of uses, but not being sufficient for that purpose. A release from a trustee to his cestui que trust may be considered as a bargain and sale. A release to one not in possession, does not, as such, pass any estate; but if made for a valuable consideration, and registered, it will operate as a bargain and sale, or other lawful conveyance, as, by the Massachusetts statutes, the recording of a deed duly executed is equivalent to actual livery of seizin."

In all these and similar cases, the deeds, which are permitted to have an operation different from what was designed, must be consistent, in their terms and incidents, with the operation allowed. If the terms, &c. are repugnant to such legal operation, the deed cannot have its intended operation. It will be void.

An agreement between a lessor and the assignee of his lessee, that the lessor shall have the premises as mentioned in the lease, &c. shall operate as a surrender."

A covenant never to sue shall operate as a release or defeasance, to prevent circuity of action.

1 Vanhorn v. Harrison, 1 Dallas, 137.

2 Shove v. Pincke, 5 D. & E. 124.

3 Jackson v. Beach, 1 Johns. Cas. 399.

Aliter, of a cove

4 Pray v. Pierce, 7 Mass. R. 381; Russell v. Coffin, 8 Pick. 143. S. P. 6 Mass. R. 32; 3 Pick. 521; 4 Mason, 45; 7 Mass. R. 494; Stearns on Real Actions, 12, 13; Bac. Ab. Pleas and Pleadings, I. 7; 2 Saund. 97, note; Gould on Pleading, 156-159.

5 Smith v. Mapleback, 1 D. & E. 441. Lord Hale and his associates, 1 Vent. 141, approved of lord Hobart's commendation of judges that are curious and almost subtile (astuti) to invent reasons and means to make acts effectual according to the just intent of the parties. Hob. 277. And lord Willes says, judges, in these later times, have (and I think very rightly) gone further than formerly, and have had more consideration for the substance, to wit, the passing of the estate according to the intention of the parties, than to the shadow, to wit, the manner of passing it." Willes, 684, referring to 3 Lev. 372. 6 Deux v. Jefferies, Cro. Eliz. 352; 2 Saund. 48, note (1).

nant not to sue within a specified time.' A covenant not to sue within a limited time, and also that if a suit be brought within the time, the cause of action shall cease, or that the defendant shall be discharged from the debt or duty, or the plaintiff shall forfeit the debt, will be a bar to the suit. The defendant is not turned round to a suit on

the covenant. But if the covenant is successfully pleaded to a suit on the original cause of action, the whole purpose of the covenant is answered, and the covenantee cannot maintain an action against the covenantor for disturbing him by suit. Such covenant, however, is not a bar to a suit on the original cause of action, when it is made with one of two or more joint contractors; for it would defeat the intention of the parties. A covenant never to sue one of two or more joint or joint and several obligors or promisors does not operate as a release; for a release of one, in such case, is a release of all, and the intention is not to discharge the debt, but to exempt one of the parties from liability. The only remedy of the covenantee, if afterwards sued, is on his covenant. In 12 Mod. 415, Holt, C. J. is reported to have said that a covenant not to sue for a specified time is a defeasance. If it be so, it might be pleaded in bar to a suit brought within the time. But the law is clearly otherwise. If, however, there be in such covenant a provision that the covenantee may plead it in bar of a suit commenced before the time has elapsed, the law may be different.

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1 Deux v. Jefferies, Cro. Eliz 352; 2 Saund. 48, note (1); Clarivil v. Edwards, 1 Show. 331; Perkins v. Gilman, 8 Pick. 229; Garnett v. Macon, 2 Brock. 185; Bac. Ab Release, A. 2.

2 White v. Dingley, Mass. R. 433. See Upham v. Smith, 7 Mass. R. 265; 8 Johns. 58; Bac. Ab. Pleas and Pleadings, I. 7.

3 Hutton v. Eyre, 6 Taunt. 239; Garnett v. Macon, 2 Brock. 185.

4 March, 95; Fitzgerald v. Trant, 11 Mod. 254; Lacy v. Kynaston, 12 Mod. 551; Dean v. Newhall, 8 D. & E. 168; Shed v. Pierce, 17 Mass. R. 623; Tuckerman v. Newhall, 17 Mass. R. 584; Harrison v. Close, 2 Johns. 448; Walker v. McCulloch, 4 Greenleaf, 421. See also Brooks v. Stuart, 1 Perry & Davison, 615.

5 See Aloff v. Scrimshaw, 2 Salk. 573, and the cases above cited.

A license to enclose common may operate as a release of common, if so intended; for, as a license, it is determined by the death of the party granting it.'. Licenses, that convey any interest in land, must be by deed; and Parker, C. J. says "they are considered as leases, and must always be pleaded as such." 2 But in Bacon's Abridgment' it is said, "if one license another to enjoy such a house or land till such a time, this amounts to a present and certain lease or interest for that time, and may be pleaded as such, though it may be also pleaded as a license."

A perpetual license in form would doubtless operate as a grant of an easement, and might be pleaded as a grant. Indeed a prescriptive right rests on the presumption of a grant; and so does the right acquired by adverse enjoyment for twenty years. These rights, however, are not often. pleaded as acquisitions by grant.

It is a rule of pleading, that things must be pleaded according to their legal operation. But where a thing may operate in two ways, at the election of the party, he may plead it in one way or the other, according to his election, as in the case of a license, before mentioned.*

7. The time when a contract was made is to be regarded in expounding it; and contemporaneous exposition is of great weight in construction.

"Every grant shall be expounded as the intent was at the time of the grant. As, if I grant an annuity to J. S. until he be promoted to a competent benefice, and at the time of the grant he was but a mean person, and afterwards is made an archdeacon, yet if I offer him a competent benfice according to his estate at the time of the grant, the annuity doth cease."

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1 Semb. Miles v. Etteridge, 1 Show. 349.

2 11 Mass. R. 538.

Bac. Ab. Leases, &c., K. Pleas and Pleadings, I. 7.

4 Gould on Pleading, 160.

Per Wray, C. J. Cro. Eliz. 35.