decease to her children who should attain twenty-one, and if she had no such children then over, and a direction by codicil that if A. should be living at the expiration of five years from the death of the testator's wife and should not then have any child or children, the gift over should at once take effect as if the daughter were dead, and the facts were that at the end of the five years A. was enceinte of a child, it was held that the rule applied and prevented the gift over from divesting the gift by will. Pearse v. Carrington (1873), 8 Ch. 969.

It was for some time considered that a child en ventre should be considered for all purposes to be born at the critical period when the question arises which of two interests he takes under a will; but it is now settled that, where it is not for the child's benefit to be considered to be born, it will not be so considered.

Example.—Devise to A.'s first and second sons (born at the date of the will) successively for life, with remainder to their first and other sons in tail, with remainder to A.'s third, fourth and other sons successively in tail; with a declaration that any third or other son "born in the testator's lifetime" should not take a larger interest than for life, with remainder to his issue in tail. A.'s third son was born three weeks after the testator's death, and owing to the death of the named first and second sons without issue he became entitled either as tenant in tail under the limitation or as tenant for life with remainder in tail under the proviso. Held, that the third son took an estate tail. It was obviously not to that child's interest, but to his detriment, to be considered as having been born at the testator's death, for in such case his estate tail (which he could bar, and turn into a fee simple) would be cut down to a mere estate for life. Villar v. Gilbey, supra, in which case the whole subject is

considered.

And in case a perpetuity can be thereby avoided, a child en ventre at the critical period will be treated as having been living at that period although the child himself is not benefited thereby; in fact, he can be

treated as a "life in being" within the rule as to perpetuities.

Example.-Devise of real estate upon trust to pay the income to M. during her life, and after her death to stand possessed of the corpus for the second and every successive son of M. born or to be born successively during his life, with remainder after the death of each such son upon trust for his first and other sons successively in tail.

It is obvious that an estate for life given to a son of M. unborn at the testator's death is good, but an estate in tail limited to that son's children is bad.

The only person capable of taking under the limitations in the will was a son of M., who was en ventre at the death of the testator. He could in no case take more than a life interest, for (contrary to the limitations in Villar v. Gilbey) the original gift was only a life interest, and not an estate tail liable to be cut down if he was born in the testator's lifetime; but the question was whether he could be considered to have been living at the testator's death so as to validate the estate tail given to his children which would otherwise have been void for perpetuity, and it was held that he could. In re Wilmer's Trusts, [1903] 2 Ch. 411.

It may be observed incidentally that the period laid down by the perpetuity rule may be extended at both ends by a period of gestation where it exists. Thellusson v. Woodford (1805), 11 Ves. 112; Villar v. Gilbey supra.

Example.-Devise upon trust for a child en ventre sa mère for life, and after his decease upon trust for such of his children as attain twenty-one. One such child is en ventre sa mère at the death of the tenant for life.

Another class of case may be mentioned, namely, executory gifts over, where the contingency of the gift over depends upon whether a child en ventre can be treated as born at a particular period. The peculiarity of this class of gift is that the child itself takes no

interest in the property, but the interest of some other person depends on its existence at a particular period.

Example.-Devise to A. absolutely "if she has issue living at the death of B., but if she has no issue then living," then to some other person. Held, that the birth of a child of which A. was enceinte at the death of B. gave A. an absolute interest. In re Burrows, [1895] 2 Ch. 497.

The case of Villar v. Gilbey, supra, by laying it down that a child en ventre is not to be considered to be "born" at a particular period unless it is for the benefit of that child, throws some doubt upon this class of case; for, although a child en ventre may be "living" within the meaning of a limitation, it cannot, according to that case, be considered to be born" unless it is for its own benefit. Therefore, in a devise to A. in fee, with a gift over if he should have no child born" before his decease, it seems that a child en ventre would not save the gift over from taking effect, the child, even if born, having no interest whatever in the property.

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CHAPTER XX.

ILLEGITIMACY.

"THE rule cannot be stated too broadly, that the description child,' 'son,' 'issue,' every word of that species, must be taken prima facie to mean legitimate child, son, or issue," as much so as if the word "legitimate" had been introduced before them. Wilkinson v. Adam (1813), 1 V. & B. 422, at p. 462; Dorin v. Dorin (1875), 7 H. L. 568.

A contrary intention may appear upon the face of the will itself when construed in the light of the surrounding circumstances, parol or extrinsic evidence of intention being, of course, inadmissible.

The question, then, becomes one of construction, and cannot be discussed generally, but the following divisions may be indicated:

(1) The main question is whether the will, read in the light of surrounding circumstances at the time of making it, is wholly consistent with an intention to provide for legitimate children only. If so, illegitimate children will be excluded.

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Example.-A. had two illegitimate children by B.; he then married her and, after marriage, made a will giving B. (in effect) a life interest in his property with a power of appointment among our children," and in default of appointment gave the property equally between "my children by her." No more children were born after the date of the will or marriage. Held, that the will was not inconsistent with the idea of providing for

future legitimate children and that the illegitimate children were not entitled. Dorin v. Dorin, ubi supra.

(2) But if there is an inconsistency, it may be that illegitimate children may be entitled. For instance, in the last example, if A. had not married B., but had left the same will, there would have been an inconsistency.

A few illustrations of inconsistencies may be given :—

(a) A gift to the children of A. (deceased) who had only illegitimate children.

(b) A gift in one part of the will to A., described as a son of B., where A. de facto is illegitimate, will, as a rule, justify his inclusion among the "children of B.” in a gift in another part of the will. In re Smilter, [1903] 1 Ch. 198.

(3) Even where it is clear that by "children" the testator means to include illegitimate children, it does not follow that they will be allowed to benefit.

In no case can illegitimate children, begotten after the testator's death, be included; the provision is to be limited to those who were in esse at the time the instrument takes effect, i.e., in the case of a deed, the date of its execution, and in the case of a will, the death of the testator. See In re Hastie's Trusts (1887), 35 C. D. 728.

The following further distinction is made :-If they are described as the children (i.e., illegitimate children) of A., a woman, or as the children "which A. may be reputed to have by B.," they can take, since they are sufficiently described as to be identified, in the one case as the children of a woman (and as to them there can be no doubt), and in the other by reputation, a fact which the Court allows to be proved.