Hall, 32 Mass. 255 (Mass.)

Shaw C. J.

delivered the opinion of the Court. The single question is, whether Charles L. Hancock, for whose benefit this suit on a probate bond is brought, is entitled to s share with his four brothers, in a bequest of his grandfather, James Scott. The bequest- was to certain grandchildren, Ci that is to say, to such of them as may be living at my decease, in equal portions, be their number more or less.” The claimant being born within nine months after the death of the testator, the question is, whether he was then living, within the meaning of the law, so as to be entitled to a share.

In the first place, we think the jury were rightly instructed, that a child is to be considered in esse at a period commencing nine months previously to its birth, and where there is not evidence to rebut the presumption, it is conclusive. We are also of opinion, that the distinction between a woman being pregnant, and being quick with child, is applicable mainly if not exclusively to criminal cases ; and that it does not apply to cases of descents, devises and other gifts ; and that, generally, a child will be considered in being, from con

ception to the time of its birth, in all cases where it will be for the benefit of such child to be so considered.

In a recent case it was held, that where a gift was to children born &c., a child en ventre sa mere should take a share. Among other considerations it was suggested^ that a child en ventre sa mere, even in the early stages of pregnancy, should be deemed living, because the potential existence of such child places it within the reason and motive of the gift. And the maxim of the civil law was cited, posthumus pro nato habetur. Trower v. Butts, 1 Sim. & Stu. 181. Whether the Court would feel justified in going to this extent, when the gift is to children born &c., it is not now necessary to decide ; but the Court are of opinion, that a child en ventre sa mere is to be considered a child living, so as to take a beneficial interest in a bequest, where the description is “ children living.”

A child en ventre sa mere is taken to be a person in being, for many purposes. He may take by descent; by devise, Long v. Blackall, 7 T. R. 100 ; or under the statute of distributions, Wallis v. Hodson, 2 Atk. 117; Thellusson v. Woodford, 4 Ves. 322 ; Doe v. Lancashire, 5 T. R. 49 and generally for all purposes where it is for his benefit.

Lord Hardwicke says, in Wallis v. Hodson, the principal reason I go upon is, that a child en ventre sa mere is a person in rerum natura, so that, both by the rules of the civil and common law, he is to all intents and purposes a child, as much as if born in the father’s lifetime. And Buller J., in delivering his opinion, in Thellusson v. Woodford, 4 Ves. 324, after citing various cases, says, the effect is, that there is no difference between a child actually born and a child en ventre sa mere.

The case of Doe v. Clarke, 2 H. Bl. 399, is directly in point. The devise was by the testator to his brother for life, and from his decease, to all and every such child or children as should be living at the time of his decease. The brother died in October 1782, and the plaintiff was born in May 1783, and it was held that she was entitled to a share as a child living. And it was stated as a fixed principle, that wherever such consideration would be for his benefit, a child en ventre sa mere shall he considered as absolutely born.

■ The Court are all of opinion, that Charles L. Hancock, for whose benefit the suit was brought, was entitled to a share, and that the plaintiff is entitled to judgment.