ing rule, the shares of all the objects became payable at the same time, and the period of distribution was the same for them all: where the shares become payable at different times, as in the ordinary case of a gift to children at twenty-one or marriage, the last rule requires to be supplemented by another, namely, that where there is a bequest of an aggregate fund to children as a class, and the share of each child is made payable on attaining a given age, or marriage, the period of distribution is the time when the first child becomes entitled to receive his share, and children coming into existence after that period are excluded." This rule, which accelerates the period of distribution by fixing it at the time when the first child becomes entitled to receive his share, is undoubtedly a rule of convenience. The two rules, however, seem to me to depend on different considerations. The latter is purely a rule of convenience, which, as is admitted by all who have commented on it, contradicts the words of the will. The other rule does not necessarily contradict the words of the will, because, in legal phraseology, "all the children" is intended to mean "all the children. living at the testator's death." No lawyer could doubt that a gift of a sum of money to the "members of a club" would extend only to those who fulfilled that description at the time of the testator's death. There does, therefore, seem to me to be a distinction of substance between the first rule, which may to some extent be a rule of convenience, and the second rule, which is purely and simply a rule of convenience, although, no doubt, they must both be treated as instances. of rules fixing the period of distribution in the case of gifts to a class of persons. Chitty, J., in In re Wenmoth's Estate, was dealing solely with the second rule, i. e., the rule which fixes the period of distribution among children at the time when the first child becomes entitled. It is that rule which he declines to extend to a case where income only is given; and I do not think it occurred to him to consider in any way whether it would be right to depart from the rule as to children being ascertained at the testator's death because they were only interested in income, or for any other reason. His judgment does not appear to me to apply to such a case as the present one, and this gift must be construed according to the ordinary rule. I therefore hold that, under the gift of income, only the children of Elizabeth Holmes living at the testator's death take, and that the gift over to the children. of such children is not void for remoteness, and there must be a declaration to that effect.

CHAPTER XIX

REFERENCES TO CHILDREN "BORN" OR "LIVING" AT A GIVEN PERIOD

BLASSON v. BLASSON.

(Court of Chancery, 1864. 2 De Gex J. & S. 665.)

This was an appeal by some of the defendants from part of a decree of Vice-Chancellor Kindersley, declaring the construction of a disposition in the will of Sarah Blasson.

The testatrix, by will, dated the 8th of August, 1843, gave certain property to trustees, including £5,000 £3 per cent reduced bank annuities, upon trust to sell the property, other than the bank annuities, and invest the proceeds along with the bank annuities in their names in the books of the Bank of England and accumulate the income— "and when and so soon as the youngest of the children of my lastnamed three nephews and nieces who shall have been born and living at the time of my decease, namely, the child or children of my nephew Thomas Blasson and of my nieces the present wives of Frederick Carritt and Frederick Froggitt shall arrive at the age of twenty-one years, then the said stock, with the accumulations and increase, shall be equally divided among all such children of my nephew and of my nieces last named and described as shall be then living, share and share alike; and if at the time of such division any such child or children shall not personally make his or her legal claim to his or her portion thereof within eighteen calendar months after such division has been or ought to have been made, he, she and they shall be considered as dead, and the trustees for the time being of this accumulated property shall be at full liberty, if they so see fit, to divide the share or shares of such absent person or persons between all the rest of such children then living and present, share and share alike, in addition to their original shares; and the whole principal and accumulation is for no other use, trust or purpose whatsoever than is aforesaid written of and concerning the same."

The testatrix died on the 8th of January, 1844. The nephew and nieces all had children then living, and the youngest of those children attained twenty-one on the 20th of August, 1863.

On the 26th of August, 1863, there were living five children of Thomas Blasson, all born in the life of the testatrix; six children of Mrs. Carritt, four of whom were born in the lifetime of the testatrix, -one on the 11th of June, 1844, about five months after her death, and the other subsequently; and nine children of Mrs. Froggitt, two

of whom were born in the lifetime of the testatrix,-one on the 2d of August, 1844, within seven months after the death of the testatrix, and the other six subsequently.

Vice-Chancellor Kindersley held, that the period of division was the 2d of August, 1865, the time when the youngest of the children who were in ventre sa mère at the death of the testatrix would attain twenty-one, and that all the children then living of the nephews and nieces, whether born before or after the death of the testatrix, would be entitled to participate. Some of the children born in the lifetime. of the testatrix appealed from this decision.

THE LORD CHANCELLOR. In Trower v. Butts, 1 S. & S. 181, a case determined by Sir John Leach in 1823, it was decided that a bequest of personalty in trust for all the children of the testatrix's nephew born in the lifetime of the testatrix, included a child of which the wife of the nephew was enceinte at the decease of the testatrix, although not born until several months after such decease. In the present case, some doubt was expressed by the Vice-Chancellor as to the correctness of that decision. But, in my opinion, the judgment of Sir John Leach was right, and well warranted by antecedent decisions in our law. The same rule prevails in other systems of jurisprudence. In the Digest, lib. 1, tit. 5, "De Statu Hominum," s. 7, it is said, “Qui in utero est, perinde ac si in rebus humanis esset, custoditur, quoties de commodis ipsius partûs quæritur, quanquam alii, antequam nascatur, nequaquam prosit." And again, in sect. 26, it is said, "Qui in utero sunt in toto pæne jure civili intelliguntur in rerum naturâ esse." It is, however, material to observe that the fiction or indulgence of the law which treats the unborn child as actually born applies only for the purpose of enabling the unborn child to take a benefit which, if born, it would be entitled to, and that it is limited to cases where "de commodis ipsius partûs quæritur." This is well expressed by John Voët in his commentary of the title of the Digest, which I have cited. Speaking of the "Nascituri," his words are, "Fictione tamen juris pro jam natis habentur quoties de ipsorum commodo agitur." And again, "Quod si non ipsorum in utero existentium sed tertii tantum vertatur commodum, cessat illa juris fictio quâ pro jam natis haberentur, nec aliis prosunt nisi nati." This distinction supplies the ground for the decision of the present case. Reference is made by the testatrix to the time when the youngest of the children of her three nephews and nieces, who shall have been born and living at the time of her decease, shall arrive at the age of twenty-one years; and this reference.

1 "It seems indeed now settled that an infant en ventre sa mère shall be considered, generally speaking, as born for all purposes for his own benefit." Per Buller, J., in Doe d. Clarke v. Clarke, 2 H. Bl. 399, 401 (1795).

In Thellusson v. Woodford, Ves. 227, 323 (1798), Buller, J., said: "In Doe v. Clarke, the words 'that wherever such consideration would be for his benefit, a child en ventre sa mère shall be considered as absolutely born,' were used by me, because I found them in the Book from whence the passage was taken. But there is no reason for so confining the rule."

is made for the purpose of putting an end on that event to a trust for accumulation, and the words, therefore, are descriptive only of a natural event, that is, the coming of age of the youngest of the children who were born and living at the death of the testatrix, in which description the word 'born' must have its natural, and not its fictitious legal interpretation. It is indeed true, that in the present singular case the class of children to take under the gift might be augmented in number by holding that the words, "who shall have been born and living at the time of my decease," include children then in utero; but to hold this would not be warranted by the principle of this peculiar rule of construction, which is limited to cases where such construction of the word "born" is necessary for the benefit of the unborn child, and no such necessity here arises. Inasmuch, therefore, as the words in question are used for the purpose only of ascertaining a period of time, and are not a description of children as objects of a bequest or trust, I am of opinion that the words "born and living at the time of my decease" do not include children in utero, and that the trust for accumulation ceased when the youngest of the children actually born and living at the death of the testatrix attained majority. For these reasons I reverse this part of the judgment of the ViceChancellor. On the other point I agree with his Honor. The period of division is the time when the youngest of the children actually born at the death of the testatrix attains majority, and the stock and accumulations are directed to be divided among all such children of her said nephew and nieces as shall be then living, that is, at the period of division; and as there is nothing to restrict or limit these words of description, all the children born after the death of the testatrix, but before the period of division, are entitled, if living at that period. The order of the Vice-Chancellor must be altered accordingly.

In re BURROWS.

CLEGHORN v. BURROWS.

(Court of Chancery. L. R. [1895] 2 Ch. 497.)

Summons to have it declared that upon the true construction of the testator's will and in the events which had happened the plaintiff became absolutely entitled for her separate use to a moiety of the testator's real and personal estate.

John Valentine Burrows by his will, dated October 24, 1893, devised and bequeathed his residuary real and personal estate to his wife Jane Burrows, his son Alfred James Burrows, one of the defendants, and the plaintiff, upon trust to pay the income thereof to his wife for life, and upon her death, as to one moiety, for his son and his issue as therein mentioned, and as to the other moiety, "I give

devise and bequeath the same to my daughter Kate Cleghorn" (the plaintiff) "for her absolute use and benefit in case she has issue living at the death of my wife, but in case she has no issue then living" then the testator directed his trustees to pay the income of that moiety to her for her life, and then to her husband for his life, and after his decease he gave the same moiety equally between the children of his son absolutely as tenants in common.

The testator died on November 26, 1894, and his widow died on March 9, 1895. At the time of the widow's death the plaintiff Kate Cleghorn was enceinte, and the day after her mother's death was delivered of a living child.

The question was whether the plaintiff took absolutely or the gift over took effect.

CHITTY, J., after stating the facts, proceeded: The child was en ventre sa mère at the time of the death of its grandmother, and was plainly then living, so as to bring it within the words of the will "in case she has issue living." But then it is said that the word "issue" imports more than the word "child," and that it means that there must be a child born at the period when the mother is to take; but it appears to me that that distinction between the two words is too refined. Then it is said that the rule is that the child en ventre sa mère is not deemed to be living except where there is a benefit passing directly to the child; and as the mother and not the child in this case takes the benefit, the gift over takes effect. But the question is covered by authority.

In Thellusson v. Woodford, 11 Ves. 112, Lord Eldon in his judgment, referring to the case of Gulliver v. Wickett, 1 Wils. 105, says, 11 Ves. 149: "In which case the devise was to a child en ventre sa mère; and to go over, if that child should die under the age of twenty-one, leaving no issue. In the construction of that limitation, expressly to a child en ventre sa mère, suppose, that child had at the age of twenty married, and died six months afterwards leaving his wife enceinte that property, absolutely given to him, would not be devested, merely because the child was not born till three months after his death." The hypothetical case put by Lord Eldon is exactly this present case, for the second child en ventre sa mère was not to take for his own benefit, but for that of his father, there being a gift over in the event of the first child en ventre sa mère leaving no issue. The opinion of Lord Eldon, as he expressly puts the case of leaving no "issue," extends to this case. In Thellusson v. Woodford, 11 Ves. 112, the unanimous opinion of the judges was pronounced by Macdonald, C. B., and in the course of it, 11 Ves. 140, referring to Gulliver v. Wickett, 1 Wils. 105, he says: "The devise was to the wife for life, then to the child, with which she was supposed to be enceinte, in fee, provided that, if such child should die before twenty-one leaving no issue, the reversion should go to other persons named. The