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course this construction is excluded by the express terms CHAP. XXX. of the will, and all the after-born children will be let in, whether born before the period of distribution (i) or not. It has been decided, too, that the words “ which shall Do not confine
devise to future be begotten,” or “to be begotten,” annexed to the de- children. scription of children or issue, do not confine the devise to future children; but that the description will, notwithstanding these words, include the children or issue in existence antecedently to the making of the will (k).
This doctrine is as old as the time of Lord Coke, who says (?), that as procreatis shall extend to the issues begotten afterwards, so procreandis shall extend to the issues begotten before. And it seems that even the words “hereafter to be “ Hereafter to
be born," does born” will not exclude previously-born issue (m), to pre- not exclude ex
isting children, vent, Lord Talbot has said, the great confusion which would arise in descents by letting in the younger before the elder. But, as a rule of construction, it must be founded on presumed intention; it supposes that the testator, by mentioning future children, and them only, does not thereby indicate an intention to exclude other objects, and in this view is certainly an exception to the maxim, expressio unius est exclusio alterius (n).
(i) Scott v, Earl of Scarborough, 1 Beav. 156.
(k) Doe d. James v. Hallett, 1 Mau. & S. 124. See the same principle applied to a deed, Hewit v. Ireland, 1 P. W. 426.
(1) Co. Litt. 20. b. (m) Hebblethwaite v. Cartwright, Cas. temp. Talbot, 31; which seems to overrule the position of Lord Hale, that the words “in posterum procreandis” exclude sons born before, on account of the peculiar force of “in posterum;" Hal.
MSS. cit. Harg. and Butl. Co. Litt.
(n) Compare the principle of these
CHAP. XXX. Sir William Grant thought (c), that a gift over, in “ Shall happen case certain persons “ shall happen to die in my lifetime,”
though strictly importing futurity, might be understood as speaking of the event at whatever time it may happen,
whether before or after the will. Words“ born” The preceding citation from Lord Coke has anticipated and“ begotten," do not the observation (which properly finds a place here), that born children, a gift to children “ born” or “ begotten,” will extend to
children coming in esse subsequently to the making of the will, and even after the death of the testator, where, the time of distribution under the gift being posterior to that event, the gift would by the general rule of construction, include such after-born children.
Thus, where (p) a testator bequeathed certain funds to trustees in trust for his wife for life, and after her decease, in trust to transfer the same unto and among all and every the child and children lawfully begotten of the testator's nephews and niece by their then or their late respective wives and husband : Sir J. Leach, V. C., held, that the
prehended after-born children. Indeed, his Honor's decision in their favour, seems to have been carried so far as to let in children born after the death of the widow, which was the period of distribution; in
which respect the decision is clearly untenable. Legacy to every So in the case of Ringrose v. Bramham (9), children child E. hath extended to born in the interval between the making of the will and future children.
the death of the testator, were let in under a bequest to
of age.” It was even contended that the bequest ex- CHAP. xxx. tended to children born after the death of the testator, and before the majority of the eldest; and the Master of the Rolls, (Sir R. P. Arden,) rested his objection to this construction, not solely on the force of the word “ hath,” but on other grounds; particularly that it would have the effect of postponing the distribution of the general residue, until the number of pecuniary legatees could be ascertained.
It is not to be inferred, however, that because the Courts in the preceding cases have refused to allow the claims of after-born children to be negatived by expressions of a loose and equivocal character, they would deny all effect to words studiously inserted with the design of restricting a gift to children to existing objects, though the reason or purpose of the restriction may not be apparent; as in the instance of a gift to children “now living,” which we have seen is confined to children in existence at the date of the will (r). 6thly. It should be observed, that in the application of Children en
ventre, when the preceding rules, and indeed, for all purposes of con- included. struction, a child en ventre sa mere is considered as a child in esse. This was finally established in the case of Held to take as
objects living Doe v. Clarke (s), which was an ejectment directed by at a given pe
riod. Lord Thurlow, in consequence of a difference of opinion between his Lordship and Sir Lloyd Kenyon, M. R., on the claim of a posthumous child under a gift to all the children of C. who should be living at the time of his death; his Lordship maintaining the competency, and his Honor the incompetency of the child en ventre sa mere to take as a “living ” child (t).
(r) Vide ante, Vol. I., p. 278. (3) 2 H. B. 379.
(1) Clarke v. Blake, 2 B. C. C. 321; overruling Pierson v. Garnett,
2 B. C. C. 47; Cooper v. Forbes, Id.
The case of Clarke v. Blake afterwards came before Lord Loughborough (u), on the equity reserved, and his Lordship, in conformity to the decision of the Court of Common Pleas, held the posthumous child to be entitled. Indeed so completely is the point now set at rest, that the claim of a child en ventre sa mere under a bequest “to the child and children begotten and to be begotten on the body of A., who should be living at B.'s decease,” was admitted sub silentio in the much-discussed case of Mogg
v. Mogg (w). Child en ventre It being thus settled that children en ventre were entientitled under description of tled under the description of children living, the only doubt
that remained, was whether they would be held to come under the description of children born; and that question also has been decided in the affirmative (y). The result then is to read the words “ living,” and “born,” as synonymous with procreated ; and, to support a narrower signification of such terms, words pointedly expressive of an intention to employ them in a special and restricted sense,
must be used. Whether chil. It should be observed, that in Bennett v. Honeywood (2) take under a Lord Apsley considered that the admission of children en
ventre was confined to devises to children, and refused to let in such a child under a devise to relations. This decision does not appear to have been expressly overruled; but it is conceived that the present doctrine, and the prin
dren en ventre
gift to relations.
(u) 2 Ves. jun. 673.
(x) 1 Mer. 654. See also Raw lins v. Rawlins, 2 Cox, 425. These cases demonstrate that the distinction laid down in Northey v. Strange, 1 P. W. 341, between a devise to children generally, and to children living at a given period, with reference to the admission of children en ventre, is unfounded;
nor would it have been deemed worthy of remark, had not the case been cited by a recent writer (1 Belt's Ves. sen. 113. Editor's note,) without an explicit denial of its authority.
(y) Trower v. Butts, 1 Sim. & Stu. 181. See also Whitelock v. Heddon, 1 Bos. & Pull. 243.
(2) Amb. 708.
ciple upon which the late cases have proceeded, that a child en ventre sa mere is for all purposes a child in existence, and even born, conclusively negative any such distinction.
III. Sometimes questions arise on the construction of Clauses of subclauses substituting the children of legatees who die before the period of distribution or enjoyment. Most of these questions will be found in other parts of the present work especially in a subsequent chapter, which treats of the period to which words providing against the death of a prior devisee or legatee, coupled with a contingency, are to be considered as referring. But there is one point whether shares
of children are which it is convenient to notice in this place, because the by necessary
implication subcases seem to establish a construction which is, it seems, ject to the same hardly reconcilable with the principles of analogous cases, their parents as and may therefore be treated as peculiar to clauses of substitution in favour of children. The point occurs where children are substituted for legatees dying before a given period (usually the period of distribution), without any express requisition that the children thus substituted shall survive such period. The question is, whether the substituted gift is by necessary intendment to be construed as applying only to such issue as may happen to be living at such period, or whether the issue surviving the parents are absolutely entitled; in other words, whether the gift to the issue is by implication subject to the same contingency of survivorship as the gift to the parents. The prevalent notion, before adjudication had thrown any light on the subject, seems to have been, that in such cases it was not allowable to engraft on the gift to the issue an implied qualification, in order to assimilate their interest to that of their parents; and this strictness of construction