CHAP. XXXI. v. Massey. Gift to illegiti mate child en ventre held good. Gordon v. Gordon (c), cautiously abstains from giving an opinion on the point decided by Sir W. Grant, in Earle v. Wilson, and had, it seems, obtained the concurrence of that learned judge in the opinion he then pronounced. But the authority of Earle v. Wilson has been since questioned in the case of Evans v. Massey (d), in which a testator, who Case of Evans resided in India, devised as follows:-" Having two natural children, and the mother supposed to be now carrying a third child, I bequeath the whole of my property in England at this time, or now on the seas proceeding to England, to be divided equally between them, that is to say, if another child should be born by the mother of the other two, in proper time, that such child is to have one-third of such property." The testator appointed certain persons guardians of his children, and in the bequest of the residue, expressed himself thus, "after paying my natural children as aforesaid." The question was, whether the bequest to the child en ventre sa mere was made to it as the child of the testator, or whether, on the other hand, it was not to the child with which the woman was enceinte, without reference to the father, as an essential part of the description. Richards, Ch. B. was of opinion, that the bequest was good. He considered the case to be distinguished from Earle v. Wilson, as to which, however, he observed, that he did not understand the grounds upon which it proceeded, and therefore could not entirely accede to it; that the decision excited surprise at the time, and that some of the judges had intimated upon several occasions dissatisfaction with it. After adverting to what fell from Lord Eldon in Gordon v. Gordon, the learned Chief Baron proceeded, "We have therefore only to enquire, in this case, whether there be in the terms of the present bequest, worded as it is, such a condition precedent annexed to it by the testator (d) 8 Pri. 22. (e) 1 Mer. 141, stated ante, p. 149. Earle v. Wilson questioned by Richards, C.B. CHAP. XXXI. Judgment in Evans v. Massey. as by necessary construction requires, in order to give effect to the bequest, the child must be shewn to be the testator's child, and that he meant to give it only in case the child should be his; and that not only by matter of implication or argument, but of clear illustration. The testator's words are, Having two natural children, and the mother supposed to be now carrying a third child.' Now he does not say, with which she is pregnant by me,' but merely that she is supposed to be pregnant generally, and the time of her delivery would prove that fact; then he bequeaths to such child the legacy in question. It is quite clear that there is nothing in the words of the bequest so far, asserting that the child was his, or that he thought so; for, although there can be no doubt that he did think so, yet he does not in terms make such supposition the obvious and sole motive of the bequest. The words are quite general, merely particularising the child that she was then supposed to be carrying, and that would certainly have excluded an after-begotten child, if his then supposition should turn out to have been incorrect. Now the only difficulty arises from the testator having afterwards, in alluding to the children, called them his; and upon that it has been considered that this case is within the reasoning and the principle of the decision in Earle v. Wilson, because the testator, it is said, plainly means to assert that the children are his, and that the legacy is given to the unborn child as one of his children, and that it is given to it entirely on that consideration, as the basis and condition precedent of the gift. I do not, however, think that these subsequent words can be considered as so applying to the bequest itself, as to modify and control it. They were merely a reference to it, and were not intended to have any effect upon it. The allusion does not shew that he meant the child to take only in case of its being his, nor does it amount to an assertion that the child was CHAP. XXXI. his, or that the testator considered he was giving to it the legacy solely as his child." It is to be inferred from the observations of the Chief Remarks on Evans v. Mas Baron, that the principle upon which he founded his objec- sey. III. The preceding sections leave untouched the question respecting the validity of a devise or bequest to the illegitimate children, not in esse, of a particular woman, without reference to the father. The state of the law on the subject seems to be this: the early authorities are opposed to gifts to such objects, on the ground "that the law will not favour such a generation, nor expect that such shall be" (e); and modern authority is silent upon the subject. Dicta, however, have been thrown out by recent judges which cast a doubt upon the old opinion. In Wilkinson v. Adam (g), Lord Eldon observed, that he knew no law against such a devise; but his Lordship afterwards (g) 1 Ves. & Bea. 446. (e) See Cro. El. 409. Whether gifts to bastards not in esse good. CHAP. XXXI. Objection on lic policy. said (h), that whether the cases in Lord Coke (i), which are all cases of deeds, had necessarily established, that no future illegitimate child could take under any description in a will, whether that was to be taken as the law it was not necessary to decide in that case. He would leave that point where he found it, without any adjudication. Undoubtedly, if the objection to gifts of this description was referable simply to the ground of uncertainty, there would be no difficulty in saying, in opposition to the early authorities, that such a devise might be sustained, as it is evident that a gift to the future illegitimate children of a woman does not involve greater uncertainty than such a devise to legitimate children. But it is conceived that there remains a serious objection to the validity of such dispositions, on grounds of public policy. To support the great interests of morality, is part of the grounds of pub- policy of every well-regulated state, and has long been a principle of the law of England, which has uniformly refused validity to provisions offering a direct incentive to vice; as in the case of bonds given with a view to cohabitation, the fate of which is well known. The same principle, it may be contended, applies to gifts in favour of the objects in question. It is true that here the unoffending offspring, and not the delinquent parent, is the subject of them; but it requires no great insight into the ordinary springs and motives of human action, to perceive that bounty to the offspring may act as a powerful engine to subvert the chastity of the parent. Suppose a large estate to be devised to every future illegitimate child of an indigent woman, would not such a provision hold out a strong encouragement to incontinency? Cases might be suggested which would place the argument of immoral tendency in a strong point of view; but as such a question (h) 1 Ves. & Bea. 468. (i) Co. Litt. 3. b. is not likely to occur, since in gifts to future illegitimate children, they are generally described as the offspring of a particular man, which renders them indisputably void, the writer will only farther observe, that the view which has been taken of the subject is not at all prejudiced by the decisions, establishing the validity of gifts to bastards en ventre; for as in these cases the immoral act, which it is the policy of the law to discourage, has been done, the argument on which the objection is founded, does not apply, and they fall within the principle which allows validity to provisions founded on the consideration of past cohabitation. CHAP. XXXI. IV. Upon the whole, the general conclusions from the General concases seem to be: 1st. That illegitimate children may take by any name or description which they have acquired by reputation at the time of the making of the will; but that, 2nd. They are not objects of a gift to children, or issue of any other degree, unless a distinct intention to that effect be manifest upon the face of the will; and if, by possibility, legitimate children could have taken as a class under such gift, illegitimate children cannot; though children, legitimate and illegitimate, may take concurrently under a designatio personarum applicable to both. 3rd. That a gift to an illegitimate child en ventre sa mere, without reference to the father, is indisputably good. 4th. That a gift to the future, i.e. the unprocreated illegitimate children of a man, or of a woman by a particular man, is clearly void. 5th. That a gift by a testator to his own illegitimate child en ventre sa mere has been decided in one instance clusions. |