Tbe question involved on tbis appeal is whether or not H. D. Mackie, tbe son of John W. Mackie, Jr., who was born 9 June, 1898, was in being within tbe meaning of G.S. 39-6, when tbe deed of revocation was executed on 15 January, 1898.
Tbe above statute, upon which tbe appellants rely, reads in part as follows: “Tbe grantor in any voluntary conveyance in which some future interest in real estate is conveyed or limited to a person not in esse may, at any time before be comes into being, revoke by deed such interest so conveyed or limited. Tbis deed of revocation shall be registered as other deeds; and tbe grantor of like interest for a valuable consideration may, with tbe joinder of tbe person from whom tbe consideration moved, revoke said interest in like manner.”
When a child is in being and capable of taking by deed or other writing, has been fixed by statute in tbis jurisdiction. G.S. 41-5 provides : “An infant unborn, but in esse, shall be deemed a person capable of taking by deed or other writing any estate whatever in tbe same manner as if be were born.”
Under our decisions and applicable statutes, a conveyance made directly to tbe children of a living person conveys tbe title only to those who are alive at tbe time of tbe execution of tbe deed, including a child then en ventre so, mere. But where a life estate is given to tbe parent and there is a limitation over to tbe children, all tbe children who are alive, including a child in being but unborn, at tbe termination of tbe life estate, take thereunder. Powell v. Powell, 168 N.C. 561, 84 S.E. 860; Roe v. Journegan, 175 N.C. 261, 95 S.E. 495; Cole v. Thornton, 180 N.C. 90, 104 S.E. 74; Johnson v. Lee, 187 N.C. 753, 122 S.E. 839; Jefferson v. Jefferson, 219 N.C. 333, 13 S.E. 2d 745; Beam v. Gilkey, 225 N.C. 520, 35 S.E. 2d 641; Pinkham v. Mercer, 227 N.C. 72, 40 S.E. 2d 690.
It seems clear to us that G.S. 41-5 gives to an unborn infant tbe same capacity to take property by “deed or other writing,” as such infant has under tbe law governing its right to take by inheritance or devise. “Biologically speaking, tbe life of a human being begins at tbe moment of conception in tbe mother’s womb, and in tbe law of inheritance tbis view is adopted, so that if one dies intestate, bis unborn child, if eventually born alive, and not too soon after conception to be capable of living, inherits equally with its older brothers and sisters; and by analogy to tbis *155rule, a devise or bequest to children or grandchildren includes a posthumous child or grandchild en ventre sa mere at the time of the testator’s death. A child en ventre sa mere is also included in the phrase 'persons living at the death’ of any person. By a legal fiction or indulgence, a legal personality is imputed to an unborn child as a rule of property for all purposes beneficial to the infant after his birth, but not for purposes working to his detriment. The interest taken by the child at birth dates back to the time of conception or to the later originating of the title, and cannot he defeated by intermediate proceedings to which he was not a party.” 27 Amer. Jur. 747. Ordinarily a different rule or definition is applied as to when life begins, in tort actions and in criminal statutes. 27 Am. Jur. 748; S. v. Forte, 222 N.C. 537, 23 S.E. 2d 842.
Applying the law to the facts in this case, it is presumed that the child of John W. Mackie, Jr., who was born on 9 June, 1898, was conceived 280 days, or ten lunar months, prior to the date of his birth, in the absence of evidence to the contrary, and was therefore in being at the time the purported deed of revocation was executed on 15 January, 1898. S. v. Forte, supra; S. v. Bryant, 228 N.C. 641, 46 S.E. 2d 847; 16. Amer. Jur. 852. The grantor in the original deed to John W. Mackie, Jr., was divested of the power to revoke the remainder which he had theretofore conveyed to the children of the grantee, the moment a child of the grantee came into being. Such remainder vested in the child, though unborn, subject to the rights of other children of the grantee who might be born thereafter. Powell v. Powell, supra; Johnson v. Lee, supra.
We think his Honor correctly interpreted the law applicable to the facts as stipulated, and the judgment entered in accord therewith is