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10 & 11 W. 3, CAP. 16, POSTHUMOUS CHILDREN. 877 So under a devise to all the children of A., except B., a posthumous child is entitled, Clarke v, Blake, 2 Ves. Jun. 672, see 2 Bro. C. C. 320; Doe v. Clarke, 2 H. Black. 389; and if one devises, in case he leaves no son at the time of his death, to J. S. and the testator dies leaving his wife enceinte of a son, this posthumous son is a son living at the testator's death, and J. S. is not entitled, Burdet v. Hopegood, 1 P. Wms. 486. So the same rule applies where there is a gift to children generally, the word be- ing evidently used in a general popular sense, without a particular de- sign of distinguishing between children born and children procreated, and it would therefore be superfluous to make mention of such objects ex- cept for the purpose of excluding them, a purpose scarcely to be sup- posed; indeed, though sometimes given otherwise in the dictionaries, poathumus is certainly the superlative of* posteruS, Trench, 644 Study of Words, p. 101. Therefore a gift to each of the children of the testator, who should be living at the time of his death, will accrue to a child born seven months after, Rawlins v. Rawlins, 2 Cox, 445, but although interest was directed by the will to be allowed from the testator's death, the Lord Chancellor directed it to be computed from the time of birth, only. So a gift to all the children of the testatrix's nephew R., born in the life-time of testatrix, includes a child of which the wife of R. was enceinte at the time of the death of the testatrix, though not born for several months afterwards; for inasmuch as it is adopted as a rule of construction, that a child en venire so. mere is within the intention of a gift to children living at the death of the testator, because plainly within the reason and motive of the gift, so a child en ventre so. were is to be considered within the intention of a gift to children born in the life- time of a testator, because it is equally within the reason and motive of the gift, Trower v. Butts, 1 Sim. & Stu. 181,5 and see Clarke v. Blake supra; Whitelock v. Heddon, 1 B. & P. 243; Northey v. Strange, 1 P. Wms. 340. In Treemantle v- Treemantle, 1 Cox, 248, it was indeed held that an immediate devise to great grand-children did not include a great grand- child en venire so, mere at the testator's death, but the other cases re- ferred to are subsequent to this. So also a posthumous child is within the provision in marriage articles for such children as shall be living at the death of its parents, Hale v. Hale, Prec. Ch. 50, and such a child, in charging for the portions of other children living at the death of the father, is included as then living, Beale v. Beale, 1 P. Wms. 244. So equity will stay -waste in its favour, Wallis v. Hodson, and a testamentary guardian may be appointed to it, see ante, Stat. 12 Car. 2, c. 24. So marriage and the birth of a posthumous child revoke a will as if the child were born in its father's life-time. Doe v. Lancashire, 5 T. R. 49. And it may be appointed executor; nay, where such is so appointed, if the mother bring forth two or three children at one burthen, they are all to be ad- mitted executors (though of course administration durante minoritate would be granted under Art. 93, sec. 67,® of the Code), and so of a legacy 5 But of. Villar v. Gilbey, (1905) 2 Ch. 301; (1906) 1 Ch. 583; (1907) A. C. 139. 6 Code 1911, Art. 93, sec. 67. \ |
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Alexander's British statutes in force in Maryland. 2d ed., 1912
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