
    Smart vs. King, et al.
    
    Chancery. Legacies — who takes. The residuary clause — “all the rest of my estate real and personal, to be equally divided between my grandchildren,” includes a posthumous grandchild, who was in ventre matris at the testor’s death. 1 Roper on Legacies, c 2, $ 3, subsection 3.
    On the 15th of June, 1835, Samuel Todd of Knox county, made and published his last will and testament, of which he made Eli King and Charles B. Hodges executors. After certain specific bequests, there was the following residuary clause — “All the rest of my estate real and personal to be equally divided amongst my grand children.”
    At the time of the testator’s death his daughter Martha Smart was pregnant, and five months and five days after-wards, was delivered of a son, Thomas B. Smart, the complainant. The testator had eight grand children born at the time of his death; and the executors being advised by counsel, that none of his grandchildren except those in existence at the time of his death could inherit his estate, proceeded to divide it among the eight in exclusion of the complainant.
    His father as his next friend on the 28th of March, 1836, filed this bill in his name, in the chancery court at Knoxville, against the executors and the other grand children, praying the court to put a construction upon the will for the guidance of the executors, and to determine the rights of the parties; to enjoin any further disposition of the property; that the partition already made be annulled, and another partition made, giving the complainant an equal share of the testator’s estate with the other grand children; for an account and general relief.
    The executors answered, the guardians of some of the grand children demurred, and the bill was taken for confessed as to the rest.
    
      The cause was heard on the 11th of October, 1837, by Chancellor Beamlitt, who, being of opinion that the complainant was not entitled to any relief in the premises, dismissed the bill; and the complainant appealed in error.
    George S. Yerger, for complainant
    said, 1 — By the old rule, in construing a devise to children generally, regard was had to the time of making the will, and children then alive were only considered capable of taking. Hence many of the old cases and dicta of the judges excluded a child born within nine months after the death of the testator, Fon-blq. 584; 1 P. ffm. 342; Prec. in Chancery, 470; 1 Ves. Sen. 114, note.
    But the court have long since settled, that a divise generally to a class as “children,” no period being fixed for the legacy to vest, vests and takes effect at the death of the testator. 2 Atkins, 122, note; 5 Binney, 607.
    From this rule it follows, that all who come within the description of children, and are in law capable of taking at that time, are let in, and of course children in ventre sa mere, because they are for all these purposes considered as being children, and capable of taking.
    The distinction taken in 1 P. W. 342, that a devise generally to children, applied only to such as were living at the time of the making of the will, and not at the death, has been overthrown by all the modern cases; for it is now settled, that the legacy vests, not in the children in existence at the making of the will, but those who were in existence at the death. 2 Atkins. 122, note, and cases cited; 2 Wms. on Executor, 717; 5 Binney, 707; Ward on Legacies, 123.
    It follows, therefore, that all living, or in existence at the death, must take. The question then, and the only question is, whether a child, in ventre sa mere, is considered as living, or in existence. If it is, the complainant is entitled. Fpnblq. 586, note; 2 Atkins, 117; 2 Ves. Jr. Clark vs. Blake, 673; 2 Hen. Blk. Rep. 399, Doe vs. Clarke; Lancaster vs. Lancaster, 5 T. Rep. 49; 1 Murphy’s Rep. 250; Swift vs. Duffield, 5 Ser. & Rawle, 38; Trower vs. Butt, 1 Sim. & St. 90; 1 Chitty’s Blackstone, 130, in note.
    
      June 21.
    2. But supposing the old rule to prevail, as in 1 P. Wms. §42, that it should only refer to such children as “were living at the making of the will,” still we must recover, for all the cases agree, that a divise to children “living” at the death of A, includes a child in ventra sa mere, because it is living, and in existence at that time, although not born. Now if the rule is, that in a devise to children, none shall take but such as were living at the date of the will, it follows, that if the child be in ventre sa mere at that time, it is a living child, and consequently takes. The case in 1 P. Wms. 342 decides this.
    R. J. McKinney, for the defendant
    said, the single question in this cause is, whether under a bequest to grand children a child in ventre at the death of the testator will be let in to take under the will? and in support of the negative cited 4 Bac. Abr. Legacy, 341; 2 Fonb. Eq. book 4. pt. 1, § 13, 14, and cases there cited.
    He said the construction is to be made as matters stood at the time of making the will. To that time reference is to be had in order to ascertain the objects of the testator’s bounty. “Where a sum of money is given generally,' to be equally divided among the children of A, those only who are living at the death of the testator shall take. The reason is, that it was the intention of the testator that the legacy should then vest, and that the legatees should then receive their money.” 2 Fonb. Eq. loc. cit. § 13, and note. It would be otherwise when it was the apparent intention that the legacies should not vest till a future time — all who were born before that time would be let in.
    That a child in ventre shall not be let in, he cited also 1 P. Will. Rep. 341, and cases cited in note 2; 2 Atkins, (Saunder’s Ed.) 122, where the cases are collected and classed; 2 Bro; C. Rep. 38; 1 Cox R. 248; Ambler’s Rep. 708.
   Turley, J.

delivered the opinion of the court.

Samuel Todd made and published his last will, in which is the following residuary devise. “All the rest of my estate real and personal, to be equally divided between my grand children.” The complainant is one of his grand children, who was not born at the time of the testator’s death, but was in ventre sa mere, and the question is, whether under these circumstances, he is entitled to his equal portion of the bequest of his grandfather?

Whatever may have been the earlier decisions on this point, it would seem that there is not at present any doubt that the complainant is entitled to the relief sought. In the case of Trower vs. Butts, reported in Simon & Stewart, 181, and in 1 Cond. Eng. Ch. Rep. 90, the vice-chancellor in commenting on this subject observes — “It is now fully settled that a child in ventre sa mere is within the intention of a gift to children living at the death of a testator; not because such child can strictly be considered as answering the description of a child living, but because the potential existence of such a child places it plainly within the reason and motives of the gift.”

It is said in note 2, to Heath vs. Heath, 2 Atkyns, 121, 122, “that the general rule in cases of ibis nature seems to be, that when the devise or gift to the children is general and not limited to a particular period, then it is confined to the death of the testator; and that under a devise to children living at the testator’s death, a child in ventre sa mere shall take;” and the editor cites Pr. Ch. 470; 2 Ves. 83; Ambler, 348; 1 Bro. Ch. Rep. 532; 2 Bro. Ch. Rep. 352; Pr. Cha. 50; 1 P. W, 345; 1 Ves. 85; 2 Bro. Ch. Rep. 320.

In the case of Swift vs. The Executors of Swift, 5 Ser. & Rawle, 38, the supreme court of Pennsylvania have determined, “that a posthumous grandchild, in ventre sa mere, at the time of making the will and death of the testator, is entitled to a grandchild’s share, under a devise and bequest to the testator’s grand children, the children of his deceased son Edward, of all the residue and remainder of bis estate, both real and personal;” and this is, as Judge Duncan in that case says, “according to the dictates of common sense “and humanity;” for a child “m ventre sa mere, for all purposes for his benefit, is considered as absolutely born; he takes by descent, and by distribution, is entitled to the benefit of a charge for securing portions for children, may be an executor, may have a guardian assigned, in executory devises is a life in being, and may be vouched in a common recovery.” The authority and reasoning of the cases referred to are satisfactory to this court.

The judgment of the court below will therefore be reversed and a decree rendered for the complainant in conformity with the prayer of his bill.  