the date of the will, (a) and those only; and a gift to children living at the decease of A will extend to children existing at the prescribed period, whether the event happens in the testatator's lifetime, (supposing that they survive him,) or after his decease. (b) The following are the rules of construction regulating the class of objects entitled in respect of period of birth under general gifts to children.

1st. That an immediate gift to children, (i. e. a gift to take effect in possession immediately on the testator's decease,) whether it be to the children of a living (c) or a deceased person, (d) and whether to children simply or to all the children, (e) and whether there be a gift over *in case of the decease of any of the children under age or not, (f) comprehends the children living at the testator's death (if any), and those only; notwithstanding some of the early cases, which make the date of the will the period of ascertaining the objects. (g)

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It is scarcely necessary to observe, that this and the succeeding rules apply to issue of every degree, as grandchildren, greatgrandchildren, &c., though cases to the contrary are to be found, especially at an early period. As in Cook v. Cook, (h) where under an immediate devise, (i. e. a devise in possession,) to the issue of J. S. (which was held to apply to the children and grandchildren,) a son born after the death of the testator was allowed to participate.

(a) James v. Richardson, 1 Vent. 334; 2 Vent. 311; Burchet v. Durdant, T. Raym. 330. See also Attorney-General v. Bury, 1 Eq. Ca. Ab. 201; Crosby v. Clare, 3 Swanst. 320, n.; Abney v. Miller, 2 Atk. 593; Blundell v. Dunn, 1 Madd. 433.

(b) Allan v. Callow, 3 Ves. 289. Where a testator gave a legacy to A his daughter for life, and after her death to his grandson B, and if he should die in the lifetime of A, then to the children of C who should be then living; it was held, that the bequest was confined to the children of C living at the death of A, and that the point was so clear, that the costs of the suit occasioned by the refusal of the execu tor to pay the legacy without the opinion of the court, must fall on himself. Harvey v. Harvey, 3 Jurist, 949. And here it may not be amiss to observe, that a child who is made a legatee for life, is not thereby incapacitated from claiming under a bequest of the ulterior interest to the testator's children, living at his (the testator's) decease. Jennings v. Newman, 3 Jur. 748.

(c) 2 Vern. 105; 1 Eq. Ca. Ab. 202, pl. 20; Pre. Ch. 470; 2 Vern. 545; 1 Ves. Sen. 209; 2 Ves. Sen. 83; Amb. 273; Id. 348; 1 B. C. C. 532, n.; Id. 500; 1 Cox, 68; 2 Cox, 190; 2 B. C. C. 658; 3 B. C. C. 352; Id. 391; 14 Ves. 576.

(d) Viner v. Francis, 2 Cox, 190.

(e) Heath v. Heath, 2 Atk. 121; Singleton v. Gilbert, 1 B. C. C. 542, n.; Cox, 68; Scott v. Horwood, 5 Madd. 332.

S. C. 1

(f) Davidson v. Dallas, 14 Ves. 576. But as the gift over necessarily suspends the distribution as to all, until the eldest attains twenty-one, ought not the children born in the interval to have been let in, seeing that these rules always aim at including as many objects as possible?

(g) See Northey v. Strange, 1 P. W. 341; S. C. nom. Northey v. Burbage, Gilb. Rep. Eq. 136.

(h) 2 Vern. 545.

1 A legacy to the children of A is to be divided among those born at the death of the testator. Simms v. Garrot, 1 Dev. & Bat. Eq. 393. See Hill v. Chapman, 1 Ves. (Sumner's ed.) 405, note (b) and cases cited.

2dly. That where a particular estate or interest is carved out, with a gift over to the children of the person taking that interest, or the children of any other person, such gift will embrace not only the objects living at the death of the testator, but all who may subsequently come into existence before the period of distribution. (a) Thus in the case of a devise or bequest to A for life, and after his decease to his children, or, (which is a better illustration of the limits of the rule, since, in the case suggested, the parent being the legatee for life, all the children who can ever be born * necessarily come in esse during the preceding interest,) to A for life, and after his decease to the children of B, the children (if any) of B living at the death of the testator, together with those who happen to be born during the life of A, the tenant for life, are entitled, but not those who may come into existence after the death of A. (b) The rule is the same where the life interest is not of the testator's own creation, but is anterior to his title. (c)

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In cases falling within this rule, the children, if any, living at the death of the testator, take an immediately vested interest in their shares (d) subject to the diminution of those shares, (i. e. to their being divested pro tanto,) as the number of objects is augmented by future births, during the life of the tenant for life; and, consequently, on the death of any of the children during the life of the tenant for life, their shares (if their interest therein is transmissible) devolve to their respective representatives; (e) though the rule is sometimes inaccurately stated, as if existence at the period of distribution was essential.2 (ƒ)

(a) 2 Mod. 104; 1 Atk. 509; 2 Atk. 329; Amb. 334; 1 Ves. Sen. 111; 1 Cox, 327; Cowp. 309; 1 B. C. C. 542; Id. 386, 537; 5 Ves. 136 [Sumner's ed. Perkins's note (a)]; 8 Ves. 375; 15 Ves. 122; 10 East, 503; 1 Mer. 654; 2 Mer. 363; 1 B. & B. 449; 3 Dowl. 61; 4 Madd. 495.

(b) Ayton v. Ayton, 1 Cox, 327.

(c) Walker v. Shore, 15 Ves. 122. (d) Ante, 74.

(e) Attorney-General v. Crispin, 1 B. C. C. 386; Devisme v. Mello, Id. 537; Middleton v. Messenger, 5 Ves. 136.

(f) See judgment in Matthews v. Paul, 3 Swanst. 339; Houghton v. Whitgreave, 1 Jac. & Walk. 150. See also Crooke v. Brookeing, 2 Vern. 106.

1 Carroll v. Hancock, 3 Jones, Law, (N. C.) 471.

2 To let in children born after the death of the testator, there must be some subsequent period of distribution fixed, or it must depend on some contingency, and not be left indefinite. Swinton v. Legare, 2 M'Cord, Ch. 440; Jenkins v. Freyer, 4 Paige, 47; Battel v. Ommaney, 4 Russ. 70. See Turner v. Patterson, 5 Dana, 292.

A testator devised all the remainder of his estate, both real and personal, to his daughter S. A. and the children born of her body, including all his wife had the improvement of during her life, after the decease of his said wife. S. A. had three children when the will was made, and a fourth was born afterwards in the testator's lifetime, all of whom survived the testator, and two more were born after his decease. It was held, that "the children of her body," meant all the children she might have. "This will not appear," remarks Mr. Justice Wilde, "to be a strained construction of the words, when it is observed, that as to part of the property, the devise was prospective; it being a remainder after a life estate to the widow. If the devisor had intended to

The preceding rule of construction applies not only where the future devise (i. e. future in enjoyment) consists of a limitation of real estate by way of remainder, or a corresponding gift of personalty, (of which there cannot be a remainder, properly so called,) but also to executory gifts made to take effect in defeasance of a prior gift. Therefore, if a legacy be given to B son of A, and, if he shall die under the [ 77 ] age of twenty-one, to the other children of A, it is clear that on the happening of the contingency all the children who shall then have been born, (including of course, the children, if any, who may have been living at the testator's death,) are entitled. (a) The principle, indeed, seems to extend to every future limitation.

But it is to be observed that the subjecting of lands devised to trusts for partial purposes, as the raising of money, payment of annuities, or the like, by which the vesting in possession is not postponed, does not let in children born during the continuance of those trusts.

Thus, in the case of Singleton v. Gilbert, (b) where A devised her real estate to trustees for five hundred years, to raise £200, and then to other trustees for one thousand years, out of the rents to pay the interest thereof, and certain life annuities; and, subject to the said terms, she gave the estate to all and every the child and children of her brother T. in tail, as tenants in common. One question was, whether a child born after the death of A, but in the lifetime of the annuitants, could take jointly with two others born before A's death. It was insisted, on behalf of such child, that the devise was to be considered as vesting at the time when the trusts of the term were satisfied, and, consequently, that it let in all such children of T. as ⚫were then alive. Lord Thurlow admitted that where the legacy is given with any suspension of the time, so as to make the gift take place either by a fair or even by a strained construc

(a) Haughton v. Harrison, 2 Atk. 329; Ellison v. Airey, 1 Ves. Sen. 111. [See the remarks on this case in Mr. Eden's note to Andrews v. Partington, 3 Bro. C. C. (Perkins's ed.) 404, note (a)]; Stanley v. Wise, 1 Cox, 432.

(b) 1 Cox, 68; S. C. 1 B. C. C. 542, n.

limit his bounty to the children living when he made his will, he would have named them, or used words to show, that he meant so to limit it." Annable v. Patch, 3 Pick 363. In the above case, S. A. and her four children, living at the time of the testator's death, took an estate together in fee simple in the real property-in the part in which the widow had a life estate, a vested remainder, which opened to let in the two after-born children, and in the rest a qualified fee, so limited, as to admit their claims by way of executory devise. See Dingley v. Dingley, 5 Mass. 535. And it seems also, that the after-born children were entitled to share in the personal property by way of executory devise. Ib. See Dingley v. Dingley, 5 Mass. 535, 537; Parkman v. Bowdoin, 1 Sumner, 366, 367; Weston v. Foster, 7 Metcalf, 300; Gardner v. James, 6 Beavan, 170; Yeaton v. Roberts, Foster, (N. H.) 459; Ballard v. Ballard, 18 Pick. 41; Phillips v. Johnson, 14 B. Monroe, (Ky.) 172; Ward v. Saunders, 3 Sneed, (Tenn.) 387.

tion, (for so, he said, some of the cases go,) at a future period, then such children shall take as are living at that period. But this was an estate given directly, although given

charged with the terms, and therefore he could not [ 78 ] consider the after-born children as entitled.

The reader will perceive, that the rule which makes a gift to children comprehend all who come into existence before the time of distribution, is peculiar to these favored objects; (a) for, according to the general rules governing the vesting of estates, and which have been applied to relations, (b) and other classes of objects, the gift clearly would apply, and be confined, to those who were living at the death of the testator. It is true, indeed, that this peculiarity of construction extends to brothers and sisters; thus a gift to A for life, and after his death to his brothers, has been held to include the brothers born during the life of A; (c) but such a gift is substantially a gift to children, the only difference being, that they are described by reference to their fraternal, instead of their filial, relation; (d) and the same observation applies to a gift to nephews and nieces, (e) which is in effect a gift to the children. of brothers and sisters. Such cases, therefore, are no exceptions to the statement, that the rule in question is peculiar to gifts to children.

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3dly. It has been also established, that where the period of distribution is postponed until the attainment of a given age by the children, the gift will apply to those who are living at the death of the testator, and who come into existence before the first child attains that age, i. e. the period when the fund becomes distributable in respect of any one object, or member of the class.1 (f) And the result is the same where the expression is "all the children." (g)

(a) Many cases might be suggested in which a gift to objects in esse would open and let in future objects; as to A, and the heirs of the body of B a person living, or to A and any wife whom he shall marry. See Mutton's case, Dy. 274, b.

(b) Ante, 52.

(c) Devisme v. Mello, 1 B. C. C. 536; Doe d. Stewart v. Sheffield, 13 East, 526. See also Leake v. Robinson, 2 Mer. 363.

(d) It is clear that a gift to brothers and sisters extends to half-brothers and sisters. The point was adverted to arguendo, in Leake v. Robinson, 2 Mer. 363, which did not require its determination.

(e) Balm v. Balm, 3 Sim. 492.

(f) 1 Ves. Sen. 111; 1 B. C. C. 530; Id. 582; 3 B. C. C. 401; Id. 416; 2 Ves. Jun. 690; 3 Ves. 730; 6 Ves. 345; 8 Ves. 380; 10 Ves. 152 [Sumner's ed. note (a)]; 11 Ves. 238; 3 Sim. 417, 492; 2 Kee. 221; Hughes v. Hughes, 3 Bro. C. C. 434. But see 5 Sim. 174.

(g) Whitbread v. Lord St. John, 10 Ves. 152 [Sumner's ed. note (a)].

1 See 2 Maddock, Ch. 13, 21, 22; 2 Williams, Ex. (2d Am. ed.) 797, 798; Hill v. Chapman, 1 Ves. (Sumner's ed.) 405, and note. A bequest of a residue "unto all the children of B. equally, when they shall severally attain the age of twenty-five years," includes all the children born before one attains that age, although born after the death of the testator, but does not include those born after one attains that age.

This rule of construction must be taken in connection with, and not as in any measure intrenching upon the two preceding rules. Thus, where a legacy is given to the children, or to all the children of A to be payable at the age of twenty-one, or to Z for life, and after his decease to the children of A, to be payable at twenty-one, and it happens that any child in the former case at the death of the testator, and in the latter at the death of Z, have attained twenty-one, so that his or her share would be immediately payable, no subsequently born child will take; but if at the period of such death no child should have attained twenty-one, then all the children of A who may subsequently come into existence before one shall have attained that age, will be also included. (a)

And the construction is not varied by the circumstance of the trustees being empowered to apply all or any part of the shares of the children for their advancement before the distribution, (the word "shares" being considered as used in the sense of "presumptive shares;") (b) nor is any such variation produced by a clause of accruer, entitling the survivors or a single survivor, in the event of the death of any or either of the children, as the expression "said children" so occurring, means the

children designated by the prior gift, whoever they [80] may be, and is, therefore, applicable no less to an after-born child, whom the ordinary rule of construction admits to be a participator, than to any other. (c)

The rule in question, as it respects the exclusion of children born after the vesting in possession of any of the shares, has been viewed with much disapprobation; and Lord Thurlow, in Andrews v. Partington, said, he had often wondered how it came to be so decided; there being no greater inconvenience in the case of a devise than in that of a marriage settlement, where nobody doubts that the same expression means all the children. In marriage settlements, however, one at least of the parents generally takes a life interest, so that the shares do not vest in possession until the number of objects is fixed. The rule has gone, Lord Eldon remarked, (d) upon an anxiety to provide for as many children as possible with convenience. Undoubtedly it would be very inconvenient, especially in the case of legacies payable instanter, if the shares of the children were, by reason of the possible accession to the number of objects by future births, unascertainable during the whole life

(a) Clarke v. Clarke, 8 Sim. 59. See also Matthews v. Paul, 2 Swanst. 328. (b) Titcomb v. Butler, 2 Simons, 417.

(c) Balm v. Balm, 3 Simons, 492.

(d) Barrington v. Tristram, 6 Ves. 348.

Hubbard v. Lloyd, 6 Cush. 522; Curtis v. Curtis, 6 Madd. 14; Gilbert v. Boorman, 11 Vesey, 238; Andrews v. Partington, 3 Bro. C. C. 401; Leake v. Robinson, 2 Meriv. 393.