Metham v Duke of Devon
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1718 |
| Date | 01 January 1718 |
| Court | High Court of Chancery |
English Reports Citation: 24 E.R. 502
LORD CHANCELLOR PARKER.
Discussed, Occelston v. Fullalove, 1874, L. R. 9 Ch. 158. Referred to In re Hastie's Trusts, 1887, 35 Ch. D. 735.
Case 152.-metham versus duke of devon. [Discussed, Occleston v. Fullalove, 1874, L. R. 9 Ch. 158. Referred to, In re Hastie's Trusts, 1887, 35 Ch. D. 735.] ! Lord Chancellor Parker. 2 Eq. Ca. Ab. 291, pi. 13 ; 331, pi. 5. One devises £3000 to all the natural children of his son by Jane Stile, the bastards born after making the will shall not take; nay the child in ventre sa mire shall not take.(l)-ò And though in the principal case the money was to be paid by the executors, as the testator by deed should appoint; and the testator afterwards made the deed of appointment ; the deed of appointment referring to the will was held as part of the will.(2) The late Earl of Devonshire devised three thousand pounds to all the natural children of his son the late Duke of Devonshire by Mrs. Heneage ; and the question was, whether the natural children by Mrs. Heneage born after the will should take a share of the three thousand pounds 1 Lord Chancellor. They shall not; the Earl of Devonshire could never intend that his son should go on in this course, that would be to encourage it; whereas it was enough to pardon what was passed; besides bastards cannot take (1 Inst. 3 b) until they have gained a name by reputation, for which reason, though I give to the issue of J. S., legitimate or illegitimate, yet a bastard shall not take. [530] But then it was said, the directions of the will were, for the executors to pay this £3000 as the Earl the testator should by deed appoint, and the Earl afterwards by deed appointed the £3000 to all the children of his son (the duke) by Mrs. Heneage, so that this now depended upon the deed, and therefore must refer to the children born at the time of the execution thereof. Tamen per Cur': The deed (3) referring to the will is as to this purpose, to be taken as part thereof. Also it being a question, whether a natural child in ventre sa mere, of the Duke of Devonshire by Mrs. Heneage should take ? Lord Parker inclined that such child could not take for the reason abovementioned, viz. for that a bastard could not take, until he had got a reputation of being such a one's child ; and that reputation could not be gained before the child was born. (1) A bequest to a future natural child is void, Arnold v. Preston, 18 Ves. 288. Wilkinson v...
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