The Orphans Legacy, Part 3 · Chapter 18
CHAP. XVIII. Of Legacies and Devices to a Child in the Womb.
1. A Deviſe to an Infant in the Womb is good.
2. It may be good, though the Infant be rip'd alive out of the Womb.
3. It is good, though it be a Deviſe in Remainder, or in Tail.
4. How the Divident of a Deviſe ſhall be in caſe of Twins, unexpected, or an Hermophrodite.
5. How the Legacy ſhall be apportioned, when bequeathed to any Child in the Womb, and more then One or Two happen to be Born.
6. Where a Deviſe void or voidable in his Inception, may become good by matter ex poſt facto.
1. THat a Child in the Womb, to whom a Legacy is bequeathed or Lands Diviſed, is after his or her Birth, though ſubſequent to the Teſtators death capable of taking by ſuch Deviſe, is a Truth now not to be controverted though it hath been Contradicted and otherwiſe Reſolved; for we find it Reported in a Caſe thus ſtated, viz. A Man had Iſſue Five Sons, his Wife being with Child with the Sixth at the time of his death; and by his laſt Will declared, That the Third Part of his Land ſhould deſcend and come to his Son and Heir, the other Two Parts he bequeathed to his Four Younger Sons by Name, and to the Heirs Males of their Bodies; and if the Infant in the Mothers Womb be a Son, then he to have a Fifth Part, as Co-heir with his Four Elder Brothers. The Sixth Son was Born after the death of his Father; in this Caſe it was Reſolved, That the Son Born after the death of the Father, ſhould not have any thing, becauſe he was uncapable as a Purchaſor, when the Deviſe was firſt to take effect, becauſe he was not then in eſſe or rerum natura. aMich. 14. El. Dyer. 303. & in Hugh. Abr. tit. De. Sect. 8. §. 1.Notwithſtanding which, it was not long after in another Caſe otherwiſe underſtood, in which Caſe it was Admitted, That a Deviſe to an Infant in his Mothers Belly was good. bTrin. 17. El. Dyer. 342. & Hugh. ibid. §. 2.It is preſumed, the intendment is of ſuch an Infant as was born after the Teſtators death. In other Caſes alſo it hath been held, That Deviſe to an Infant in his Mothers Belly, is good.cFarringdons caſe. vid. Coke: 7. part. 9. in the Earl of Bedfords caſe. & Hughs ibid. §. 3.
2. A Man Deviſeth his Land to his Wife being with Child, the Remainder to the Iſſue en ventre ſafeme. his Wife in Travail dyeth, and the Son is rip'd from his Mother alive; he ſhall have the ſaid Remainder.dDyer. in St. Wills. Sect. 3. §. 3.
3. If one be poſſeſſed of a Term of Years of Land, and Deviſe the ſame to his Wife during all the Term, and if ſhe die within the Years of the Term, then to A. and B. his Two Sons, if they have no Iſſue Male; but if they or either of them have Iſſue Male, then that it ſhall go the uſe of thoſe Iſſues Male; the Wife dies, and the Two Sons dye without Iſſue Born, one of their Wives being privily with Child of a Son, who after his Fathers death is Born; In this Caſe and by this Deviſe the Iſſue Male ſhall have it as ſoon as he is Born.eHill. 13. Jac. in B. R. Adjud. Blandfords caſe.
4. Suppoſe a Man poſſeſſed of an Eſtate to the value of 721 l. hi; Wife being with Child, did Deviſe in this manner, viz. Whereas my Wife is with Child, I Will that if ſhe be delivered of a Son, that then that Son ſhall have 480 l. 13 s. 4 d. And my Wife ſhall have 240 l. 6 s. 8 d. But in Caſe ſhe be delivered of a Daughter, then my Will is, That that Daughter ſhall have the 240 l. 6 s. 8 d. and my Wife ſhall have the 480 l. 13 s. 4 d. and dies. It happens, That the Wife is after delivered both of a Son and a Daughter. The Queſtion is, How each Legatary ſhall be ſatisfied his and her Legacy according to the Intention of the Teſtator; for by the Will a Legacy is given to each of them: It is Reſolved, That according to the Teſtators Intention, which is the Index of the Teſtament, the Son ſhall have double to the Wife, and the Wife double to the Daughter; and conſequently the Son ſhall have 412 l. the Wife 206 l. and the Daughter 103 l. Which in all amounts to 721 l. the full value of the Teſtators ſaid Eſtate. So that each perſon is to have a Portion anſwerable to the Rate of Proportion mentioned in the Will fl. Inſtit. ff. de liberis & Poſthum. & Mant. de Conject. ul.. Vol. lib. 4. tit. 9. nu. 12.But if the Child which the Mother brings forth be an Hermophrodite, then it ſhall have the Portion due to that Sex whereof the Hermophrodite doth moſt participate. gl. quaeritur. ff. de St. hom.But if that alſo be doubtful, it is to be preſumed according to the more worthy Sex, viz. the Maſculine.hAddit. ad Bart. in dict. l. quaetitur.
5. In Caſe a Teſtator ſaith, If my Wife bring forth any Child, I give to the ſame 100 l. and ſhe bring forth Two or Three Children. In this Caſe every Child may obtain a Hundred Pounds, if there be Aſſets ſufficient, and the Teſtators Goods will ſuffice to ſatisfie the ſame, otherwiſe there muſt be a proportionable deduction.il. qui filia…us. §. 1. ff. de Legib. & DD. ibid. Others ſay, the Legacy muſt be divided among them. Mantic. Conject. ult. Vol. l. 4. tit. 8. n. 4. If he had ſaid, I give to the Child in the Womb 100 l.
6. There is a Caſe wherein by the Birth of a Child after his Father, the Teſtators death, a Deviſe becomes good to another, which otherwiſe would be void, when none is given to himſelf: As thus. If one Deviſe his Land to his Daughter and Heir apparent in Fee-ſimple, this Deviſe is void; yet if in this Caſe the Wife of the Deviſor be privily with Child of a Son which is born after his death, now is the Deviſe become good, for now ſhe is not Heir to her Father. kFitz. tit. Aſſize. 27. vid. Shep. Epit. verb. Teſtam. cap. 155. d. 968. Mic. 24. El. Mo. Rep. nu. 412.Q.
Mead and Pyriam Juſtices in the C. B. Affirmed, That it had been there Adjudged in the Lord Dyers Time, That if Lands are Deviſed to Two Men, and the Child where with the Deviſors Wife then goeth, that ſuch Deviſe is good, and the Child ſhall take by ſuch Deviſe: But whether they ſhall take in Common or Joynt-tenancy the Lord Dyer doubted.
A. poſſeſſed of a Leaſe for Years Deviſed the ſame to his Eldeſt Mic. 27 & 28. Eli. B. R. Stanley ver. Baker. Mo. Rep. nu. 358.Son, and the Heirs of his Body; and if he dyed without Iſſue, then to P. his Younger Son, and the Heirs of his Body; and for default of ſuch Iſſue, that the Term ſhould remain to his Daughters. The Teſtator dies leaving Two Daughters, and afterwards another Daughter is Born. The Eldeſt Son Sells the Term, and dies without Iſſue; the Younger Son dies alſo without Iſſue; the Three Daughters enter, and the Term was Adjudged to them Three, although the Youngeſt Daughter was not Born at the Time of the death of the Deviſor; otherwiſe if he had named the Two Daughters in the ſaid Deviſe by their proper Names.