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 confers 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. Bl. 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 re cover. 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 common 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. Blackall. 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] 1106. Palm. 359. "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. T. Raym. 315. Archer's Case. 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 to 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 answer 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 born in the lifetime of their respective fathers. (Laws, sess. 9, c. 12, s. 5.) This was the only sta tute provision in force at the time of the death of the father of the posthumous 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 particular 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 issue; (Watkins on Desc. 133, 131. 137, 138. and the authorities there cited; 1 Salk. 228; 2 Bl. Com. 169,) and if the person who so succeded to the remainder, took by pur[*27] chase, he could not be defeated by the birth of a pos Stedfast v. Nicoll. thumons 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, instead 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 use 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, supposel, 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- [*28] 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 it 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 was intended to avoid the inconveniences which might 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 brought 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. An 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 to a posthumous child; and, in a late 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 |