as that of White v. Barber (7), established the point that there was no distinction between a child in ventre sa mere, and one actually born. He would add, he said, one to them from 1 Vez. 85, where in a

(7) 5 Burr. 2708, see Doe v. Clark, 2 H. Bl. 399. À child in ventre sa mere may take by devise. Com. dig. "Devise"(1). If one devises, in case he leaves no son at the time of his death, to J. S. and dies leaving his wife privement ensient with a son, this posthumous son is a son living at the testator's death, and J. S. is consequently not entitled. See Sir Rob. Burdett v. Hopegood, 1 P. Wms. 485 So a posthumous child takes under the statute of distributions, 2 P. Wms. 446. Wallis v. Hodson, 2 Atk. 117. Thus also if a power be created for charging lands for portions for younger children living at the father's death, a child in ventre sa mere is a child within the power. Beale v. Beale, 1 P. Wms. 244. It is said also that a posthumous child may be vouched, Co. Litt. 390. If the mother takes poison with intent to poison it, and the child is born alive, and afterwards dics of the poison, it is murder by the common law. 3 Inst. 50, 51. As to the intermediate profits, Lord Hardwicke, in the case of Bassett v. Bassett, 3 Atk. 203. held, that a posthumous son, claiming under a remainder in a settlement, was by construction of the 10 and 11 W. 3. c. 16. entitled to them: but in the same case he seems to have taken it for granted, that on a descent the mean profits belong to the intermediate possessor; for he directed that the profits of the estate descended should be accounted for by the uncle, only from the birth of the posthumous child. In Co. Litt. page 55, b, Lord Coke says, "If a man seised of lands in fee hath issue a daughter, and dieth, his wife be ing ensient with a son, the daughter soweth the ground, the son is born, yet the daughter shall have the corn, because her estate is lawful, and defeated by the act of God." From which it is to be inferred that Lord Coke did not consider the posthumous child as entitled to any mean profits upon a descent. And Lord C. J. De Grey, in 2 Wils, 526. on a question whether a posthumous son was actually seised, denies

of children in

ventre sa mere,

and posthumous children:

Both marriage

and the birth of

cur, and both

bond given on marriage to raise 2000 1. for such child or children of the marriage, as should be living at the death of the father or mother, a posthumous child was held intitled to take as coming within the description. Upon these reasons the court gave judgment for the revocation (S).

It seems, therefore, upon the above-mentioned a child must con- cases to be well settled that marriage, and the birth events must take of a child are by operation of law a revocation of a place after the will. preceding will. And it appears to be with equal certainty settled that both these circumstances must concur to produce such a consequence. In Ward v. Phillips, a will was found which gave every thing to the widow. A posthumous child being born, a suit was instituted in the Ecclesiastical Court to set aside the will; and the court having decreed against the will, that decree, on appeal to the delegates was reversed. Dr. Hay, in commenting upon the case observes, that on the side of the first decree it was objected by Dr. Calvert, that as marriage alone

that the posthumous son, in the case of descent, can be entitled to any profits received before his birth, and cites 9 H. 6, 25. as an authority in point. See Mr. Hargrave's note to Co. Litt. p. 11, b.

(8) The Court agreed in disclaiming any attention to the declarations of the husband, because letting in that kind of evidence would be in direct opposition to the statute of frauds, which was passed in order to prevent any thing depending either on the mistake or the perjury of witnesses.'

did not revoke a batchelor's will, but required the additional consideration of the birth of a child; the birth of a child or children was to be taken as the essential and operative circumstance, and ought to revoke a married man's will; and for this construction he relied on the case of Jackson v. Hurlock, before Lord Northington; but that case went no further than to recognize the rule, that marriage without issue did not revoke a will, which rule, said Dr. Hay, was before established by many cases; but it by no means followed from thence that the birth of children would affect a married man's will.

It was further objected, continued the learned Doctor, that in the Roman law, by which we proceed in this court, the birth of children operated as a revocation of a precedent will. This is rightly stated from the Roman law, and it is true that the Roman law in general guides our decrees; but it guides our decrees no further than where it stands uncontradicted by the English law. In the former, children are considered as having a property in the effects of the father, but in our law we know of no such thing, and therefore the effect of the birth of children must be very different (9).

In Shepherd v. Shepherd, the case was thus: Shepherd, the testator, after some small legacies to

(9) See Doctor Hay's judgment in Shepherd v. Shepherd, 5 T. R. 51, in note.

his collateral relations, made his wife his residuary legatee. After this will, his wife was brought to bed of a daughter in 1763, upon whose birth the testator added a codicil to his will, whereby he directed that the legacies should be paid, and that an annuity of 300l. should be secured upon the residuum, and paid to the daughter. The codicil and will were found together. In 1765 another daughter was born, and in 1768 a son, who was a posthumous child, the testator having died about six months before his birth. These two last children being unprovided for, a suit was commenced in Equity, to set aside the will, and to decree an intestacy. And the question on the case sent out of Chancery by Lord Camden, for the opinion of Sir George Hay, Judge of the Prerogative Court, was, whether the subsequent birth of children was a revocation of the will. That learned civilian, after stating it to be an incontrovertible position settled by an abundance of cases that marriage alone will not revoke, held that so the birth of children alone would not, unless under very special circumstances; and accordingly decreed the probate to the executor.

Upon the whole, therefore, it appears that the doctrine as expressly laid down in Lugg v. Lugg, before mentioned as the first of this class of cases, viz. that where the revocation depends upon the alteration in the testator's circumstances, it must be a total alteration, has prevailed through all the subsequent cases. And that total alteration is made to consist

in the combination of the two facts of marriage and the birth of a child or children.

But Dr. Hay, in the above-mentioned case seemed also to think that there might be such a total ignorunce in a testator of his real situation as might occasion some doubt; according to the case put by Cicero, in his de Oratore, and which has before been mentioned as applicable to our law on the same subject: Pater credens filium suum esse mortuum, alterum instituit hæredem, filio domo redeunte, hujus institutionis vis est nulla. But it has also been before observed that by the Roman law the children were considered as having a sort of inchoate property in the effects of the parent. Unless the testator shews by the context or expression of his will the existence of such a total mistake or ignorance, or professedly grounds his testamentary disposition upon facts which he can be shewn to have mistaken, it should seem very strong to say since the statute of frauds and perjuries, that any extrinsic evidence can be admitted to prove the intentions of the testator for the purpose of overthrowing his will (10). Where the

(10) The inquisitive reader will find the subject of the admissibility of extrinsic evidence to controul or explain written instruments treated of much at length in the introductory chapter to my book, on the statute of frauds. And particularly as to the relief against mistakes, io Part 4, of Chapter 1. to the authorities on which subject there cited may be added, 2 Freem. 173. 1 Sid. 328. Browning v.