Hill v. Moore, 5 N.C. 233, 1 Mur. 233 (1809)

July 1809 · Supreme Court of North Carolina

5 N.C. 233, 1 Mur. 233

Hill, administrator, &c. v. Moore and Watters, ex’r of Clarke.

j Fpom Wilmington ) District.

\ posthumous child, is entitled to a distributive share under the statute of distributions.

James Moore died intestate in the year 1783, leaving* a sister named Sarah, and two brother's named Alfred and Julius Caesar ,* he left his wife Elizabeth ensiént with a daughter', who was born several months after his death. She was named Mary Paris, and died in September, 1784, without brothers or sisters. Elizabeth, her mother', having obtained administration of her* estate, intermarried with William H. Hill, and died in the year 1788. Administration on her estate was granted to her surviving husband, William H. Hill.

After the death of James Moore in 1783, but before the birth of Mary Parrs, Julius Caesar Moore died.intestate and without issue, possessed of a large personal estate. Sarah, the sister of Julius and Alfred Moore, intermarried with General Thomas Clarke, who died in the. year 1791, having made a will and appointed Henry Watters executor' thereof.

In 1785, Alfred Moore and Thomas Clarke claiming one moiety of the share to which Mary Parris was entitled of her father James Moore’s estate, the said share was divided between Elizabeth her mother, the adminis-tratrix of her estate, and the said Alfred Moore and Thomas Clarke.

The estate of Julius Csesar Moore was taken possession of by Alfred Moore and Thomas Clarke, and one-sixth part thereof allotted to Elizabeth, administratrix of the estate of Mary Paris Moore.

This bill was brought by William H. Hill, as administrator of the estate of his deceased wife Elizabeth, against Alfred Moore, and also against Henry Watters, cxecu- (or of the last will of Thomas Clarke, deceased, praying, first, that the division of the estate of James Moore, deceased, which had been made in 1785, might be set aside, and the sljarc thej'eof delivered over to Alfred Moore and rpjIomas i3iariie? be decreed to be returned, &c. upon the ground, that upon the death of James Moore, one-third part of his personal estate belonged to his wife Elizabeth, and upon the birth of his daughter, Mary Paris, the other two-thirds belonged to her: that upon the death of Mary Paris, her two-thirds vested in her mother Elizabeth, so that Alfred Moore and Thomas Clarke had no right to any part thereof. Secondly, that an account might be taken of the estate of Julius Csesar Moore, deceased, and one-third part thereof be decreed to be paid to the Complainant, on the ground, that although Mary Paris was in ventre sa mere at the time of her uncle Julius’s death, she was entitled to a distributive share of his estate, which upon her death vested in her mother Elizabeth.

The Defendants demurred to so much of the bill as sought to have an account and division of the estate of Julius Moore, deceased, and answered to the other parts of the bill. The question arising upon the demurrer was, “ Whether, Mary Paris Moore, being an infant in ventre sa mere at the death of Julius Caesar Moore, she was entitled to a distributive share of bis estate.” This question was sent to this Court, and was argued by Alfred Moore, one of the Defendants, in support of the demurrer, and by Gaston against it.

Alfred Moore, in support of the demurrer.

The question for the determination of the Court upon the Defendant’s demurrer, is this: Can an infant in ventre sa mere, take under our statutes of distributions, equally with a brother and sister of the deceased, who were living at the time of the brother’s death, and capable of taking ? If it shall be the opinion of the Court, that such an infant can take, then the demurrer will be overruled •, but if, ou the contrary, the surviving’ brother and sister were entitled to take, exclusively, then the demurrer rnitst bo allowed, and the Defendant dismissed as to so much of the Plaintiff’s bill as has been demurred to.

It will be observed, that the. claim made under the infant in the present case, is by representation ; for it was neither a brother nor sister: — it was a niece.

The Complainant can have no right except under the law of North-Carolina; and the sole question will be, whether this unborn infant could, under the law of North-Carolina, be capable of taking’ its uncle’s estate, by rc-presenting its father? The act of 1778 informs us, that the Common Law, the statute laws of England in force and use in this country, and our own acts of Assembly, passed previous to the declaration of independence, and not inconsistent with our form of government, constitute the law of this State. The acts passed since 1778 are also a part of our law.

It will be observed, that in no act of the British Par-liamcnt in force in this State, or in any act of our own Legislature, is there a single word to be found about an infant in ventre sa mere: we must therefore turn to the Common Law, and see whether a claim under such an infant can be supported.

By the Common Law, an infant in ventre sa mere was not considered as in rerum natura — Plowden 366. It was, indeed, regarded in some cases to avoid wrong and inconvenience, as other fictions are intended ; as where one had given warranty, and died without other heir, tins infant shall be vouched — Hobart 338 — Co. Lit. 390, a. § 744. But in Co. Lit. 100, b. it will be seen, if his sister be forejudged, he is bound, because he had no right. Sucli infant was only regarded to avoid wrong and inconvenience in cases of descent, for where he was to take by purchase, as in the present case, he was not regarded at all— 1 Co. 95, a. — 3 Co. 61, b. — 1 Shep. Ab’t. 143— Dyer 303-4 — 2 Bl. Com. 169. This, therefore, is conclusive with respect to personal property which cannot descend — 2 Tern. 710 — 2 Brown, 47, 63. To kill such an infant, however maliciously, as by giving poisonous drugs to the mother for that express purpose, is not fe-J0ny — 3 institutes, 50. And why is it not felony ? Why truly for the reason first given, that it is not considered as in rerum natura ; for if it was so considered, it is undoubtedly murder by the same law. Further, if a man had made his will, and devised or bequeathed property, real or personal, with a plain intent, that the interest should vest at the time of his own death, an unborn infant was utterly incapable of taking, although it had been his own child — 3 Dyer, 303. There is no part of the English law more plain than this — there is not a dissenting voice among Judges or Lawyers respecting it, and this is grounded upon the reason first given, that such an infant is not in rerum natura ; for if the devise or bequest had been, that the infant should take when it should be born, then the devise or bequest is good, which may be fully seen in Fearne upon Devises.

It will be observed, therefore, that although it is not unlawful to make provision for such a child, when it shall come into life, a devise of .a present interest to such infant is absolutely void, because you cannot give to a nonentity. It should be further observed, that if a present interest given to such infant, is good at one period, it is good at another. In the early growth of a foetus, it is believed not to have life $ some mouths pass away, before it is supposed to be alive: in this nnanimated state, it would surely be absurd to suppose it could take any thing. Let us therefore suppose, that property is given to it at an after period to this first stage, say four months before its birth, and that the child is born dead, can it then be said that this gift vested any thing in the infant ? For if it did, let us look at the consequences. Should this infant, at this period of four months before its birth, have in existence a brother or sister capable of taking, but immediately before the birth, such brother or sister should die, and then the infant in ventre should be born dead ; will any man pretend that the property thus given to this unborn infant, vested in the brother or sister, so that their representatives arc capable of taking ? To shew the absurdity of this, let us further suppose that the child * 11 had died in its mother’s womb several weeks before its birth : — who is to ascertain the precise moment when it did die, so that legal consequences should result from it? Suppose the child is never born at all, hut is taken from the mother piece by piece, as did actually happen to a woman in the neighbourhood of Wilmington, where the flesh dissolved of itself and passed away, and the bones worked through the belly of the mother, .bid it over enter into the head of any man, that administration could be granted upon the goods of such an infant ? Yet there is no written law forbidding it; the whole arises from the principle first laid down, that it is considered as not in rerum natura. For if it was considered as in existence, so as to be capable of taking property, there is neither law nor reason, why the same consequences respecting property should not follow in this case, as well as any other. What impropriety could'there be in a brother or sister taking under such circumstances ? It Is therefore apparent, that-the Plaintiff has no claim under the Common Law', and there is no statute law of England in force in tiiis country, or act of. our own Legislature, that can aid him in this partícula!’.

We will next shew that a distributive share vests immediately upon tiie death of the intestate, as effectually as in the ease of a devise to take effect immediately upon the testator’s death — 1 Yern. 403 — 3 Mod. 58.

The only support which the Plaintiff has for his claim, is the dvil law; for although the counsel who argued the case, did not venture openly to put it upon that footing, yet they took a course which, if successful, would produce the same effect. They contended, that oilr act of distributions was a copy of the British act, and ought therefore to receive a construction conformably to the British act; and that it really was the intention of the Legislature to have it thus expounded.

It must be obvious to every one, that there is no exPress*on *n olu‘ ac^’ that either requires or can warrant such a construction. It will be remarked, that the English statute of distributions to which wTe refer, was passed in the 22d and 23d of Charles the 2d, and that by our act of 1778, no acts of the British Parliament which were not in force and use in this State at the time of our independence, are received as the law of North-Carolina. It has been pertinaciously adhered to by all our Judges, and the best informed Lawyers, that no act of the British Parliament, passed subsequent to the granting of our charter, which was in the 16th of Charles the 2d, was,in force in this State. Some acts of the British par-laiment, it is true, passed long after the granting of our charter, have been in use ; but this arose from the power of the British government over us, and not its right; and although these acts have been submitted to, they have always been complained of. It will be further observed, that these acts which have been submitted to from neebssity, and on account of the structure of the Courts, during the royal government, have always had a danse expressly enforcing them in the colonies ; which the British statutes of distributions certainly have not, and they have constantly been considered as neither in force nor use among us ; for if this was not the case, what occasion had our Legislature to pass a statute of distributions, which, as our adversaries contend, is in the very words of the British statute. From these circumstances, then, this must at least appear, that our adversaries contend for a construction of our act conformably to that upon a British act, which was never any part of our law.

But there has been introduced upon this occasion, adjudications of the English Judges upon their statutes of distributions; and as it is notorious, that the civil law lias always been rejected in England,^* 1 BI. Coni. 14, it may therefore be supposed, that when we find the Eng-lisli Judges deciding that an unborn infant is entitled to take, our Judges ought to decide in the same manner. Here we make this objection — Oiir Judges must decide all cases that come before them, according to the law of our own country. If, therefore, it should appear, that the adjudications of the English Judges are not sanctioned by the Common Law, the acts of Parliament in force in this State, and trio acts of our own Legislature, sack adjudications can by no means be regarded by our Judges; for if they should be governed by such adjudications op decrees of the English Judges, it can only be upon the. belief, that the opinions of English J udges are equal to acts of our Legislature. We can make it appear that the English Judges have decided rightly upon the authority of their oxen act; but when our adversaries assert, that our act is a copy of the British act, and should therefore receive the same construction, they are guilty of ,a great error. Our act of distributions does indeed copy the British act in every particular except the very one on which the British Judges were enabled to let in a posthumous child ; and on which all the hopes of the IPlaintiff are placed. For it will.be observed by the Court, that it is enacted in the third section of the act of 22 & 23 C. 2, that distribution shall be made of intestates* estates, according to his majesty’s ecclesiastical laws.— Now in our act of distributions, the 2d clause which is directly above, and the 5th clause which is directly below (for the 4th clause is only to save the customs of York and London') arc copied, but the 3d section is carefully left out.

All writers upon the Law will inform us* that in construing statutes^ we are to look at the mischief intended f(J be remedied^ and then at the remedy provided against the mischief. Let us, then, see what was the evil existing at the time of the passing of this act of 22d and 23d C. 2d, and sec the remedy provided against it, and how far our statute of distributions conforms to the British statute.

It is known to the Court, that the Ecclesiastical Courts of England, have, from the time of their erection to the present day, had in the first instance the management of the personal estates of all intestate persons. These Courts are governed by two codes of, laws — the one for the government of all clerical matters, called the Canon ; and the other for the distribution of justice in all cases respecting property which were cognizable in them— which is the Civil Law. The great abuse which the ecclesiastics made of their power, by taking the whole of the dead man’s estate to themselves in pios usus; or by dividing it between the widow and children, in an arbitrary, and frequently capricious and unjust manner, in violation even of their own rules of distribution, was for centuries, a source of complaint in England. The remedy for the evils complained of, progressed slowly— By Statute Westminster the 2, 13, Edw. 1, c. 19, the ordinary was compelled to pay the debts of the deceased as far as the goods would go. Statute 81, Edw. 3, c. 11, took the management of intestates’ estates out of the hands of the ordinary, and compelled him to grant administration to the next of kin to the deceased. It will here be proper to observe, that until this time, there was no/such thing as an administration in England — to the Common Law such a term was utterly unknown ; for by that law, upon the death of a man, any body might take possession of his personal estate, and whoever did so, had the sole management of it; and such person was styled executor. — 1 Neis. Abt. 143, 5th Repts. 82. It will easily be perceived therefore, how the Priests who were better served than .any other people, and had their emissaries all over the kingdom, came to be the sole managers of intestates’ estates. Statute 21, H. 8, allowed the ordinary to grant administration to the widow, next of kin, or both at option.

Wow, after the passing of these three statutes, all the relief gained, was that of compelling the ordinary to pay the debts of the deceased j for the residuum, after taking out the partes rationabiles, remained in their hands, or in those of the administrator they had appointed, from whom they always took bond, to distribute according to their directions. This residuum might as well consist of the whole as a part of the estate; for by the Common Law, which before the passing of the Statute of 22 & 23 C. 2, guided the course of distributions, if a man died intestate, one-third of his estate went to his widow, one-third to his children, and the remaining third to the King; if he died without a wife, then one-half went to his children, and the other to the King •, if without ■wife or child, then the whole went to the King, for a brother or other collateral could in no event take. — 2 Bl. Com. 491,. 492, 494. But at a very early period this branch of the royal prerogative, was granted by the King, to the prelates in pios usus for tiie benefit of the dead man’s soul. To remedy the hardships resulting from the course of distribution at Common Law, and the still greater hardships resulting from the grasping avidity of the clergy, the statute of 22 and 2 3 Charles 2, was passed; which after dividing the dead man’s estate between the widow and children, and letting in the brothers and sisters, and their representatives or next of kin, in default of children, enacts in the 3d section, “ to divide and settle, and to compel such administrator to observe and pay the same, by the course of his majesty’s ecclesiastical laws.” Here it appears that provision is made in this 3d section, for the case of an unborn infant; because by the ecclesiastical law, an unborn infant is considered in existence, and is equally entitled to take, with a child actually born ; which is directly contrary to the Common Law, as f,as (,een she\vn. Had it not been for this section, sucli unborn infant would have been left in England as it is here, to the operation of the Common Law. It will clearly .appear therefore, that when it is as-sprted, that our statute is a copy of the British statute, the assertion is incorrect, because the only part of the British statute, which cad authorise a Judge to "decide upon the Civil Law, in favour of an infant in ventre, has been left out in our act, and under remarkable circumstances, for we have copied from the British statute, directly above and directly below. The insertion of what is contained in the 3d section of the British act, into that act, is a plain proof that it was perceived by the British parliament, as it is perceived by us, that without that section, an unborn infant could not take; because if it could, there was no reason for introducing- the Ecclesiastical Law, which could only operate upon that single point, for in every other particular, the statute was in itself full, clear, and complete. However proper therefore it might appear to construe our statute of distributions, as the English Judges construe theirs, in those parts where they precisely agree, what reason can there be for saying, that we are to construe our statute upon a section of the British statute, which has been excluded from ours, and upon which alone the Plaintiff’s claimde-pends ? This exclusion has the very same effect with a direct negative ; it is equivalent to a dictate of our Legislature to us, that all the other parts of the British statute should be regarded, but this should not; for they have taken in the one and left out the other. If this conduct has been unwise, it is for the Legislature alone to alter it ‘, but the Defendant will venture to offer a conjecture, that whenever they come to legislate upon it, they will not adopt what is. now contended for, under the 3d section of the act of Charles 2d. It would be very easy to show, if it was necessary to trouble the Court .with an ana.ogy to other acts of Assembly, that the Legislature has always hadf a leaning to that branch of the family from whom the propei ty was acquired, which is our case, for the Defendant retains nothing but his father’s property, in opposition to a man who is a stranger in blood, and claims under a woman who was also a stranger in blood to his father.

Among the cases which have been introduced by the Plaintiff’s counsel, there is bat one, the case of Wallis and Hodson, 2 Mk. 115, which can be said to bear upon the present question, and this merely because it was a question respecting a collateral. The Defendant, therefore, passing the other cases by, will proceed to examine this, as it is the one most relied upon j and from this ho will plainly make it appear the Plaintiff receives no support.

The principal reasons which governed Lord Hard-wicke in the case of Wallis and Hodson, as he himself declares, were, that the Plaintiff was in rervm natura, and that by the rules of the Common and Civil Law she was as much a child, as if born in the father’s life time: and to shew that she would so have been considered at Common Law, he cites the case of an infant in ventre being vouched in a common recovery. But it will here be observed, that this argument is forced, because such infant cannot be vouched alone, the heir at law in being must be joined with him — Co. Lit. 39.0, a. § 744. It is a mere fiction to avoid wrong and inconvenience — Hobart, 338, and is restricted entirely to cases of descent — 1 Co, 95, a. — 1 Shep. M’t. 143. He further says,,that a devise to such infant is good by the opinions of Treby and Powell. It was said in argument by Powell, that “ a devise to an infant in ventre sa mere, by the better opinions, though various, is not good — vide 11II. 6 — 13 Bvo. Devi. 32 — 1' Mol. 609-10 — Dyer, 303-4, 342 — Mod. 127, 177, 634 — 2 Buis. 2.72, — 1 Bol. Repts. 110 — Lit. 255 bathe says he is of a different opinion in the case before him, because “ it is plain testator intended, a future devise.” lordship says further, that an injunction may be granted in its favour to stay waste, and cites 2 Vernon 710, Musgrave and Parry — yet there is no such injunction in that case, and the Chancellor there decided against the infant in ventre.

It is entirely manifest, therefore, that neither the Common Law, nor any statute in force in this country, had the least share in bearing Lord Harckwicke out in his decree. But the sanction for the decree of Lofd Hard-wiclce is found in the sd section of the act of Charles 2d, and there also is the sanction for the dictums or decrees of the Lord Keeper.North, and Lord Raymond; and the Defendant here defies the most laborious and best informed Lawyer, to produce a single case adjudged in a Common Law Court, prior to the passing of the act of 22d and 23d Charles 2d, where an infant in venire was held capable of taking a present interest. If the decree of Lord Hardwicke is not to be justified upon this section of the act of Charles 2d, then it is without any justification at all, and so would incontestibly appear, from the examination that has been given it. After the most attentive examination, then, of the case of Wallis and Hodson, this is the result. If Lord Hardwicke decided properly, it was in consequence of the 3d section of the act of Charles 2d, enforcing the ecclesiastical law; which is of no more force in this country than the Persian or Hindoo law — if his decree was not grounded upon this, then it was an illegal decree ; and certainly, therefore, in either case can have no force as a precedent.

Whether sound policy would justify the Court in deciding against the Defendant, supposing they had a right to exercise their opinions respecting policy, is worth some attention. ’ Upon the death of the father, the mother, it is said, is to take the whole, in case of the death of the child. Now, by the Common Law, the next heir to an infant could never be its guardian $ and why ?— " because he is interested to destroy his ward.” Is not a mother interested to do the like ? Suppose the case of a deformed and sickly wretch of a child, a large estate, the mother young and under strong temptations in the prospects of a second marriage — how easily may a sucking child be destroyed without detection; who is there to guard this infant by day and night, no brother or sister to share the property ? But the case is yet worse; suppose her married, and the husband more anxious to get the estate, than to preserve the life of the child — what then ?•—

It is confidently believed, that should the question of Law be in favour of the Defendant, it could not be otherwise than gratifying to the Judges to decide in his favor, from the peculiar complexion of the case. But other cases may arise, depending upon the same, principle of Law, under such circumstances of hardship, as could not fail to move the compassion of the Judges. But this neither can nor ought to have any weight upon their minds; hut if such feelings can become overruling ingredients in any case, the Defendant is surely entitled to the full benefit of them. From the earliest times, as far as we have any knowledge of the Common Law, until 10 and 11 Wm. 3d, such hardships did exist in England in all their rigour, with respect to an infant in ventre taking a contingent remainder, and doubtless must have often and severely exercised the feelings of the English Judges ; still the Law, hard as it might appear to be, was never attempted to be controlled by their feelings $ the Parliament alone was resorted to for relief.

In a question of such importance as the present, nothing that can by possibility operate upon the minds of the Judges, ought to be left un,examined. It may be said, that the question has been already settled by adjudged cases in our own Courts, which ought to govern the present case. It is not known to the Defendant, that any case like this has ever been adjudged : but if there had been hundreds of them, it is contended they have no authoritative power to bind the judges in this case. There is a plain difficulty arising from want of information respecting what has hem adjudged •, for as far as has been seen of the books of reports, it is well known to the Defendant that many of the cases reported, have been entirely misconceived, being cases in which the Defendant was himself concerned when he was at the bar, or determined when he was upon the bench. If any adjudged case in this country, ought to have any validity as a precedent, it must be because it has been rightly adjudged; for if the contrary should prevail, it is not conceivable what sort of security there can be for property in this State; for there are abundant cases to be found, that are directly contrary upon the same question. What, then, would be our situation ; a Judge is at liberty to choose which side he pleases, and consequently to decide for or against a man, and has equal authority for it; in fact, there has never been a Court in this State, so constituted as that it might be said to be safe to take its adjudications for authority. Before the revolution, the Superior Courts were all Circuit Courts, and no man acquainted with the profession, will say, that any law question of importance can be satisfactorily and safely settled upon a circuit •, the reasons are too obvious to be insisted upon. Errors notorious have liben committed by the wisest Judges under such circumstances, and such have frequently been corrected ; but not in this State, because the cases were taken up and settled at the same Court, amidst a multitude of other business, and no writ of error or appeal, for a revisal of such question, was practicable. There were, indeed, a few instances upon demurrers, cases agreed, and the like; but these were also settled in khe midst of the same hurried scene. The same objection applies to the Courts established since the revolution, where three judges made the circuit. After a fourth Judge was added and the circuit divided, the inconsistencies increased, until the establishment of the Court of Conference, (trow :tlic Supreme Court, which, as could easily be shewn, is very different from a Court v . of errors and appeals,) before which our judiciary has never presented such an aspect as to make adjudications of any authority. Whether this last Court has or has not decided this question, is not known to the Defendant j but if it lias, it can only be in a few ca&es, and certainly without that view of the Case which it is here attempted to present. Besides, the Supreme Court is itself in too fluctuating a state to give such an important effect to its decisions; for it will be i*ecollected, that if the argument here offered is insufficient to entitle the Defendant to prevail, the Judges now to decide have no need to rest upon adjudged cases; they must decide against him because the Law is againt him. But if, upon the other hand, the argument is sufficient to shew his legal right to the property demanded of him, then what would follow ? — he must still lose that legal right, because there are adjudged cases that are evidently erroneous.

To conclude — if there is such a thing as natural justice, it is on the side of the Defendant in the present case, for he retains nothing but his father’s property, against a man who is an utter stranger in blood. What the law of North-Carolina is, has been clearly shewn— It has been plainly declared in the act of 1778 ; by that law, the Plaintiff in the present caso can have no claim. It has been shewn that the Civil Law is not a part of our law, and that the Plaintiff’s right is derived under that law. It has been shewn that the adjudications in England, so far as they are in support of the Plaintiff, are all bottomed upon the Civil Law: — that *the Judges in England have decided right, because they have been directed to decide as they have done by a clause in their act of distributions. Should the Judges in the present case decide as the English Judges have done, it must be wrong, because the section of the British act which made it lawful and proper in the English Judges to decide as they did, has been totally omitted in our statute — it is not in the competence of our Judges to 1 . supply the place of this section, because that would be to make law instead of expounding it. Until the Defendant, therefore, shall be better instructed by the fallacy of some important part of his argument being shewn, he must feel entire confidence that the Court will dismiss him as to so much of the Plaintiff’s bill as has been demurred to.

Gaston, contra.

The demurrer presents the question, whether a posthumous child can take a distributive share. The difficulty of this question is not commensurate with its importance, whtether we regard, 1st, The words of the statute of distributions; 2dly, The design of the Legislature $ or 3dly, The doctrine of the law on analogous subjects.

1st. The statute of distributions passed in the year 1715, ch. 48, provides, “ that the surplus (after provision for the widow,) shall be distributed by equal portions to and amongst the children of the intestate, and if there be no children, then tó be distributed equally to every of the next of kin, who are in equal degree, and to those who legally represent them.” On account of a verbal inaccuracy in the 6th section of this act, its provisions were re-enacted by the act of 1766, ch. S. Some alterations as to the widow’s share, were made in 1784 and 1787; but so far as respects the present controversy, the law of 1715, as explained by that of 1766, remains yet the same. Does Mary Paris Moore legally represent her father James ? This enquiry depends upon the proper construction of the word “ children,” used in the first part of the clause cited : this word, both in its legal and ordinary acceptation, embraces as well those born after, as before the intestate’s death , and thus it must be understood, unless there be conclusive reasons for restricting its signification. In the first place, it is said, that an infant in ventre sa mere, is not actually in rerum natura ; that it is a mere non-entity, and of course cannot then take. Upon this point, the counsel in support of the demurrer, has shewn much curious learning and speculation, which it is not necessary to examine minutely; because it is not contended that an.infant takes when in ventre sa mere, but that it shall take when it comes into being, and shall be regarded by the administrator in making distribution. To this, however, it is said, in the second place, that the right to distribution must accrue immediately upon the'intestates’ death, and 1 Vern. 403 — 3 Mod. 38, are cited to prove this position : hut these cases do not establish this position ; they prove merely the transmissible nature of a right of distribution. It does not follo\v from this circumstance, that a posthumous child cannot take a distributive share, any more than it fallows from the transmissible nature of a legacy, that it cannot be given to a child in ventre sa mere. Decisions will be quoted in a subsequent part of the argument, to prove the corx*ectness of this distinction?

2d. What was the design of the Legislature in passing the act of distributions ? To discover this design, let us observe the rules laid down in Heydon’s case — 3 Rep. 7. What was the mischief? That the administrator had all the estate; for the bonds taken by the ordinary in England to compel distribution, were illegal — 1 Lev. 233— 2 P. Wins. 441-447. What the remedy ? An equal distribution among those equalhj dear; an universal will, according to the principles of equity, and the feelings of nature. How much will this remedy be fettered — the principles of equity, and the feelings of nature outraged, by the Defendant’s construction. ? If the makers of the statute were asked, whether they meant to add to the miseries of the posthumous orphan, by forbidding him any part of his parents’ personal estate, what would be their answer ? The intention must be manifest, and ought to be regarded, even though it were not well expressed by the words: how much more when perfectly consistent with them.

gd. If we look into analagous decisons, we shall find that in all instances, both at Common Law and by Statute, (unless when it is repugnant to some inflexible and rigid principle) children in ventre sa mere, are considered, when they come into being, as having the same rights with those who had an actual existence. They may take by descent — Co. Litt. 55, 3d Wills. 516. They may take by devise — Fowell on Devises, 320 to 326. They may be executors or take a legacy — Godolphin 102. They will take benefit of a term to raise portions “for the children of Jl. living at his death.” Hale v. Hale— Free, in Ch. 50: Beale v. Beale-r-1 P. Wins. 246. They will take under a bond in favour of “ such children us Jl. shall have living at his death.” Gibson v. Gibson, 2 Freeman 233. They may have an injunction to stay waste — Free, in Ch. 50. They come, within the exceptions for the benefit of infants in the statute of limitations — 1 Flow. 366. They are, as to all beneficial purposes, considered as in rerum natura — 5 Term Rep. 49. 2 H. Black. 399. What possible reason can then be assigned why they should not be regarded in like manner under the act of distributions ? They are so regarded in England, from which our statute is really borrowed — 2 Freem. 230 — Ball v. Smith. This case was decided by Lord Somers, only twenty-eight years after the statute of distributions of that country was passed — 2 P. Wiiis. 446. Edwards v. Freeman : this case was decided by Lord Chief-Justice Raymond, in 1727 — 2 Mk. 115. Wallis v. Hudson, decided by Lord Chancellor Hard-wicke, in 1740 — 1 Ves. 156.

But it is said that these decisions are founded upon the Civil Law, by which the statute of 22d and 23d Charles 2d, directs the division to be made. .The statute contains nothing more as to directing distribution by the rules of Civil Law, than ours. It is true that the latter part of the 3d section 'is not found in our act, for we had no Ecclesiastical Courts. The Civil Law was probably intended to be regarded, because by that law, testamentary matters and the estates of intestates had generally been regulated; and because the main design of the act was to authorise the ordinary to take such bonds as were before taken without authority — 2 P. Wins. 447. Precisely the same reason applies to the construction of our act. The acts of 1723, ch. 10, and of 1762, ch. 5, sec. 23, dii’ect the mode of proceeding in conformity to that used in thé Eccesiastical Courts in England •, and the c^e of Dickenson and Spier decided in this Court, shew that this mode is to be pursued in all matters of a testamentary. nature.

* We are not to understand from this that no part of the civil law is in force in England; for although the body of the civil law has been always rejected, nevertheless parts of it have been adopted, vide 1 Bl. Com. 14. But for tins, the English Judges could not have construed their acts of distributions, so as to let in a posthumous child, as will be

By the Court.

We are of opinion, that a posthumous child is entitled under our statutes of distributions to a distributive share; ánd that Mary Paris Moore was entitled to a share of Julius Moore’s estate equally with the brothers and sisters of saicl Julius, who were living at the time of his death and capable of taking.