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Stedfast v. Nicoll.

thumous son to A. This was undoubtedly understood and received to be the rule of the common law. But, on the other hand, if the remainder man, in such case, had taken by descent, or per formam doni, instend of by purchase, then, by the common law, the posthumous son would have devested the estate. This rule, notwithstanding it appeared to be so well established, was, however, shaken by the house of lords, on a writ of error, in the case of Reeve v. Long, in which they reversed the judgment of the K. B. on this very rule, and, as it is said, against the opinion of all the judges. This case gave occasion to the statute of 10 & 11 Wm. III. c. 16, to enable posthumous children to take estates, as if born in the lifetime of their fathers. It recited, “that whereas it often happened that by marriage and other settlements, estates were limited in remainder to the 11se of sons and daughters, the issue of such marriage, with remainder over, &c. by which means such sons and daughters, if they should be born after the decease of their father, were in danger to be defeated of their remainder," &c. and it enacted, that in case of estates then or thereafter so limited, the posthumous children should take by virtue of such settlement, in the same manner as if born in the lifetime of their father, &c.(a)

This act was enacted by the Colony legislature in 1774, and repealed in 1788. (Sess. 11, c. 73, s. 1.) It was probably, suppose.), at the time, that the provision in a former act, which I have mentioned, was comprehensive enough to reach every case. We are, therefore, still obliged to recur to the principles of the common law, to determine whether the

posthumous son can take as a purchaser in the case stated. The decision of the house of Lords in the case of Reeve v. Long, a little prior to the *statute of Wil- [628] lian III. does, indeed, settle the question in favor of the posthumous son, if that decision is to be regarded as a

(a) [Old note.] Lord Loughborough says, that the object of this statute was not to affirm the case of Reeve v. Long, though ic did by implication affirm it; but it established that the same principle should govern where the limitation was by deed of settlement. (4 Ves. jun. 342.)

Stedfast v. Nicoll.

conclusive authority. I am satisfied, that it was in opposition to the old technical rule, that a remainder must vest, either during the particular estate, or else at the very instant of its determination. This rule was founded on feudal principles, and wasintended to avoid the inconveniences which niight arise by admitting an interval when there should be no tenant of the freehold; as well as to preserve an uninterrupted possession between the particular estate and that in remainder. The reason of the rule has, therefore, in a great degree, ceased ; and I should be very unwilling to revive it, unless I felt myself absolutely bound by authority, especially when it went to defeat the claims of a posthumous son merely because he was posthumous. On the other hand, the decision of the house of lords, on a question of law bronght regularly before them, by writ of error, must be regarded as of the highest authority. The circumstance of the lapse of a century since that decision was made, during which time it has stood unchanged, cannot but add to the force with which it presses upon the question before us. Since that time the rights of posthumous children have been constantly extending. Au infant en ventre sa mere has been considered, independant of the statute of William III. as in actual existence, for many purposes, according to the maxim of the civil law, posthumus pro nato habetur. (1 Vesey, 86. 5 Term Rep. 49. 4 Vesey, jun. 241, 242. 322. 325. 334, 335.) “I know of no argument," says one of the judges, (Grose, J. in Lancashire v. Lancashire,) " founded on law or natural justice, in favor of the child who is born during his father's life, that does not equally extend 10 a posthumous child; and, in a lale case, (2 H. Black. 400.) the court go so far as to say that it is now settled, that an infant en ventre sa mere shall be

considered, generally speaking, as born, for all pur(*29] poses for *his own benefit. In that case, Ch. J. Eyre

observed, that an infant en ventre sa mere, came clearly within the description of a child living at the time of his father's death.

Since the decision of the English house of lords has received such sanction by the progressive and liberal consid

Stedfast v. Nicoll.

eration of the situation of posthumous children I do not hesitate to conclude, that the posthumous son in the case before us was to be considered in esse at his father's death, so far as to be competent to take the remainder in tail; and, consequently, that the lessor of the plaintiff is entitled to recover. Lewis, Ch. J. was also of the same opinion.

Judgment for the plaintiff. (6)(c)

(b) (Old note.] It appears from the decision of K. B. in Long v. Blackal, (7 Term Rep. 102,) and a note to that decision, (p. 103,) and from the opinions of the judges in 4 Vesey, jun. 241, 242. 322 to 325. 331, 335. •and 342, that an insant en ventre sa mere is to be deemed existing, for the purpose of executory devises, and that such infants are considered, in all respects as in esse. Indeed, the lord chancellor (p. 342,) seems to consider the decision of the house of lords as a sound decision, and always acquiesced in, and that it was sanctioned by Lord Somers. (See also 11 Vesey, jun. 119, 120.)

(c) The law is now too well established to be shaken that an infant en ventre 8a mere is for all purposes of construction to be regarded as a living child. Mr. Jarman, in his Treatise on Wills, (Perkins ed. 1845, vol. 2, p. 103, et seq.) observes: “This was finally established in the case of Doe v. Clarke. (2 H. B. 379.) which was an ejectment directed by Lord Thurlow, in consequence of a difference of opinion between his Lordship and Sir Lloyd Kenyon, M. R., on the claim of a posthumous child under a gift to all the children of C. who should be living at the time of his death; his Lordship maintaining the competency, and his Honor the incompetency of the child en rentre sa mere to take as a “ living" child. (Clarke v. Blake, 2 B. C. C. 321, (see Perkin's ed. 320, note (1) and cases cited,) overruling Pierson v. Garnett, 2 B. C. C. 47. Cooper v. Forbes, id. 63. Freemantle v. Freemantle, 1 Cox, 248.) The case of Clarke v. Blake, afterwards came before Lord Loughborough, (2 Ves. jun. 673,) on the equity reserved, and his Lordship, in conformity to the decision of the court of common pleas, held the posthumous child to be entiiled. Indeed so completely is the point now set at rest, that the claim of a child en ventre sa mere under a bequest “ to the child and children begotten and to be begotten on the body of A., who should be living at B.'s decease,” was admitted sub silentio in the much discussed case of Mogg v. Mogg, (1 Mer. 654. See also Rawlins v. Rawlins, 2 Cox, 425.*) It being thus settled that children en ventre were entitled under the description of

These cases demonstrate that the distinction laid down in Northey v. Strange, (1 P. W. 341,) between a devise to children generally, and to children living at a given period with reference to the admission of children en dentre, is unfounded ; por would it have been deemed worthy of remark, had not the case been cited by a recent writer, (1 Bell's Ves. sen. 113, Editor's note,) without an explicit denial of its authority.

Stedfast v Nicoll.

children living, the only doubt that remained, was whether they would be held to come under the description of children born; and that question also has been decided in the affirmative. (Trower v. Butis, 1 Sim. & Slu. 181. See also Whitelock v. Heddon, 1 Bos. & Pull. 243.) The result then is to read the words “living," and " born," as synonymous with procreated ; and, to support a narrower signification of such terms, words pointedly expressive of an intention to employ them in a special and restricied sense, must be used. It should be observed, that in Bennett v. Honeywood, (Amb. 708,) Lord Apsley considered that the admission of children en ventre was confined to devises to children, and refused to let in such a child under a devise to relations. This decision does not appear to have been expressly over. ruled; but it is conceived that the present doctrine, and the principle upon which the late cases have proceeded, that a child en ventre sa mere is for all purposes a child in existence, and even born, conclusively negative any such distiuction. (See also Fearue Cont. Rem. Eng. ed. 1844, vol. 1. p. 308, et seq.)

As to the application of the doctrine to legacies, see, beside the foregoing authorities, Roper on Leg. Am. ed. 1848, vol. 1, p. 43, et seg and cases cited ; 2 Williams on Exis. Am. ed. 1841, p. 797. et seq. and cases cited. Mr. Hilliard (Am. Law of Real Prop. 2d. ed. vol. 1 p. 521,) in commenting upon this rule remarks: “ It is the established principle of American law, that a posi humous child shull take both by descent and express limitation, equally wiih others. (4 Kent, 248.) It was early beld in New York ; (Sledfast v. Nicoll, 3 John Cas 18. Swift v. Duffield, 5 S. & R. 38. Marseilis v. Thalhimer, 2 Paige, 35. Dingley v. Dingley, 5 Mass. 535. Burke v. Wilder, 1 M'Cord's Cha. 551. Armistead v. Dangerfield, :3 Mun. 20. Aik. Dig. 94); that although 'the Statute of Williain is not in force in that State, having been expressly repealed ; yet independently of this act, the English law is settled in favor of the claim of a posthumous child. On principles of natural justice, such child has the same rights with others. The civil law never makes a distinction, and the common law very rarely.

Thus, a posthumous child takes a share under the statute of distributions, and by descent So, the birth of such child (with marriage) revokes a will. Independent of the Statute of William, the decision of the House of Lords, which was the determination of the highest tribunal of the English law, must be considered as prescribing the rule at common law; and inasmuch as i he old technical rule, which requires a remainder to vest at the very instant when the precoding estate terminates, was founded on feudal reasons vot now in force, this furnishes an additional ground for adhering to the later doctrine." Add to the authorities cited by him, Perwuy v. Powell, 2 Devereux & Batlle, Eq. 312. Hall v. Hancock, 15 Pickering, 255. The Revised Statutes of New York 3d ed. vol. 2, p. 11, § 30, 31, provide, that where a fulure estate shall be limited to heirs or issue or children, postbumous children shall be entitled to take in the same manner as if living at the death of their parent. It is perhaps worthy of note that estales tail are abolished by statute in New York. (2 Rev. Stat. 3d ed. p. 9, § 3.)

Jones v. Caswell.

JONES against CASWELL, Survivor, &c.

The land of A. was advertised for sale by the sheriff on an execution against

A., at the suit of B. C. who had purchased the land without knowing of the judgment and execution, agreed with B. who attended the sale, that if he would not bid against him he would pay B. the amount of his execution, and give him his note for the further sum of 150 dollars, and B. acce

ded to the terms and desisted from bidding. In an action on the note against C., by the second endorsee, to whom it had

been negotiated, after it became due and with a knowledge of the circumstances, under which it was given, it was held that the consideration of the note might be inquired into; and that the consideration being unconscientious, and against public policy, the note was void.

This was an action on seven promissory notes, made by the defendant and one Noble, to John Ward, who endorsed them in blank. They were dated the 9th March, 1798, and payable to Ward, or order, on the first of October following. The cause was tried at the H erkimer circuit, before Mr Justice Radcliff.

*Samuel Jones, the father of the plaintiff, had ob- [*30] tained a judgment and execution against one Egleston whose lands were advertised for sale in March, 1793. The lands had been previously sold, for a valuable consideration by Egleston to the defendant and Noble, but subsequently to the judgment, and without knowledge of it by them. Jones attended at the time of the proposed sale, and the defendant and Noble, in order to secure themselves, entered into negotiation with Jones, and to induce him to desist from bidding against them, offered to pay him the amount of the execution, and the further sum of 150 dollars, the amount of the notes in question. The terms were accepted, and Jones said, at the time, that he had a further debt against Egleston, and had been at considerable trouble and expense in obtaining the judgment. Jones did not bid, but the defendant and Noble purchased the land, at the sale, for the amount of the execution, which they paid VOL. III.

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