to his said son in fee, and on the same event to pay to each and every of his daughters who might be then living 1000l. unless they or either of them should have been previously advanced by the trustees, and then only so much as would make the portion of either of his daughters 1000l. The trustees were also directed at the time lastmentioned to deliver to his children all his household goods, &c. and to assign and deliver to his said son all the rest of his property, regard being paid to the minority of his children, so as not to invest them with any of it before the age of twenty-one. In addition to the three children in existence when the will was made, the testator left two sons; and the question was, whether they were entitled with their brother and sisters to the provision of maintenance during the life of the wife, which depended upon this, whether that provision was confined to children in esse at the date of the will? And Lord Alvanley, M. R. decided in favour of the after-born sons, upon the principle before stated, and would not permit the general expression "his children" to be narrowed by the context. He observed, that if it were not the case of parent and child, the inference must be made that the testator only intended to provide for his eldest son and two daughters; and his Honour remarked the impossibility under the will to admit after-born sons to a share of the residue, or to give them the sums provided for daughters. Next followed the case of Freemantle v. Taylor,(q) in which Sir William Grant, upon the weight of the last authority, made a like decree under similar circumstances. If, however, the intention of a testator be clear to confine his bounty to those children only who are living at the making of his will, that intention must prevail (as before observed) to the exclusion of children afterwards born. So that if A. bequeath 1000l. to the children of B. now living;(r) or to the three children of B. (who has that number at the date of the will) and another child is born to him before the death of the testator, it cannot participate in the legacy; because it is manifest that the three children in existence when the will was made, were the only persons designed to take the 1000l. ;(s) and the fourth child does not answer the description in the will, so that if one of the three died shortly after the date of the instrument, the fourth child could not be permitted to stand in his place. Thus in Sherer v. Bishop,(t) Nicholas Fayting gave a legacy of 30001. stock to be divided between the six children of John Sherer and Mary his wife, at their ages of twenty-one, &c. When the will was made, there were six children living, and a seventh was born during the life of the testator, of whom he took no notice in two codicils which he afterwards added to his will. And it was determined against the claim of the after-born child, since it was apparent that the testator meant only to provide for the six children of John and Mary Sherer, who were in esse when he made his will, and literally answered the description of the bequest. It is a consequence of the seventh child not answering the description in the will, that it could not be let in to take a share of the legacy, although one of the six children should die before the testa(g) 15 Ves. 363. (r) Ambl. 397. (a) 2 Cox, 191. (t) 4 Bro. C. C. 55. tor. (u) And for the same reason the re-publication of the will by the codicils, could not remove the original objection, since, although the will speaks as well from the dates of the codicils as from its own date, yet the difficulty remains, viz. how a seventh child can possibly take a share in a legacy given by will to six only in existence at its date. The case, however, would be different (as appears from that of Sherer v. Bishop, before in part stated) if the bequest in the will had been to the children of John and Mary Sherer, living at the date of it, without mentioning any number, for then the will, being made to speak from the making of the last codicil, and after the seventh child was born, that child answers the description of the bequest, which ought to be read, "to the children of John and Mary Sherer living at the date of the codicil." A Court of Equity, indeed, uses all possible ingenuity in construing testamentary expressions in such a manner as to include all children in existence at the testator's death. To this practice may be attributed the decision of the case next stated, in which the words "to every child that A. hath by his wife," had the same effect given to them as if the expressions had been "to every child that A. shall have by his wife at my decease." In ordinary acceptation, the word "hath," is applicable to objects in existence, but the Court thought it might consistently with its habit, and the intention of the testator, give a prospective sense to the term, in order to include the children of A. living at the death of the testator. The case alluded to is, Ringrose v. Bramham,(x) in which the testator bequeathed to Joseph Ringrose's children 50l. "to every child he hath by his wife Elizabeth," to be paid at twenty-one, with interest in the meantime. A legacy of 50l. was also given in similar terms to Christopher Rhodes's children. There were eleven children of Ringrose and Rhodes's living at the date of the will; other three were afterwards born, and alive at the death of the testator. And it was decided by the Master of the Rolls, that the three were entitled with the eleven children to legacies of 501. each, his Honour remarking, that he might fairly construe the word hath, so as to make it speak at the time the will took effect, and let in the children born between the making of the instrument and the death of the testator. With the case last stated, we shall close the first subdivision, and proceed to consider 2. When children living at the death of the testator, are entitled to the fund bequeathed to children, in exclusion of those after-born. Where a legacy is given to a descript class of individuals, as to children, in general terms, and no period is appointed for the distribution of it; the legacy is due at the death of the testator; the payment of it being merely postponed to the end of a year after that event, for the convenience of the executor or administrator in administering the assets. The rights therefore of legatees are finally settled and determined at the testator's decease.(y) Upon this principle is founded the well established rule, that children in existence at that period, or legally considered so to be, are alone entitled to participate in the bequest. As an example of this: (u) 3 Bro. C. C. 148. (x) 2 Cox. 384. (y)1 Ball & Beat, 459. The testator bequeathed his goods and chattels to two persons to pay debts, and the residue to be employed for the benefit of their children, by the testator's daughters, A. and B. in equal shares. The daughters had children born before the will was made, some afterwards and before the testator's death; and others after that event. The question was, which of those children should take ? And the Lord Chancellor determined that the division of the property was to take place at the death of the testator, and for that reason all the children born during the testator's life, were entitled, in exclusion of those born after his decease.(z) So in Viner v. Francis, (a) the bequest was "to the children of my late sister Mary Crowser, I give the sum of 1000l. to be equally divided among them." Mary had three children living when the will was made, one of them named William, died before the testator; so that if the terms of the bequest to children were to be construed to include those children only who were living at the date of the will, William's share would have lapsed. But if those terms were to be construed to include children who should be living at the death of the testator, the entire fund would belong to the two children who were then in existence, and answered the description of children of Mary.(b) In support of the first point, it was contended that the bequest to the children "of my late sister," was equivalent to a gift to them, nominatim, or was the same as if the testator had used the words, 66 to the three children of my late sister Mary." But the Master of the Rolls was of a different opinion, and declared in favour of the two survivors, upon the principle, that where a person bequeaths property among his own children generally, he is presumed to mean among such of them as shall be living at his death; a presumption equally applicable in the present in stance. It will make no difference as to the application of the rule, although the terms of the bequest be prospective, and no particular time of payment is mentioned; for the fund will nevertheless be divisible at the testator's death, which necessarily excludes after-born children. If then a legacy were given" to the children of my daughter Mary, begotten or to be begotten," as in the case of Sprackling v. Rainer ;(c) children coming into existence after the death of the testator would be excluded. The last are cases of simple unqualified bequests to children: And the rule which we have seen to apply to them, holds equally where the gift is general to children, with a condition annexed to it disposing of a child's share upon its dying under the age of twenty-one. The principle is this: The legacy being immediate to children, the period of vesting and division unite at the same point; viz. the death of the testator; whence it follows, that a child born after the happening of such event, must be excluded. Accordingly in Davidson v. Dallas,(d) the bequest was of 3000l. to the children of the testator's brother Robert Davidson; and if (z) Roberts v. Higman, 1 Bro. C. C. 532, in notes; and see Heathe v. Heathe, 2 Átk. 122. Coleman v. Seymour, 1 Ves. sen. 209. 2 Bro. C. C. 658. 2 Cox, 190, S. C. (b) See infra, chap. 8, sect. 4. VOL. I. G either of them died under the age of twenty-one, the share was to go to the survivors. Six children of Robert were living at the death of the testator, and other two were afterwards born. The question was, whether, as the eldest child had not attained twenty-one, (the supposed period for division of the fund,) the two after-born children were not entitled to parts of it. And Lord Eldon determined in the negative for the reason before-mentioned. It is to be noticed in relation to the above case, that the distribution of the legacy was not actually deferred until the children attained twenty-one, a circumstance which makes it an exception to that class of cases, after considered, in which children coming into esse between the death of a testator, and the period of the eldest or youngest child attaining twenty-one (the time when the fund was made divisible) have been allowed to partake of it. The principle which excludes children born after the testator's death when the fund is distributable at that period, will also prevent such children taking shares, notwithstanding the testator has directed part of it to be appropriated to secure the payment of annuities, which for that reason cannot be divided at his decease with the remainder. For although where the interest of a sum of money is bequeathed to A. for life, and the capital at his death to the children of B. all the children of the latter, born in the life-time of A. will be entitled, (and not those only in existence at the death of the testator, as will afterwards appear;) yet in the present case, as the appropriation operates as a mere temporary separation of a part of the fund to answer a particular object, and is no impediment to the division of the remainder at the death of the testator, (the time when the whole would unquestionably have been distributable if no such appropriation of a portion of it had been directed,) the money, so set apart to answer the particular purpose, must follow and belong to the persons entitled to the property out of which it was taken, those persons being such of the children of B. as were living at the death of the testator. The following is an authority in confirmation of these remarks: In Hill v. Chapman(e) the testator gave specific legacies in trust for all the children of his daughter, Sarah by name, and then in existence, to sons at twenty-three, and to daughters at twenty-one, with intermediate interest for their education, directing the surplus to accumulate for the benefit of the legatees, until it became divisible, with benefit of survivorship. He then proceeded to give the residue of his estate in trust for all his grand-children by his said daughter, to be applied for their benefit" as aforesaid." The testator afterwards gave by a codicil some annuities for life, directing 1000l. to be appropriated to answer them. A grand-child born after the death of the testator, and in the life time of the annuitants, claimed a share of the funds, which was attempted to be supported on the circumstance of the 1000l. not being distributable while the annuitants were alive; whence it was contended that the effect of the appropriation was to let in the after-born child not only to a share of the 1000l. but also to a share of the residue; and it was admitted (e) 1 Ves. jun. 405. 3 Bro. C. C. 391. S. C. ed. by Belt; and see Singleton v. Gilbert, 1 Cox, 68. on the part of the grand-child, that the phrase "as aforesaid," could not by any thing to which it was applicable, have the effect of postponing the distribution of the residue to a period beyond the testator's death. And Lord Thurlow, C. decreed against the claim of the grand-child, declaring that the whole residue was divisible at the death of the testator; and that since grand-children only who were living at that time were entitled, they alone could claim whatever should form part of it, as the 1000l. would do upon the deaths of the annuitants. And his Lordship observed, it would be repugnant to say that one part of the residue so given should go one way, and the other part (1000l.) another. Although such be the general rule in regard to the exclusion of children born after the testator's death, it is yet subject to alteration from the intention of a testator appearing upon the face of his will. If then the intention be manifest, (though not so directly expressed in words) to include all the children of a particular person, that intention will prevail, notwithstanding the terms of the gift would not alone let in after-born children. The distribution, therefore, will in such cases be deferred, in order to let in all children, whensoever born, to take shares of the fund. An instance of this kind occurred under Mr. Shepherd's will(f) by which he devised the residue of his real and personal estates to such child or children as his daughter Frances Gibson should have, whether male or female, in equal shares, (a devise, which, as we have seen, would not have permitted children coming in esse after the testator's death to have taken shares of the fund.) The testator then declared, that if his daughter should die without such issue, the residue should go to C. Jefferson and Joseph Pike, in equal proportions. By a codicil, he substituted Samuel Shepherd in the place of Mr. Jefferson, and devised to them the residue in common for life, in the event of his daughter's death, without leaving issue, but if she left any child or children, he directed that as certain annuities he had given by his will fell in, they should be divided among such children. It appears to have been the opinions of Lords Hardwicke and Northington, that all the children of Mrs. Gibson which she might leave at her death would be entitled. The ground of their Lordships' opinions must have been, that since the words of the bequest were sufficient to include all the children of Mrs. Gibson, and his intention to do so was clear, from the ultimate disposition of the fund upon the contingency of Mrs. Gibson's death. without leaving any child, that intention was to be performed, which necessarily postponed the final distribution of the property until the determination of Mrs. Gibson's life. If, indeed, it had been decided that children coming in esse after the testator's death were excluded, this strange effect might have been produced; if Mrs. Gibson happened to have no child living when the testator died, but had children at her decease, although they could not take any thing, yet their existence would have prevented the limitation ever taking effect, since it depended upon Mrs. Gibson's death without leaving a (f) Shepherd v. Ingram, Ambl. 448. 1 Ves. sen. 485. by the names of Gibson v. Rogers. |