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BLASSON v. BLASSON.

WESTBURY, L.C. Nov. 10, 21. Will-Construction-"Born and living." The fiction or indulgence of the law which treats a child en ventre sa mère as actually born, applies only for the purpose of enabling such child to take a benefit to which if actually born it would have been entitled: in all other cases, the word "born" must have its natural interpretation.

A testatrix bequeathed personal property to trustees to invest and accumulate, and when and so soon as the youngest of the children of her three nephew and nieces who should have been "born and living" at the time of her decease should arrive at the age of twenty-one years, then the stock, with its accumulations and increase, to be divided equally among all such children as should be then living. There were several children of the nephew and nieces who were actually born at the decease of the testatrix, two others were en ventre sa mère, and several others were both begotten and born after her decease: -Held, first, varying the decree of one of the Vice Chancellors, that the children who were en ventre sa mère at the time of the testatrix's death could not be deemed to have been then born and living, and, consequently, that the period of distribution was when the youngest of the children actually born attained the age of twenty-one years; and, secondly (affirming the decision of the Vice Chancellor), that all the children of the nephew and nieces living at the time of distribution, whenever born, were entitled to share in the fund.

This was an appeal from a decision of Vice Chancellor Kindersley, reported 33 Law J. Rep. (N.S.) Chanc. 403.

The bill was filed for the purpose of obtaining the opinion of the Court upon certain questions arising under the will of Sarah Blasson, dated the 8th of August 1843, by which the testatrix devised to the plaintiffs certain stock, real estate and shares, upon trust for conversion, investment and accumulation; and when and so soon as the youngest of the children of the testatrix's three nephew and nieces who should have been born and living at the time of her decease should arrive at the age of twenty-one years, then the said stock,

with its accumulations and increase, was to be equally divided among all such children of her said nephew and nieces as should be then living, share and share alike; and if at the time of such division any such child or children should not personally make his or her legal claim to his or her portion thereof within eighteen calendar months after such division had been or might have been made, he, she, or they were to be considered as dead, and the trustees for the time being of such accumulated property were to be at full liberty, if they should see fit, to divide the share or shares of such absent person and persons between all the rest of such children then living and present, share and share alike, in addition to the original share; and the accumulations were to be for no other use, trust or purpose whatsoever than was aforesaid written of and concerning the same.

The testatrix died in 1844, the trust funds were converted and invested, and, with the accumulations, amounted at the time of filing the bill to 13,9287. 2s.

The youngest of the children of the nephew and nieces "born and living" at the decease of the testatrix attained twentyone in August 1863, at which time there were living five such children of the nephew and six such children of the nieces. There were also living two children of the nieces who were en ventre sa mère at the death of the testatrix, and born within nine months after, and there were nine other children, who were both begotten and born after the death of the testatrix.

The two questions arising upon this state of facts were first, whether the children born after the decease of the testatrix, or any and which of them, were entitled to a share of the trust fund; and, secondly, in case they were so entitled, whether the period of division must not be postponed until the youngest of such children attained twenty-one.

Another question was also raised, viz. whether, some of the children being resident abroad, the trustees might pay the share of any such child to his attorney without his coming to this country personally to receive his share. This question the Vice Chancellor decided in the affirmative, and there was no appeal from his decision upon this point.

Upon the other two points his Honour held, first, that the children en ventre sa mère at the death of the testatrix must be considered to have been then born and living, and, consequently, that the period of division was to be postponed till the younger of them attained twenty-one; and, secondly, that all the children of the nephew and nieces of the testatrix living at the time of distribution, whenever born, were entitled to share in the fund.

The children actually born in the lifetime of the testatrix appealed from this decree.

Mr. Glasse, Mr. Cadman Jones and Mr. Grenside, for the appellants, cited and distinguished

Doe v. Clarke, 2 H. Black. 399.
Trower v. Butts, 1 Sim. & S. 181; s. c.

1 Law J. Rep. Chanc. 115.
Whitelock v. Heddon, 1 Bos. & P. 243.
Gibson v. Gibson, 2 Freem. 223.
Burdet v. Hopegood, 1 P. Wms. 486.
Millar v. Turner, 1 Ves. 85.
Bennett v. Honywood, Amb. 708.
Lancashire v. Lancashire, 5 Term Rep.

49.

Mogg v. Mogg, 1 Mer. 654.

Mr. Baily and Mr. J. T. Humphry, for the two children who were begotten but not born at the time of the testatrix's decease.

Mr. Toller and Mr. C. Herbert Smith, for the nine children who were both begotten and born after the decease of the testatrix. Mr. J. Hinde Palmer and Mr. Gill, for the trustees of the will.

The LORD CHANCELLOR (Nov. 21).-In Trower v. Butts (1), 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 nephews, born in the lifetime of the testatrix, included a child of which the wife of the nephew was enceinte at the death 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

(1) Ubi suprà.

decisions in our law. The same rule prevails in other systems of jurisprudence. In the Digest, Book 1, Title 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 section 26, it is said, "Qui in utero sunt in toto pene 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 on 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 nephew 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 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 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 this would not be warranted by the principle of the 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

On the other point I agree with his Honour. 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. Costs of all parties out of the fund.

The order of the Court, made in an administration' suit, directing distribution of a testator's estate, is a complete indemnity to executors against claims by third parties; and the Court, in requiring funds to be set apart or undertakings given, has in view, not the protection of the executor, but the possible rights of third parties.

Proceeds of sale of the testator's residuary estate ordered to be paid to the residuary legatees upon their personal undertaking to make good any claim that might arise in respect of shares in a joint-stock company sold by the executors, but not transferred into the purchaser's name.

This was a suit for the administration of the estate of William Headland, who by

his will gave all his personal estate to his executors, the defendants Francis John Headland and Edward Headland, upon trust as to one-third thereof, to assign, pay and deliver the same to the plaintiff, Isabella Ann Williams, and as to the remaining two-thirds upon trust for sale and conversion, and investment of the proceeds of such sale and conversion, and to pay the annual income arising from such investment to A. M. Headland for life, and after his death to pay the securities upon which such two-thirds might be invested to E. M. Headland and C. Headland absolutely.

The testator died on the 3rd of April 1860. At the time of his death he was possessed, among other property, of ten shares in the Wheal Ella Mine and five shares in the East Buller Mine, both in Cornwall.

Those shares had been sold by the testator's executors since his death, for 2s. 6d. per share, but they had not been transferred into the name of the purchaser. The executors said they were informed and believed that the testator's estate might be made liable for future calls upon the above shares notwithstanding such sale, and they contended that they were entitled to have a fund set apart out of the testator's residuary estate to protect them from any liability in respect of such calls. They accordingly asked that 2007., 37. per cent. consols, might be set apart for that purpose.

Mr. Malins and Mr. W. H. Melvill contended that the executors were not entitled to have any part of the testator's estate set apart as an indemnity in respect of the shares in question. The decree of the Court would be a sufficient indemnity to the executors

Waller v. Barrett, 24 Beav. 413; s. c.

27 Law J. Rep. (N.S.) Chanc. 214. And if any liability on account of the above shares should arise after the decree of the Court, the remedy would be against the legatees

Bennett v. Lytton, 2 Jo. & H. 155. Davies v. Nicolson, 2 De Gex & J. 693; s. c. 27 Law J. Rep. (N.S.) Chanc. 719.

Mr. Bacon and Mr. Toulmin, for the executors, contended that they were entitled to the indemnity claimed by them. Section 3. of the 22 & 23 Vict. c. 35. exone

rated executors from liability only, in the case of leaseholds sold by them.

STUART, V.C. I observe that Vice Chancellor Wood, in the case of Bennett v. Lytton, took care to put his order upon the broadest ground. I cannot imagine anything more dangerous than to throw the least doubt upon the extent to which a decree of this Court is an indemnity to executors. If this Court orders a sum of money to be paid to an executor, or orders an executor to pay a sum of money, or takes it out of his hands, that order is generally speaking an indemnity to the executor. But the Court is always careful of the case of those who may have demands against the estate not at present made or not at present appearing; and for this reason, as Lord Cottenham long ago pointed out, the old practice of the Court was, that every legatee upon the first payment of his legacy, through a decree of the Court, was obliged to enter into a recognizance to refund in case demands should be made against the estate which did not then appear. That practice gradually got into disuse; but that disuse of the Court clearly shews that what the Court had in view was not merely the indemnity of the executor, but the rights of those who might have demands against the estate not then appearing, so as to preserve those demands against the assets in the hands of those who were to receive them from the Court. The Master of the Rolls, in Waller v. Barrett, had a case before him of a demand for an indemnity in the shape of setting apart a specific fund to answer an apprehended breach of covenant in a lease. The chief clerk certified upon a reference for providing a proper indemnity,--the case being one in which an indemnity was necessary, that recognizances by the legatees, who were to receive the money out of Court, would be a sufficient indemnity; and so the Master of the Rolls held, in a judgment in which he reviewed the authorities and shewed very clearly the principle upon which the Court acts. I notice that case because it was one in which there was no decree for general administration, and in which, therefore, the executors were not indemnified by the order of the Court in the administration of the estate. It follows from what he pointed out that when the

Court too implicitly follows the decisions, a great deal of injustice is done, and more is done than is necessary with reference to the rights of those who may be entitled to demands against the estate, or than the proper indemnity of the executors requires. The general rule is, that what the Court orders to be done as to an estate is an indemnity to the executors, as the Master of the Rolls stated in the case of Waller v. Barrett. I do not mean to say that where an executor is ordered to pay a sum in a suit, which is not for the administration of the estate, it will protect him from creditors. But I apprehend in a suit for the administration of an estate, if the Court orders an executor to pay money that is a proper security to him; for unless that were so, it would paralyze the functions of this Court. Now, what I have to look at is, what is asked on the part of the executors, and what on the part of the legatees, and what it is proper for the Court to do. The case is one in which the liability which is apprehended is in respect of shares which have been sold, but have not been registered in the name of the purchaser. It is impossible to say that in such a case there may not be some demand against the estate, and the liability of the executors is thus brought nearer than under other circumstances it might be. But to set apart a sum to insure the liability, would seem to be a great injustice to the residuary legatees, and more than the executors, upon any principle, are entitled to ask. If, in this case, the residuary legatees undertake to make good any liability, or to answer any demand that may be made in respect of these shares, which have been sold, but not registered in the name of the purchaser, that is enough, in my opinion, to enable them to receive the money out of court. Unquestionably, the order of the Court, so far as the liability of the executors is concerned, is a complete indemnity; and I would not have it supposed that I entertain a moment's doubt about it. Payment would be made upon the residuary legatees undertaking to make good any liability that might arise in respect of the shares.

Pleading-Demurrer—Mortgage by Executors, being also Beneficial Devisees charged with Payment of Debts.

Persons who under a will were executors and also beneficial devisees subject to debts and legacies, borrowed money on mortgage of the devised real estate. The testator's property proved insufficient, apart from the premises thus charged, to pay his debts; and a bill was filed, by a creditor, seeking to have the mortgagees postponed to the testator's unsatisfied creditors, and stating circumstances in the transactions respecting the loan leading to the implication that the mortgagors had been dealt with as beneficial owners rather than as executors. On an appeal from an order of one of the Vice Chancellors, overruling a general demurrer founded on the proposition that in order to postpone the mortgagees they must be fixed with actual knowledge that the money was not wanted for payment of debts and legacies, -Held, by Lord Justice Knight Bruce, but dubitante Lord Justice Turner, that a sufficient primâ facie case had been stated to entitle the plaintiffs to call for an answer, and that the demurrer must be overruled, without costs, reserving the benefit of the defence to the hearing.

The fact that, in the dealings for a loan, executors who happen to be also beneficial owners have been treated with in their latter character, is not sufficient ground for inferring that the money was not borrowed to pay the testator's debts-per Lord Justice Turner.

Robert Plummer and Matthew Plummer the younger, in equal shares, all his hereditaments not thereinbefore disposed of, and all the residue of his estate, both real and personal, subject to the payment of an annuity to his wife, Mary Plummer, and of his debts, and the costs and charges of proving and executing his will; and he appointed Robert Plummer and Matthew Plummer the younger his executors, and directed that their receipts should be sufficient discharges for all monies to be received by them pursuant to the will. The testator died on the 25th of December 1856, and his will was proved by the executors on the 19th of January 1857.

The plaintiff, Edward John Collingwood, was a creditor of the testator's estate for a sum of 8,000l., secured with interest by a charge on certain lands of the testator and by the testator's covenant for repayment; and on the 4th of November 1859 he instituted, on behalf of himself and all other the unsatisfied creditors of the testator, a suit (Collingwood v. Plummer) against Robert Plummer and Matthew Plummer the younger and Mary Plummer, for the administration of the testator's estate. Accounts were carried in by Robert and Matthew Plummer the younger in that suit as the testator's executors and trustees; and in those relating to the real estate one item on the debit side was as stated below (1).

Also, in a schedule to an affidavit by Robert Plummer, verifying the accounts, there was the following item: "14,000Z.A mortgage debt, exclusively of interest due, to Geo. Watts Russell and others, being a first charge on testator's freehold land at Byker, numbered 3 in the third schedule, by indenture dated the 5th day of March 1857. Note. This mortgage was arranged for by the testator and completed by this defendant and his co-executor." The plaintiff was of opinion that it was not made out

Amount received.

1857, March 13.

Trustees of Dr. J. P. Watts Russell and others.

£14,000.