Villar v Gilbey

JurisdictionEngland & Wales
Date1907
CourtHouse of Lords
[HOUSE OF LORDS.] VILLAR APPELLANT; AND SIR WALTER GILBEY, BARONET RESPONDENT. 1907 March 19. LORD LOREBURN L.C., LORD MACNAGHTEN, LORD JAMES OF HEREFORD, LORD ROBERTSON, and LORD ATKINSON.

Will - Construction - “Born in my Lifetime” - Divesting Clause - Child en Ventre sa Mère.

There is no fixed rule of construction which compels a Court to hold that a child was born in the lifetime of a testator because it was at that time en ventre sa mère. That peculiar rule of construction is limited to cases where that construction of the word “born” is necessary for the benefit of the unborn child, as decided by Lord Westbury L.C. in Blasson v. Blasson, (1864) 2 D. J. & S. 665.

A testator by his will devised real estate in strict settlement to his brother's first and second sons (who were alive at the date of the will) successively for life, with remainder to their first and other sons in tail, with remainder to his brother's third, fourth, and other sons successively in tail, but declared his intention to be that any third or other son born in the testator's lifetime should not take a larger interest than for life only, with remainder to his issue in tail male. The brother's third son was born three weeks after the testator's death. The first and second sons died without issue:—

Held, that the third son took an estate tail, not having been born in the testator's lifetime.

The decision of the Court of Appeal, [1906] 1 Ch. 583, reversed, and the decision of Swinfen Eady J., [1905] 2 Ch. 301, restored.

THE material facts and provisions of the will are fully set forth in the reports of the decisions below and concisely in the judgment of Lord Loreburn L.C. in this House.

March, 5, 6, 7. Younger, K.C., and Draper, for the appellant. There is no reason why the words of the will should be construed otherwise than in their plain grammatical meaning. There is no principle of construction by which the words “born in my lifetime” should include posthumous children. The Court of Appeal have introduced questions of public policy and of law, particularly the law against perpetuities, into a matter of mere construction. There is no rigid rule on the subject except the rule in Shelley's Case. It is necessary to distinguish between cases of construction proper and cases in which a principle of law is involved. The exact words are important — “born in my lifetime.” The testator might have added “or in due time afterwards.” There are only two cases in the books where a child en ventre sa mère has been held to come under the word “born.” The first is Trower v. ButtsF1 and the other Blasson v. Blasson.F2 The ratio decidendi in both cases was the benefit of the child, and neither has any application when the extended view would be detrimental to the child. In Blasson. v. BlassonF2, where Lord Westbury L.C. varied the decision of Kindersley L.-C., he said “that the child en ventre sa mére is only to be treated as a born child where such a construction is necessary for the benefit of the child.” In Long v. BlackallF3 (a bequest of leaseholds) the literal meaning was adopted and the posthumous child excluded. In Thellusson v. WoodfordF4 the words “born in due time afterwards” were added, and in the House of Lords Lord Chancellor Eldon saidF5: “The rule of law has been properly laid down that the time of gestation may be taken both at the beginning and the end.” There are no such words here. In Doe v. LancashireF6 the question was one not of construction, but of the revocation of a will by the birth of a child; and Grose J. saysF7: “I know of no argument founded on law or natural justice in favour of the child who is born during the father's lifetime which does not equally extend to a posthumous child.” Blackburn v. StablesF8 was a case of an executory trust in tail for an only son of A., and Grant M.R. said the words must be taken in their legal acceptation, and the gift was not void for uncertainty or too remote for a child en ventre at the father's death to take. In In re Wilmer's TrustsF9 the question was one of perpetuity, not construction.

The “benevolent” construction was adopted in Millar v. TurnerF10, where the gift was to such children as should be living at the time of the father's death, and a posthumous child was included. So Clarke v. BlakeF11, affirmed sub nom. Doe v. ClarkeF12, where it was held that a child en ventre is considered as born “for all purposes which are for his benefit.” So Gibson v. GibsonF13; Burdet v. HopegoodF14; Rawlins v. RawlinsF15; Whitelock v. HeddonF16, which is cited in Trower v. ButtsF17, where potential existence was held to be within the reason of the gift. There the words were “begotten and born,” and “begotten” was treated as equivalent to “born.” On the same principle was Musgrave v. ParryF18, where it was held that a child en ventre may be vouched to a recovery, and that a gift “hæredibus de corpore procreatis” includes a gift “de corpore procreandis.” The principle of benefit to the unborn child was also applied by Lord Hardwicke in Wallis v. HodsonF19, where the maxim of the civil law is applied, “posthumus pro nato habetur.” In Thellusson v. WoodfordF20 Arden M.R. said that a simple and natural con. struction ought, if possible, to be adopted. In Blasson v. BlassonF21 Lord Westbury quoted, “Qui in utero est, perinde ac si in rebus humanis esset custoditur quoties de commodis ipsius partus quæritur.” The latter words are significant. On the other hand, in Northey v. StrangeF22 a devise to children and grand. children was held not to include a posthumous grandchild. The like exclusion was enforced in Storrs v. BenbowF23, where the words were “to each child that may be born.” In In re BurrowsF24 the gift was “in case she has no issue then living,” then over. The posthumous child was held entitled. This was also a case of benefit. So Pearce v. Carrington.F25 The modern text-books and precedents are in favour of the appellant. In Davidson's Precedents (1880), 3rd ed. vol. 4, p. 391, a proviso excluding children “en ventre sa mére” is described as “probably superfluous.”

Warmington, K.C., and Micklem, K.C. (Wace with them), for the respondent. The will is a strict settlement of family estates, and discloses a desire to tie up the property for as long a period as possible. No distinction, either in principle or by authority, exists between “born in my lifetime” and “living at my death.” It is a rule both of law and construction, in the absence of clear contrary intention, that a child en ventre sa mère, if subsequently born alive, is to be deemed retrospectively to have been born at the specified date, though, of course, no child can take until born. This has been a principle of English law, as it was of the civil law, from the earliest times. Such a child received the protection of guardians, an injunction against waste could be granted on his behalf, and he was regarded as heir; though the qualified heir received the rents during the interval between the ancestor's death and the birth of the child. This has always been the opinion of the profession and of the text writers: Powell on Devises, which was the foundation of Jarman on Wills, vol. 2, p. 325 (ed. of 1827). The rule is stated in Wallis v. HodsonF26, without qualification, “posthumus pro nato habetur.” Lord Hardwicke there treats the question as one of the intention of the donor. The question of benefit to the donee is irrelevant, and introduces doubt and ex post facto considerations. The circumstances vary, but the rule is the same. In Thellusson v. WoodfordF27 Buller J. expressly said — see p. 327 — that the rule was not confined to cases of benefit, but prevailed “to all intents and purposes.” Eyre C.J. in Doe v. ClarkeF28 cites Lord Loughborough to the same effect. Reeve v. LongF29, cited in Thellusson v. WoodfordF27 in the House of Lords, states the principle as of universal application, as it is also stated in Doe v. LancashireF30 and Doe v. Clarke.F28 In Trower v. ButtsF31, which has uniformly been accepted for more than seventy years, the rule is stated as invariable. No argument can be founded on slight variations of expression; “born in my lifetime” is synonymous with “living at my death.” It is certainly singular that between Burnet v. HopegoodF32 in 1718 and Blasson v. BlassonF33 in 1864 there should be no authority based on the benefit to the child: see Chitty J.'s judgment in In re Burrows.F34 The avoidance of divesting is a general principle not confined to questions of posthumous children. In Pearce v. CarringtonF35 the benefit of the child was not the ground of decision.

The invariable assumption of conveyancers has been that “child” includes a child en ventre sa mère: see Sugden on Powers (ed. 1861), pp. 652–3; Notes to Wms. Saunders (ed. 1845), p. 387, citing Reeve v. Long; Watkins on Descent, 3rd ed., p. 214; Jarman on Wills, 4th ed., vol. 2, pp. 185, 186.

Younger, K.C., in reply. In most of the authorities the word used has been “living,” and an unborn child has been held to be living. In In re BurrowsF34 the word was “living.” In Blasson v. BlassonF33 Lord Westbury said it was a strain on the conscience of the Court of Chancery to include posthumous children. All the cases between 1718 and 1863 were “living,” and not “born.” The note referred to in Williams' Saunders dealt with perpetuities, and not construction. Davidson in the edition of 1861...

To continue reading

Request your trial
46 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT