CHAP. XXX. Remark on anterior interest, will embrace the objects existing at the death of the testator, and those who may come in esse before the determination of such interest; and that in all such cases, except in the instance of a legal remainder of real estate, if there be no object at the time of the vesting in possession, all the children subsequently born will be let in, unless the terms of the gift restrict it to a narrower class of objects. The doctrine, however, of the preceding cases may seem to be encountered by some remarks occurring in the case of Bartleman v. Murchison (u), where an annuity was bequeathed to A. for life, and, after her decease, to B. "if a widow, but not otherwise, but to revert back to any child or children after her death;" and it was held, that B., who was married at the death of A., and afterwards became a widow, was not entitled on such subsequent widowhood; Lord Brougham observing-“ Although, in construing bequests of personal, the same technical strictness does not prevail as in devises of real estate, the same rules are to a great extent applicable ;” and then, after adverting to the construction of bequests to children, as comprehending the same persons as devises to these objects, his Lordship remarked-" It is only following out the same principles, to hold, that a person, to whom a legacy is given in a particular character, and by a particular description, shall not be entitled to it, unless he be clothed with that character and answer that description at the moment when the legacy might vest in possession." It will be observed, that, in this case, the bequest was to an individual named, if then answering a certain description and not to a class, though perhaps the principle applicable to the respective cases is not widely different. (u) 2 Rus Myl 136. And here the student should be reminded, that where, in the preceding observations, mention is made of the objects at the period of distribution, this is not intended to designate children existing at that period; for it has been already shewn, that all who have existed in the interval between the death of the testator and the period of distribution, whether living or dead at the latter period, are objects of the gift, and may therefore not improperly be termed objects at that period; their decease, before the period of distribution, having no other effect than to substitute their respective representatives, supposing, of course, the interest to be transmissible. CHAP. XXX. Existence up to time of distri bution not ne cessary. over in default of children enobjects entitled. larges class of It is to be observed, that the rules fixing the class of Whether gift objects entitled under gifts to children are not in general varied by a limitation over, in case the parent should die without children, or in case all the children die, &c., as these words are construed merely to refer to the objects of the preceding gift. It is true, indeed, that in Hutcheson v. Jones, some stress was laid by Sir T. Plumer, V.C., on the words giving the property over in default of child or children, as importing that the ulterior gift was not to take effect unless in the event of the failure of all the children; but in Andrews v. Partington (a), a pecuniary legacy to all the children of A., payable at twenty-one or marriage, with a bequest over in case all the children died before their shares became payable, was confined to children who were in esse when the first share became payable. So, in the more recent case of Scott v. Harwood (y), where the devise was to the use and behoof of all and every the child and children of A. lawfully begotten, and their heirs for ever; and in case the said children of A. should all die before they attained the age (x) 3 B. C. C. 401. (y) 5 Madd. 322. VOL. II. H CHAP. XXX. Remark on Scott v. Harwood. Gift to children to be born or to be begotten. of twenty-one years, then over; Sir J. Leach, V. C., held, that the children of A. living at the testator's death were exclusively entitled, and that in the devise over "the testator must, by necessary inference, be considered as speaking of the children to whom the estate is given." If it be objected, that in this case the expression "the said children" required such a construction, the answer is, that the preceding gift being to all the children, the referential expression had the same force as if the same terms were repeated, and consequently the effect of the whole would be, according to Sir T. Plumer's doctrine in Hutcheson v. Jones, that the estate was not to go over until the failure of all the children. 5thly. We are now to consider how the construction is affected by the words "to be born" or "to be begotten," annexed to a devise or bequest to children; with respect to which the established rule is, that if the gift be immediate, so that it would but for the words in question have been confined to children (if any) existing at the testator's Where they ex- death, they will have the effect of extending it to all the children who shall ever come into existence (z); since, in order to give to the words in question some operation, the gift is necessarily made to comprehend the whole. tend the class; Thus, in the well-known and important case of Mogg v. Mogg (a), where a testator devised a certain property called the Mark Estate to trustees, in trust to pay the rents towards the support and maintenance of the child and children begotten and to be begotten of his daughter, Sarah Mogg: it was contended, that, notwithstanding (z) Mogg v. Mogg, 1 Mer. 654. In the marginal note of the report these words are omitted. The case is deserving of attentive perusal, as it illustrates almost every rule re gulating the classes of children entitled under immediate and future devises. (a) 1 Mer. 658. the words "to be begotten," the devise could apply to only the children born before the testator's death, as those words might be satisfied by letting in the children born after the date of the will before the death of the testator; but the Court of King's Bench (on a case from Chancery) certified, that all the nine children of Sarah Mogg, including five who were born after the death of the testator, took under the devise; and Sir W. Grant, M. R., expressed his concurrence in the certificate. This rule of construction, however, does not apply to general pecuniary legacies, where the effect of letting in children born after the death of the testator would be to postpone the distribution of the general estate, (out of which the legacies are payable,) until the death of the parent of the legatees. Thus, in the case of Sprackling v. Ranier (b), where a testator in a certain event gave a legacy to the sons and daughters of his daughter lawfully begotten or to be begotten: a child born after the death of the testator was held to be excluded. So, in the later case of Storrs v. Benbow (c), where a testator bequeathed £500 "to each child that may be born to either of the children of either of my brothers, lawfully begotten, to be paid to each of them on his or her attaining the age of twenty-one years, without benefit of survivorship;" Sir J. Leach, M. R., held, that the gift was confined to children living at the testator's death, his Honor considering that the words "may be born," provided for the birth of children between the making of the will and the death of the testator; and he observed, that, to give a different meaning to the words, would im (b) 1 Dick. 344. (c) 2 Myl. & Keen. 46. See also Butler v. Lowe, 10 Sim. 317. CHAP. XXX. Distinction in ral pecuniary legacies. regard to gene CHAP. XXX. --and where not. Do not vary the pute to the testator the inconvenient and improbable intention that his residuary personal estate should not be distributed until the deaths of his brothers' children (d). It seems to be established too, that the expression children to be born or children to be begotten, when occurring in a gift, under which some class of children born after the death of the testator would, independently of this expression of futurity, be entitled, so that the words may be satisfied without departing from the ordinary construction, that construction is unaffected by them. Thus in the case of Paul v. Compton (e), where a testator bequeathed the residue of his personal estate in trust for his wife for life, and after her decease unto such of his daughters and such of their children as she should by will appoint, recommending her "to provide for such child or children as may hereafter be born of my said two daughters;" and, in default of such disposition, then in trust for the children of the daughters; Lord Eldon held that this power to the wife did not authorize her to appoint to children not born in her lifetime. So in Whitbread v. Lord St. John (g), his Lordship decided, that a bequest unto and among the child and children of A. born and to be born, as many as there might be, when and as they should attain their age of twenty-one years, or be married with consent, was confined to his children living at the death of the testator and those who afterwards came in esse before the first share vested in possession, according to the rule before adverted to (h). But if the bequest is to "such children as shall hereafter be born during the lives of their respective parents," of (d) The reason lastly assigned by the M. R. is the only one which characterises this class of excepted The former argument would apply equally to cases within the cases. general rule stated ante, p. 98. (e) 8 Ves. 375. |