of Lord Hatherley in Howarth v. Mills, there may be some doubt upon this point. A gift to future illegitimate children is against public policy, it is said, because it encourages immoral connections and discourages marriage. It is, however, difficult to see how a gift by will which, till the death of the testator, is of no effect, whatever it may be morally, can legally be said to be a consideration or inducement to immorality. If a man were to make a settlement by deed upon himself for life, with remainder to such illegitimate children whom he might at the time of his death be reputed to have by a certain woman, as he should by will appoint, and in default of appointment over, with a general power of revocation, apparently no appointment as to after-born illegitimate children would be good, though the deed may not have been communicated to anyone: see Dover v. Alexander, 2 Ha. 275. And the distinction between such a deed and a gift to after-born illegitimate children by will is, no doubt, difficult to draw. But the distinction between cases on either side of a boundary line is necessarily subtle and technical. A deed speaks from its execution, a will is effectual only from the testator's death. A deed is a legal and formal document, requiring a formal execution of the power of revocation; a will is informal and can be revoked or modified in a manner equally informal. In the case of a deed, with a power of revocation, there is a prima facie presumption that it will not be revoked, as revocation would involve trouble and expense, which would not be incurred, or incurred in less. measure, in the case of a will. Under these circumstances the distinction, though practically evanescent, may very well be upheld as a matter of legal convenience. At any rate, if the distinction between such a deed as before mentioned and a will is refined, the distinction which would make a bequest to an illegitimate child the day Whether express re necessary. before it is conceived bad, and a similar bequest the day after it is conceived good, is on grounds of public policy equally refined. The inducement, if any, to immorality, when once the strictly legal conception of consideration is departed from, lies as much in the capacity of benefiting illegitimate children by will at all, as of benefiting future illegitimate children. The decision in Occleston v. Fullalove, while deciding ference to that future illegitimate children may take under a gift by repute is will, if sufficiently described, leaves some doubts on the question of what description will suffice. The gift there was "to all other children which the testator might have or be reputed to have by M. L., then born or thereafter to be born," and the Lords Justices laid stress upon the word reputed, as obviating any difficulty which might arise if it were necessary to inquire into the fact of paternity-an inquiry which the law will not undertake. "A man makes a gift to my future children by A. B. ;' there is a condition annexed to the gift that they shall be really his children; but that is a condition the existence. or non-existence of which it is impossible to ascertain. His access or non-access, the access or non-access of any other person or persons, the more or less profligacy or immorality of the female, the signs of race or caste, or blood, might have all to be inquired into and brought into public discussion before it could be ascertained whether or not they were his children. The law forbids such inquiries, and, except in exoneration of parish rates, accepts no evidence of actual paternity but the marriage union," per Lord Justice James, Occleston v. Fullalove, p. 163; and "the cases appear to establish that a bequest to the future illegitimate children of a man is void for uncertainty, because the law will not allow evidence to be given that they are the actual children of the man," per Lord Justice Mellish, ib. 170. These remarks seem to imply that where future illegitimate children of a particular father are referred to they can only take under a form of words descriptive of the reputation and not the fact of paternity. But the distinction appears to be unimportant, and in In re Goodwin's Trusts, 17 Eq. 345, where there was a bequest by a woman to "all and every her children and child by Richard Perkins," the M. R. held that an after-born child, who at the time of the testator's death had acquired the reputation of being her child by Richard Perkins, was entitled. This case, it may be noticed, also decides that words of Words of futurity futurity are not necessary to enable after-born illegitimate not neceschildren to take unless a distinction could be drawn between "her children" and "all and every her children.” sary. mate born after V. Illegitimate children born after the death of the Illegiti testator, unless en ventre at that time, can in no case take children under his will. Such a gift would, in fact, be the same as the testaa gift by deed upon an immoral condition. Crook v. Hill, 24 W. R. 876; 3 Ch. D. 773. tor's death. mate ventre at VI. With regard to an illegitimate child en ventre sa Illegitimère at the date of the will, such a child can take if it is child en sufficiently designated; thus, a bequest to the child with the date of which a woman is at the time pregnant is a good bequest, the will. as there can be no uncertainty. Evans v. Massey, 8 Pr. 22; Gordon v. Gordon, 1 Mer. 142. And where a gift to the children of a woman applies to illegitimate children, an illegitimate child en ventre at the date of the will is admitted to share. Hill v. Crook, 3 Ch. D. 773. acquire a title by But if a child is described with reference to its father Whether child en there seems to be considerable doubt whether the bequest ventre can is not void for uncertainty. To establish the fact of paternity would involve an inquiry which the law will not repute. allow, and it is doubtful whether an illegitimate child can acquire a title by repute till it is born. See Earle v. Wilson, 17 Ves. 528. Whether child en ventre at In Gordon v. Gordon (sup. cit.), Lord Eldon says: “A bastard cannot take as the issue of a particular person until it has acquired the reputation of being the child of that person, which cannot be before its birth." (See, too, Metham v. Duke of Devon, 1 P. Wms. 529; Blodwell v. Edwards, Cro. El. 509; see 1 Co. Litt. 3 b.) On the other hand, both Lord St. Leonards and Lord Romilly seem to have thought that an illegitimate child en ventre may have a name by reputation. "A child en ventre sa mère is a child in esse, and may have a name by reputation," per Lord St. Leonards in In re Connor, 2 J. & Lat. p. 460; and "It is undoubtedly true that a child en ventre sa mère may acquire a name by reputation although illegitimate," per Lord Romilly in Pratt v. Matthew, 22 B. 339. On practical grounds there seems to be no reason why an illegitimate child en ventre sa mère should not acquire a title by reputation, and looking at the tendency of the more recent decisions, ending with Occleston v. Fullalove, the probability seems to be that the Courts would adopt the opinion of Lords St. Leonards and Romilly. VII. Where there is a bequest to future illegitimate children, but without a specific description which could will take apply to a child en ventre at the testator's death: the death under a gift to gitimate children. If the gift is to the illegitimate children of a woman, a future ille child en ventre at the time of the testator's death will be admitted to take. When the so-called rule of public policy against bequests to illegitimate children born between the date of the will and the testator's death is rejected, there is no reason why illegitimate children en ventre should be treated by the law with less favour than legitimate. Hill v. Crook, 3 Ch. D. 773. Where the gift, however, is to future illegitimate children with a reference to the father, the same difficulty with regard to reputation arises as in the case previously mentioned. If, however, a bastard en ventre can acquire a title by repute, it seems it would take under the gift in question if the repute is acquired at the time of the testator's death, which appears to be the proper limit for fixing it. See per Lord Justice Mellish, L. R. 9 Ch. 171. B. LEGITIMATE CHILDREN. children 1. Children prima facie includes children by a first and The term second marriage. Barrington v. Tristram, 6 Ves. 345; includes Critchett v. Taynton, 1 R. & M. 541. children by a first And even where there was an express reference to a and second marriage. present or any future husband, children by a former husband were not excluded. Pasmore v. Huggins, 21 B. 103; Re Pickup's Will, 1 J. & H. 389. But there may be an intention to exclude the children of a first marriage. Stavers v. Barnard, 2 Y. & C. C. 539; Lovejoy v. Carter, 35 B. 149. do not 2. A gift to the children of a living person will not go to Children his grandchildren, though he may have only grandchildren include living at the date of the will and the testator's death. children. Moor v. Raisbeck, 12 Sim. 123. If, however, the gift is to the children of a person deceased, who had only grandchildren living at the time, the grandchildren will take, and they will take to the exclusion of great-grandchildren. Berry v. Berry, 3 Giff. 134; 9 W. R. 889; Fenn v. Death, 23 B. 73. But a gift to the children of a deceased person, who has only grandchildren living at the date of the will, will not go to the grandchildren if the will distinguishes between children and grandchildren. Loring v. Thomas, 3 Dr. & S. 497. And a gift to the children of several persons deceased will not include the grandchildren of one who had no grand |