child should not be born till after the person's decease, he will not be permitted to claim the legacy; for the policy of law is in favour of vested interests; and the law will not in this case suspend the rights of subsequent legatees on account of the possibility of a prior legatee coming into existence who would be entitled, but who, by not being in esse to take in succession, was incapable of accepting the bequests at the period intended by the testator. The cases which have been stated are sufficient to establish the rule before mentioned in regard to the admission or exclusion of afterborn children. And the authorities which have been determined in conformity with them, are referred to in note(t). But here we may remark, as in the instances before produced, that where a testator's intention is clear, that all the children, a specified individual may ever have, shall participate in a legacy given to them, upon the contingency of some third person dying before a particular period, and that contingency happens; in such a case not only the children in existence at the happening of the contingency shall be entitled, but those also who come into esse during the life of their parent, but after the happening of such contingency. Thus in the case of Hutcheson v. Jones, (u) in which Edith Hutcheson, being entitled to the reversion of a moiety of freehold estates, expectant on the death of William her father, bequeathed 500l. out of that estate (which she devised to her sister Ann Jones) to her niece Maria Hutcheson, daughter of her brother Robert; to be paid when convenient to Ann Jones, with interest from three months after the testatrix's death. And after such payment she directed the money to be placed at interest and paid to Maria Hutcheson upon her marriage, or at the age of twenty-one. "And should Maria not survive either of those periods, and there be no child orchildren of Robert Hutcheson, then the testatrix would have the 500l. revert to Ann Jones; but in case of other children of Robert Hutcheson, she would have the said sum equally divided, share and share alike." Upon the death of William Hutcheson, the tenant for life, Philip Jones and his wife Ann entered into possession of the estates. Afterwards Maria Hutcheson, died under age, and without ever having been married. Then Robert Hutcheson died, leaving a son William, born after Maria's death, and the plaintiff, B. Hutcheson, a child of a second marriage. The question was, whether William, the son, and the plaintiff, were entitled to the 500l. they not being in esse at the death of Maria Hutcheson? And Sir Thomas Plumer, V. C. determined in the affirmative. His Honour, in detailing the reasons for his decree, observed, that the fund was reversionary, which was a strong circumstance: that it appeared to have been the testatrix's intention, that Mrs. Jones should not take, unless, according to the words of the will," there should be no child or children of Robert Hutcheson;" that he could not declare the fund to revert to her on the death of Maria, unless (t) Graves v. Boyle, 1 Atk. 509. Haughton v. Harrison, 2 Atk. 329. Middleton v. Messenger, 5 Ves. 136. Pulsford v. Hunter, 3 Bro. C. C. 417. Ayton v. Ayton, 1 Cox. 327. Paul v. Compton, 8 Ves. 375. Walker v. Shore, 15 Ves. 122. Tebbs v. Carpenter, 1 Mad. 290. Crone v. Odell, 1 Ball & Beat. 449. (u) 2 Madd. 124. he were to add the words " born at her death ;" and that if after-born children were excluded, it must be against the express words of the will, which only gave the money to Mrs. Jones, in the event of there being no child or children of Robert Hutcheson. We shall next consider 5. The instances where, in order to answer the occasions of families, and the intent of parties, "younger children" have been construed to mean, such children only as were not entitled to the family or real estate. Accordingly, in cases of provisions made by parents, or persons in loco parentum, for younger children either by deed or will, the family estate being limited to the eldest son and his issue, remainder to his brothers and their issues successively, a younger brother eventually becoming entitled to the family estate before the portions were payable, has been considered an eldest child, so as to exclude him from the benefit of the provision for youngest children. The leading case upon this subject is Chadwick v. Doleman ;(x) in which Sir Thomas Doleman having a power by marriage settlement to appoint portions among younger children, to be raised within six months after his death, appointed 2600l. part of the aggregate sum to Thomas, describing him as his second son. The eldest son afterwards died without issue; upon which event Thomas becoming the eldest, and succeeding to the estate, his father made a new appointment of the 2600l. among his then younger children; and the only question was, whether the first or second appointment should stand? And it was determined in favour of the latter, upon the ground, that Thomas's continuing a younger child up to the period of the provision taking effect in point of payment, was a tacit or implied condition, going along with the appointment, and that as such condition failed, the first appointment to Thomas must be considered nugatory, and that therefore the second appointment must be established.(y) The last case was approved by Lord Hardwicke in that of Lord Teynham v. Webb,(z) in which a grandmother, acting in loco parentis, provided portions for her younger grand-children to be raised after the deaths of herself and daughter, Lady Audley, and to be subject, as to the proportions, to the appointment of Lord Teynham, the father of those children; but if he made no appointment, the fund was to be divided among them equally. His Lordship had three children, Philip, Mary, and the plaintiff, and he died without making an appointment. Philip, the eldest son, afterwards died during the life of his grandmother, and the plaintiff becoming the eldest son, succeeded to the title and estate. The question was, whether he was entitled to a share in the fund provided as portions for younger children? And Lord Hardwicke determined in the negative; observing, that the father's death without appointing made no alteration in the rule prevailing in those cases; but that the same condition was to be implied in the direction in default of appointment, as in the execution of the power, for "younger children" could not be construed to mean one thing in case of default of appointment, and another in the execution of the power. The two last cases were followed by Hall v. Hewer,(a) Loder v. (x) 2 Vern. 528. (y) See 2 Ves. sen. 211. (z) Ibid. 198-210. (a) Ambl. 203. Loder,(b) before Lord Hardwicke; by Broadmead v. Wood, (c) before Lord Thurlow; by Lady Lincoln v. Pelham, (d) before Lord Eldon, a case resembling that of Lord Teynham v. Webb, in the circumstance of a grandmother being the provider of the portions; by Bowles v. Bowles, (e) before the same Judge; and by Matthews v. Paul,(f) before Sir Thomas Plumer. In all these cases the determinations agreed with the two last stated. It is to be remarked, that the several authorities before-mentioned and referred to, were cases where the change of character from a younger to an eldest son occurred previous to the period when the funds became distributable. This observation is important; for if the time of division arrive before a younger become an eldest child, distribution will be considered as having been made at the appointed period, and then the change in the description of the younger child will have happened too late to prejudice the interests which he took while he continued in that character,(g) except under very special circumstances, an instance of which occurred in Leake v. Leake, (h) a case of great complexity. It appears that John, a younger son, retained that description at the death of his father, and as such, was entitled, with other younger children then living, under the father's will and codicil (after bringing into hotchpot advancements made to him and them by their father during his life, so as to place all of them upon a perfect equality,) to a share of the father's residuary estate, which was so given as to be distributable among younger children at the father's death, and which was accordingly so divided by their mother. After this, and while the mother was in existence, John became an eldest son, and succeeded to estates charged by marriage settlement with portions for younger children to be raised after the mother's death, the amount of each child's share to be regulated by advancements which might have been made to them by their father, whilst living, as directed, in regard to his residuary estate given by his will and codicil. John, notwithstanding his change of character in the life-time of his mother, from a younger to an eldest child, was directed by Lord Eldon to be considered as a younger child in the account to be taken among the younger children; thus necessarily entitling him (though no longer a younger, but the eldest) to a share of the money now to be raised for younger children under the settlement, the mother being dead; and also bringing again into account the residuary estate long before distributable, and distributed while John was one of the younger children: two circumstances, which, taken in the abstract, would have shaken the rules before considered to be established by preceding cases. But Lord Eldon formed his opinion and judgment upon the father's intention apparent in his settlement, will, and codicil, to provide and make equal provision for all his younger children, as well those living at his own as at his wife's death, and who, with that view, had disposed of the whole of his property in relation to the portions to be raised under the settlement; an equality that could not be at (c) 1 Bro. C. C. 77. (b) 2 Ves. 531. (d) 10 Ves. 166–172. (e) 10 Ves. 177. and see Savage v. Carroll, 1 Ball & Beat. 265. (ƒ) 2 Wils. C. C. 64. (g) 1 Ball & Beat. 278. 2 Ves, sen. 211, Windham (h) 10 Ves. 477. v. Graham, 1 Russ, C. C. 331. tained without John's accounting with the other younger children for the share he received of his father's residuary estate, and the advancements made to him as a younger child; for if those advancements exceeded his portion by settlement, the difference was either to be supplied to the other children out of his share of the residue, or the perfect equality designed by the father must have been disappointed. This case is therefore an exception only to the general rules before stated; and it was so considered by Lord Manners, Chancellor of Ireland, in Savage v. Carrol.(i) 6. When an Eldest or only child considered a Younger. Every child but the heir is looked upon as a younger child in a Court of Equity. On which principle it is, that an "eldest daughter," destitute of a provision, has been considered a younger child, to answer the general intention, although not literally falling within the description. Accordingly in Beale v. Beale,(k) A. being tenant for life of an estate, remainder to such woman as he should marry, remainder to his first and other sons in tail male, with remainder to B. his brother in fee, was empowered to charge the land with 20001. for the portions of younger children living at his death. A. married, and had issue two daughters, but no son, and the second daughter was in ventre sa mere at his death. He charged the estate by will with 20001. for those two children, payable at their ages of twenty-one. And it was objected, that the eldest daughter could not claim any part of the money, because she was not a younger child; and that the other had no title, as she was not born at her father's death. But Lord Harcourt, C. determined in favour of both of them, on the ground that the estate being the property of B. the remainder-man, the daughters were unprovided for, and in such a case the eldest daughter was to be considered in equity a younger child; and her sister being in ventre sa mere at her father's death was to be regarded as a child living at that period. So in Butler v. Duncombe,(1) Lord Parker, C. decided where the only issue of the marriage was a daughter, that she was entitled to a portion provided for younger children, as otherwise she would have been left destitute, the real estate descending in another channel. Lord Hardwicke made a similar decree in Heneage v. Hunloke,(m) a case attended with this particularity, that a settlement was made of freehold houses to uses, which, according to articles preceding the marriage, ought to have been trusts. By them, 1300l. were directed to be invested in South Sea annuities, in trust after the death of the surviving parent for the younger child or children. The only issue of the marriage were a son and daughter; and his Lordship observed, that the present case differed from preceding authorities in this particular, that the limitations were legal, and his recollection furnished him with no instance where a Court of Equity, under such a circumstance, adopted the construction of an eldest daughter or child being considered a younger. For the limitation being legal, must, as he conceived, receive the same construction in equity as in a court of law; and since at law, he doubted whether (i) 1 Ball & Beat, 279. (k) 1 P. Will. 244. () 1 P. Will, 449-451. (m) 2 Atk. 456. and see Pierson v. Garnet, 2 Bro. C. C. 38-47. S. P. an eldest child would be permitted to recover under a limitation to a younger; his opinion seems to have been, that had the question. rested upon the settlement alone, a Court of Equity could not have applied its rule, before mentioned, where the property was equitable, so as to give the houses to the eldest child under a limitation to a younger. But Lord Hardwicke surmounted this objection by referring to the articles, which were executory, and ought to be performed according to the intention of the parties, which was to provide for all the children, except an eldest son; a construction which entitled the daughter, though in seniority the eldest child, and his Lordship added, that the Court would rectify the mistake in preparation of the settlement. 7. The principle which entitles a daughter, who is the eldest child, to a portion provided for a younger, will enable an "eldest son" to claim a portion as a younger child, when the family estate is given from him, or he is otherwise unprovided for. Thus in Emery v. England,(n) John England bequeathed to his brother and sister, Joseph and Sarah, all his effects, if his sister Mary had no child at his death, or within a year afterwards; but if she had any, such child or children at either of those periods, he gave one-third of his property to the youngest. The other twothirds he gave to Joseph and Sarah equally, with benefit of survivorship, between them, if either died before him, unless Sarah had a child or children, in which event, her third was to belong to her youngest child, otherwise to her; and Joseph's third was to be divided between Sarah or her youngest child, and Mary's youngest child. John was the only child of Mary living at the testator's death. She had other children, but none of them were born within a year after the decease of the testator, and were therefore excluded. The question was, whether John, though the eldest child, could claim the third bequeathed to the youngest child of Mary. And Lord Rosslyn, without argument, decided in the affirmative. The last is a case in which the provision was made by a collateral relation, intending to provide for all the members of his family, and therefore to be considered as placing himself in loco parentis. Such also was the case next to be stated, and the Court alluded to the distinction to be attended to when the provisions are made by a stranger for younger children, and by parents or collateral relations, whose duty and intentions are to provide for the several branches of their families. The case alluded to is, Duke v. Doidge,(o) in which Richard Doidge the elder, and Richard his eldest son, created a term of 1500 years in an estate, to commence from their deaths without issue male, in trust, if Thomas (Richard the elder's brother) then had one or more children, to raise portions for them, not exceeding 1500l., as the surviving Richard should direct, and in default of appointment, to raise that sum for such children in equal shares, payable at the end of six months after the term began; but if no such younger children were living at the commencement of the term, &c. it was to be surrendered. The estate was limited upon (n) 3 Ves. 232. (0) 2 Ves. sen. 203, in a note. |