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Stedfast v. Nicoll.

son and estate. The premises in question are part of the testator's land at Islip.

The cause was argued, at the last term, by
Hamilton and Colden, for the plaintiff'; and
Hurison, for the defendant.

RADCLIFF, J. It is unnecessary to go into a particular examination of the law relative to the operation of devises, like the present to William the son, and William the grandson, of the testator. The devises to them were, in express terms, devises of estate for life only, and from the general plan of the will, evidently appear to have been so intended. The rule is settled, (1 Co. 86. Archer's Cuse, 1 Ld. Raym. 203; 1 Eq. Cas. Abr. 184; Backhouse v. Wells,) and it was conceded on the argument, that an express estate for lise, thus created, cannot be enlarged by implication, nor by any sub

sequent general words, unless it be necessary to effec[*22) tuate the *intent of the will. This construction, in

the present instance, so far from opposiug that intent, is necessury to carry it into execution. (2 Burr. 1106. 1 P. Wms. 54.601. 605. Salk. 236. 2 Vern. S. C. 2 Ld. Raym. 1561. 2 Vern. 737. 3 Salk. 326. 1 P. Wms. 59. in note. Ib. 755. 759, 760. 6 Bro. Parl. Cas. 222. Jones, 114. 1 Vez. 146. Cro. Car. 363. 4th ed. F-arne, 97, 100, 101. 105. 109. 140, 141.) It follows, that William, the grandson was seised of an estate for life only, with remainder to his eldest son in tail male, and for want of such issuie, remainder to his brother, Henry S. Nicoll, the present desendant. William, the grandson, had no male issne, at the time of his death, but left his wife enseint, of whom a posthumous son was born, named William Nicoll, one of the lessors of the plaintiff. Here it is objected, that the remainder being contingent, and William, the grandson, having no male issue, in esse, at the time of his death, it could not vest, eo instanti; that the particular estate determined, and failing as to his issue, the remainder over to Henry, the defendant, immediately took effect. This depends on the question whether posthumous children, by our law, are capable of taking in remainder, as if they had been during the life-time of their parents.

Stedfast v. Nicoll.

By the strict principles of the feudal law, which always required an existing tenant to the precipe, it was formerly held that they could not. But although the law was thus deemed to be finally settled, the decision of the K. B. to that effect, in the case of Reeve v. Long, (1 Salk. 228,) was reversed by the house of lords, against the opinion of all the judges. That case arose on a will, and the lords distinguished between a devise, and a limitation of such remainder by deed. They resolved, that the technical rule should yield to the plain intent of the will, and, for that purpose, construed the limitation in the nature of an executory devise, and allowed the freehold to vest in the person next in remainder, till the son, *who was intended to take, be [*23] boru. Soon after this decision, the statute of 10 Win. III. was passed, which provided, that where an estate, by any marriage, or other setllement, was limited in remainder, &c. posthumous children should be enabled to take, as if born duriug the life of their father. This statute did not expressly extend to such limitations by will; and it is said, that the house of lords in passing it, were unwilling to make any erpress mention of limi'ations by will, lest it should appear to call in question the propriety of their determination. (Co. Litt. 293, note by Butler.) If the statute does not apply to wills, the decision of the house of lords must be received as baving settled the rule in England, for either by virtue of that decision, or of the statute, it appears, thereafter, to have been uniformly adopted ; and in a late case of Roe v. Quailly, (1 Term Rep. 634,) to have been received as free from doubt. The authorities on this subject, however, generally refer to the statute, as prescribing the rule in all cases, independent of the determination of the house of lords; and its terms, I think, are susceptible of that coustruction, The statute of Wm. was also adopted in this state, while a colony, in the year 1774, but was repealed, by name, in 1788; and in the same session all the statutes of England were declared to be no longer in force. The siatute of Win. is, therefore, not a part of our present code, and no legislative provision has since been made, in favor of posthumous children, except VOL. III.

5

Stedfast v. Nicoll.

in the single case of descents, in which it is declared that they shall inherit, as if born during the life of their parents. That provision being confined to the case of inheritance, cannot apply to the present.

The will, in the present case, was made, and the testator died while the colony act was in force. He must be supposed to have acted under the influence of the existing law, and,

we are to conclude, intended, as far as he contempla[*24] ted the event of a posthumous child, that law *should

govern. The question, then remains, how far we can give effect to the intent of his will, or how far the determination of the house of lords, in the case of Reeve v. Long, shall be respected as settling the law in the case of wills, previous to the stat. of William.

On principles of natural justice, no reason can be assigned why an infant en ventre sa mere should not be entitled to the same rights as a child previously born. The civil law, (Just, lib. 2, tit. 13, Domat, b, 2, tit. 1, s. 1, par. 6,) without discrimination cousers on him every beneficial interest; and the common law generally regards him with the same indulgence. It entitles him to a share under the statute of distributions. He might, at common law, take by descent to the exclusion of the next heir; and, according to Lord Coke, the estate was allowed to vest in such heir until his birth. (Plowd. 375. 3 Co. 61. Hob. 222. Dyer, 106.) In pursuance of the same doctrine, he might be vouched to warranty; and an action for detainment of charters might be brought for him as heir. In a modern case, also, (5 Term Rep. 59, 60,) the marriage of a testator subsequent to his will, and the birth of a posthumous child, was resolved to be a revocation of the will, and such child was allowed to take as heir. Indeed, with the aid of the statute of Wm. the rule appears invariably established in the English law, and was so declared by Mr. Justice Buller, in the case of Doe v. Clack, (2 Hen. BI. 400,) that whenever it would conduce to his interest, a child en ventre sa mere should be considered as absolutely born. After a train of decisions to this effect, the reason and

Stedfast v. Nicoll.

equity of which equally apply to the present case, I should not be disposed to revive or enforce a technical rule founded on principles which have long ceased to operate, unless I found myself constrained by authority. The decision of the house of lords, in the case of Reeve, v. Long, has been treated with much severity, and imputed to sensibility rather than a regard to the existing law. Considering *it as applicable to devise only, which have always [*25] received a more liberal construction than formal conveyances, perhaps it was not liable to all the censure that has been bestowed upon it. But whatever are its merits, it was the determination of the highest tribunal of the English law, in the last resort, and was soon thereafter indirectly sanctioned by the legislative provision on the subject. Independent of the statute of Wm. that determination must have been considered as prescribing the rule at common law, and as binding and conclusive on the English courts, and therefore, equally so on the courts in this country. With this authority directly applicable to the case before us, which is supported by powerful considerations of natural justice, and the spirit of analogous cases, I think we are authorized to dispense with the ancient rule, and maintain the right of a posthumous child to take, in remainder, by devise, although not in esse at the instant the particular estate determined.

I am, therefore, of opinion, that the plaintiff ought to recover.

Kent, J. The devises to William, the son, and William, the grandson, of the testator, are in in express terms for life only.

Both these devisees were living when the will was made. The remainder over, then, to the first son of the grandson, in tail male, was good, and within the established rule respecting executory devises, that they are valid for a life or lives in being and 21 years afterwards ; and so far limitations are valid in a conmon law conveyance. (2 Bl. Com. 174. 1 Black. Rep. 190. Duke of Norfolk's Case, 3 Ch. Cas. 1. 7 Term Rep. 102, Long v. Bluckall.

There can be no doubt, also, but that the posthumous son

Stedfast v. Nicoll.

son of the grandson William, if he takes at all, must take as a purchaser. The son and grandson took only estates for

life. (*26) *This seemed to be conceded upon the argument.

The language and intent of the will are too unequivocal and express to admit of any other construction. (2 Vent. 311. 313. Carth. 154. 1 Co. 95.b. 2 Burr. 1100. 1106. Palm. 359. T. Raym. 313. Archer's Cose. 1 Co. 86. 2 P. Wms. 476. 1 Salk. 228. 236. 1 Ld. Raym. 203. 1 Eq. Cas. Abr. 181. pl. 27. 1 P. Wms. 54. 605. 2 Ld. Raym. 1561. 2 Vern. 737. Cro. Car. 363. 6 Bro. Parl. Cas 222-229. 1 Fearne, passim.) William, the grandson, was accordingly seised of an estate for life only, with remainder 10 his eldest son, in tail male, and for want of such issue, remainder to the defendant, &c. William, the grandson, had no male issue in esse at the time of his death. The estate could not then vest eo instanti in his male issue; and it was contended, on the part of the defendant, that the remainder over to the defendant, the second grandson, immediately took effect. This will depend upon the true an. swer tothe question into which the whole cause resolves itself, whether a posthumous child can take a remainder, as purchaser, as if born in the lifetime of its father?

Our statute relative to posthumous children, only applies to them in the character of heirs. They shall, in all cases whatever, inherit, as if boru in the lifeline of their respective fathers. (Laws. sess. 9, c. 12, s. 5.) This was the only statute provision in force at the time of the death of the father of the posthunjous child. In England, the common law rule was understood to be, that a remainder to the first son of A., being a contingent remainder, must take effect during the para ticular estate of A., or to instanti that it determined ; and that if A. had no son in esse at the time of his death, the next remainder over took effect, as if A. had died without is. sue; (Watkins on Desc. 133, 131. 137, 138. and the authorities there cited ; 1 Salk, 228 ; 2 BI. Com. 169,) and if the

person who so sticceded to the remaiuder, took by pur[*27) chase, he could not be deseaied by the *birth of a pos

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