СНАР. XXX.

Exception of an eldest child in

estate.

opposition to Matthews v. Paul; for as the doubt is not as to the period of vesting, but whether such period is the time of ascertaining the object to be excluded, the declaration in question seems not to be very material. Besides, whatever is its effect, the declaration as to vesting in Matthews v. Paul, seems to be equivalent in principle. The result of Lord Gifford's determination is, that in the case of gifts to younger children, not involving the peculiar doctrine applicable to parental provisions, the time of vesting is the period of ascertaining who are to take under the description of younger children, and who is to be excluded as an elder child.

That this is the rule in regard to devises of real devise of real estate appears by the recent case of Adams v. Bush (n), where a testator devised freehold estate to his uncle A. for life, remainder to the wife of A. for life, remainder to all and every the child and children of A., other than and except an eldest or only son, and their heirs, and if there should be no such child other than an elder or only son, or being such, all should die under twenty-one, then over. At the death of the testator A. had two sons, B. and C.; B. died in A.'s lifetime, and it was contended that according to the cases respecting gifts to younger children, especially Matthews v. Paul, C. was not entitled, as he did not answer the description of younger child when the remainder vested in possession; but the Court certified (it being a case from Chancery), that the devise took effect in favour of C., the second son, he being the younger son at the death of the testator.

Remarks on
Adams v. Bush.

This case relieves the point of construction which has been the subject of discussion in the preceding remarks, from the uncertainty which previously existed, so far at least as respects devises of real estate, and it is hoped that (n) 8 Scott, 405.

the same sound principles will be applied to bequests of personal estate, at least such of them as are not governed by the peculiar doctrine applicable to parental provisions in favour of younger children. There seems to be no solid difference between such bequests and devises of real estate.

The present chapter will be concluded with the case of Langston v. Langston (o), which is remarkable for the great difference of opinion that existed in regard to the true construction of the will. The question was, whether the first son of the testator's son A. was excluded, under a clause which directed trustees to convey to him (A.) for life, with remainder to trustees to preserve, with remainder to the second, third, fourth, fifth, and all and every other son and sons of A. successively, as they should be in seniority of age and priority of birth, in tail male, with remainder to the testator's second and other sons successively in tail male, with numerous remainders over. The eldest son of A. claimed an estate tail male expectant on the decease of A. The Court of King's Bench, on a case from Chancery, certified that he took no estate. Sir J. Leach, M. R., (being, as it should seem, dissatisfied with this opinion), sent a case to the Judges of the Common Pleas, who certified that the first son of A. took an estate tail male, and the M. R. decreed accordingly, at the same time recommending that the case should be carried to the House of Lords, which was done; and that House, after much consideration, affirmed the decree of the Court below. Lord Brougham founded his conclusion, that the eldest son took an estate tail male, upon the general context of the will, in which various terms of years and limitations were made dependent on the existence or non-existence of an eldest son, in a manner which rendered them in the highest degree absurd, if the eldest son took no estate; and his Lordship (0) 8 Bligh, N. S. 16.

128

CHAP. XXX.

cond and other sons includes the first, semble.

But

even considered that the language of the particular devise itself bore out the construction, as the words "other" sons, extended to the whole range, including the eldest. "But it is said," observed his Lordship, " that 'other' always means 'younger,' 'posterior,' and I leaned at first towards this view of the subject: it is a very plausible argument, and in ordinary cases, it is true in point of fact. If you were to say (in the usual way), first, second, third, fourth, and other sons, 'other' must mean the sons after the fourth. why does it mean those after the fourth? Only because you had before enumerated all that come before the fourth, Devise to se- for you had said first, second, third, and fourth. But suppose you had happened to omit the first, and instead of saying first, second, third, fourth, and other sons, you had said second, third, fourth, and other sons, leaving out the first, then it is perfectly clear that 'other' no longer is of necessity confined to the fifth, sixth, and seventh; but rather, ex vi termini, includes the first, because the first is literally the one who answers the description of some thing other than the second, third, and fourth. The word 'other' would then just as grammatically, as strictly, and as correctly, describe the first as the fifth, sixth, or seventh son, because the eldest son is a son other than the second, other than the third, other than the fourth. The only reason why other,' in all ordinary cases, and in the common strain of conveyancing, means a younger son, is, that no one ever thinks of leaving out the elder, and to begin with the second, then 'other' would of course always suggest to one's mind the idea of the unnamed elder son, as well as the unnamed younger sons."

I. ILLEGITIMATE children, born at the time of the making of the will, may be objects of a devise or bequest, by any description which will identify them (a). Hence, in the case of a gift to the natural children of a man or of a woman, or of one by the other, it is simply necessary to prove that the objects in question had, at the date of the will, acquired the reputation of being such children. It is not the fact (for that the law will not enquire into), but the reputation of the fact, which entitles them. The only point, therefore, which can now be raised in relation to such gifts is, whether, according to the true construction of the will, it is clear that illegitimate children were the intended objects of the testator's bounty; for, let it be remembered, that though illegitimate children in esse may take, under any disposition by deed or will adequately describing them, yet it has long been an established rule, that a gift to children, sons, daughters, or issue, imports primâ facie legitimate children or issue, excluding those who are illegitimate, agreeably to the rule, "Qui ex damnato coitu (a) Metham v. Duke of Devon, 1 P. W. 529.

CHAP. XXXI. nascuntur, inter liberos non computentur" (b). Nor will expressions, or a mode of disposition affording mere conjecture of intention, be a ground for their admission.

Not extended

to illegitimate

mere conjec

ture.

This is well illustrated by the case of Cartwright v. Vawchildren upon dry (c), where A. having four children, three legitimate and one illegitimate, (the latter being an ante-nuptial child of himself and his wife), bequeathed to all and every such child or children, as he might happen to leave at his death, for maintenance until twenty-one or marriage, and then in trust to pay such child or children one-fourth part of the income of his estates; but in case there should be only one such child who should attain that age or marriage as aforesaid, then to pay the whole income to such only child, if the others should have died without issue: and there was a limitation to survivors in case of the death of any of the children under age, unmarried, and without issue. It was contended that the distribution into fourths plainly indicated, that the illegitimate daughter was in the testator's contemplation, there being four children including her when the will was made, and that all the expressions applied to females, shewing that he meant existing daughters, not future issue, which might be male or female. But Lord Loughborough decided against the illegitimate daughter. He said it was impossible that an illegitimate child could take equally with lawful children in a devise to children. This decision has been commended by Lord Eldon, who in a subsequent case, addressing himself to the argument urged on behalf of the illegitimate daughter (d), observed, "That the direction to apply the income in fourths only afforded conjecture; as if between the time

Lord Eldon's observations upon Cart

wright v. Vawdry.

(b) Hart v. Durand, 3 Anst. 684, post, p. 135. See also Cartwright v. Vawdry, 5 Ves. 530. Harris v. Stewart, cit. 1 Ves. & Bea. 434.

(c) 5 Ves. 530.

(d) See judgment in Wilkinson v. Adam, 1 Ves. & Bea. 464, which is replete with learning on this subject.