LORD TOMLIN.— I have had the advantage of considering the opinion which has been prepared and is about to be read by my noble and learned friend, Lord Russell of Killowen. In the conclusion of that opinion and in the reasoning on which it is based, I concur in all respects. It is therefore unnecessary for me to do more than state shortly the main reasons why I think, as I do, that the Courts below have erred.
I may note here that the attention of the Courts below was not directed to the fact that Mrs Elliot was domiciled in Scotland, and that her will falls to be construed by Scots law. This oversight, however, raises no difficulty. Your Lordships' House, as the ultimate appellate tribunal both of England and of Scotland, does not require proof of the law of either country, whether the case under consideration be an English case in which a question of Scots law arises, or a case from Scotland in which a question of English law arises—see Cooper v. Cooper  P 99.
The first question raised by the will under consideration is one of construction. The critical words are found in the two phrases:
"In the event of such child of mine leaving any issue him or her surviving,"
and "in the event of such child of mine not leaving any issue him or her surviving."
I cannot think tha t, upon the true construction of these words, a posthumous child of a child of the testatrix is issue left by the parent him surviving. The expression "leaving any issue him or her surviving" is not in its ordinary and natural meaning appropriate to include a posthumous child, and there is nothing, in my opinion, in the context to justify extending the meaning. On the one hand, it is no answer to say that the testatrix intended to cover every contingency, because upon either construction every contingency is covered. Nor is it permissible to adapt the meaning to give effect to what it may be thought would have been the wish of the testatrix if her attention had been called to the possibility of that happening which in fact happened. On the other hand, the period of distribution is the date of the death of the parent of the posthumous child. The parent or the brothers of the parent are, according to the event, the donee or donees under the appointment. The posthumous child is not a donee nor even an object of the power. There is nothing in the language of the will to suggest or justify the holding up of the distribution to meet the contingency of the birth of a posthumous child, who, when born, will not be and cannot be a donee under the appointment.
It remains therefore to consider whether there can be applied to this case the doctrine based upon the maxim "fœtus in utero habetur pro jam nato ubi agitur de ejus commodo."
So far as the English law is concerned the doctrine in question was explained in your Lordships' House in Villar v. Gilbey . If the decision in Burns's Trustees v. Burns is to be accepted as good law, the doctrine is not recognised in Scotland. Having regard to the view which I take as to the limits of the doctrine, it is not necessary for the purposes of this case expressly to deal with the decision in Burns's Trustees v. Burns, but I desire to say that, as at present advised, it seems to me to be in conflict with the statements of writers of authority (e.g., see Lord M'Laren's work on Wills and Succession, (3rd ed. (1894), vol. i, p. 696), and to be unsupported by any earlier decision.
But assuming that the doctrine has effect in Scotland, and that in regard to it English law and Scots law are the same, I am of opinion that the doctrine cannot be applied in the present case. It is admitted that there is no example in the books of the doctrine, which is really an artificial rule of construction, being applied to the word "surviving," or to the phrase "leaving surviving"; but, assuming that in appropriate circumstances it is applicable, as I think it is, to this word or phrase, the question is, Are the circumstances appropriate here, or, in other words, is it, within the meaning of the rule, for the child's benefit to apply the rule? The child does not take, and could not take, any benefit directly under the gift. The Courts below have taken the view that it must be for the child's benefit, as a general proposition, that its parent's estate should be increased. The application of this artificial rule of construction cannot of course depend upon the way in which the parent in fact disposes of his estate, or upon his domicile at his death, or upon the accident of the law applicable to his estate at his death. I do not think the enrichment of the parent's estate is a benefit to the child within the meaning of the rule. In my opinion the rule contemplates a benefit taken by the child under the instrument as a result of the application of the rule. To give to the rule any other operation would be to make it a rule of great uncertainty and difficult of application.
The Courts below have based themselves upon a decision of Chitty, J., in In re Burrows, and a decision of Joyce, J., in In re Griffiths' Settlement. The former decision, given before Villar v. Gilbey came to your Lordships' House, in my opinion was wrong, and cannot stand with Villar v. Gilbey, while the decision of Joyce, J., was one construing a section of the Wills Act, and therefore not strictly in pari materia, although it must not be understood that, as at present advised, I accept it as correct.
The result is that, in my opinion, this appeal should succeed. For the reasons about to be indicated by my noble and learned friend Lord Russell of Killowen, the order to be made by your Lordships' House should be in the form which he has prepared, and I move your Lordships accordingly.
Before proceeding to consider the true construction of the clause in question, I would call attention to the fact that the will of Mrs Elliot is a Scottish will, the construction of which falls to be determined according to Scots law. This seems to have been overlooked in the Courts below; at all events the matter appears to have been there argued and treated throughout as one to be decided according to English law. I think, nevertheless, that it may be convenient to see how the matter stands under English law before considering how far, if at all, the position is altered under Scots law.
There are many cases decided by the Courts in England in which posthumous children have been held to be included in gifts to children born in a father's lifetime, or to children living at a father's death. The foundation of these decisions, however, as has now been clearly and definitely settled, is not that the natural or ordinary meaning of the words used is such that they include a posthumous child, but that an artificial meaning must be placed upon the words because "the potential existence of such a child places it plainly within the motive and reason of the gift." These words are the words used by Leach, V.-C., in Trower v. Butts, and subsequently approved, with a defined limitation, by Lord Westbury in Blasson v. Blasson . Both these authorities have, as will appear, been accepted as correct in your Lordships' House. There is not, so it happens, any authority precisely covering the event postulated by Mrs Elliot—namely, the death of a parent "leaving any issue him or her surviving." The word "surviving," however, which, in my view, according to its ordinary meaning requires that the person who is to survive shall be living both at and after a particular point of time, ought, as it seems to me, to be governed by the same considerations as those which have been applied to the word "living," where the event postulated has been that there should be a child living at a particular point of time, e.g., at its father's death.
To refer to all the relevant authorities, which are numerous, would be a useless task. The earlier years show decisions not altogether uniform. It will, I think, suffice if I mention only a few earlier in date to Trower v. Butts and Blasson v. Blasson . [His Lordship then examined the decisions in Millar v. Turner, Doe v. Clarke, and Thellusson v. Woodford, and continued]—
Trower v. Buttsis a case of great importance in view of the references to it in subsequent cases. The will of May Smith bequeathed a sum to trustees to invest and pay the dividends to Maria Heathcote for life, and after her death to hold the corpus in trust for all the children of Robert Trower "born" in the lifetime of the testatrix. She died in October 1821, at which time the wife of Robert Trower was enceinte. There were children of Robert Trower already in existence when the testatrix died. In February 1822 a son was born to Robert Trower. Leach, V.-C., held that that son was entitled to a share of the legacy; but the grounds of his decision need to be noted. He states the law as "fully settled" in regard to gifts to children living at the death of a testator—namely, that a child en ventre sa mÃ¨re is within such a gift not because such a child answers the description of a child living, "but because the potential existence of such a child places it plainly within the reason and motive of the gift." He then points out that the Courts in other cases have acted as on the footing that there was no difference between the expressions "born in the lifetime" and "living at the death," and holds that the rule of construction which places a child en ventre sa mÃ¨re within the intention of a gift to children living at the death of a testator, because plainly within the reason and motive of the gift, should equally apply and for the same reason so as to bring such a child within the intention of a gift to children born in the lifetime of a testator. In other words, the Vice-Chancellor held that, departing from the ordinary meaning of the words, a gift to children "born in the lifetime" of a testator and a gift to children "living at the death" of a testator stood upon the same footing in this regard, that a child en ventre sa mÃ¨reat the testator's death is within the gift, but only for the reason that such a child is plainly within the reason and motive of a gift to children described as above.
Lord Westbury considered the case of Trower v. Butts, when the case of Blasson v. Blasson came before him on appeal from Kindersley, V.C. A testatrix had bequeathed moneys to be invested and accumulated during a period, the termination of which was the attainment of twenty-one years by the youngest of the children of three named nephew and nieces "who shall have been born and living at the time of my decease," when she directed the fund to be equally divided among all such children of the three nephew and nieces "as shall then be living, share and share alike." She died on 8th January 1844. The nephew and nieces all had children then actually born, and the youngest of those attained twenty-one on 20th August 1863. One niece had a child born on 11th June 1844, and another subsequently. The other niece had a child born on 2nd August 1844, and six others subsequently. Kindersley, V.-C., had held (1) that the period of division was 2nd August 1865, when the youngest child en ventre sa mÃ¨re attained twenty-one, and (2) that all children whether born before or after the death of the testatrix who were living at the period of distribution were entitled. Lord Westbury affirmed the Vice-Chancellor on the second point, but held that the trust for accumulation ceased when the youngest of the children actually born and living at the death of the testatrix attained majority. He specially approved of the decision in Trower v. Butts as right and well warranted by previous decisions; but he points out that "the fiction or indulgence of the law which treats the unborn child as actually born applies only for the purpose of enabling the unborn child to take a benefit which, if born, it would be entitled to, and that it is limited to cases where de commodis ipsius partus quœritur." He describes the means by which an unborn child is included among children born or living as a "fictitious legal interpretation," and a "peculiar rule of construction," and limits the application thereof to cases where such construction is necessary for the benefit of the unborn child. In the case before him there was no such necessity, for the actual gift clearly included all children living at the period of distribution whether born or unborn at the death of the testatrix. [His Lordship then dealt with Pearce v. Carrington, as an instance of a case where the fictitious interpretation was applied to prevent the divesting of a gift to a class of which the posthumous child when born would be a member; and continued]—
Villar v. Gilbeyis the most recent decision in your Lordships' House and requires close attention. [His Lordship then examined that case, and pointed out that it was a case where the application of the fictitious interpretation would result in cutting down the posthumous child's interest from an estate in possession to an estate for life; that Swinfen Eady, J., refused to apply the interpretation because it was not in the child's interest to do so; but that the Court of Appeal reversed that decision, holding that Lord Westbury's limitation in Blasson v. Blasson was unsound, and that the interpretation was of universal application in the absence of any context indicating a contrary intention; and continued]—
Villar v. Gilbey, when it left the Court of Appeal, contained a clearly defined rule of construction applicable to wills which could, I think, easily have been applied to the present will, notwithstanding the different phraseology there employed. The posthumous child would be included in the words "issue him surviving, " which only mean children or remoter issue living at and after a particular date, and, accordingly, the event postulated by the will would have happened; Thomas could then well be said to have left issue him surviving. Your Lordships' House, however, declined, and, as I think, emphatically declined, to accept this view of the law. The Lord Chancellor said that the case depended upon whether or not such a rule of construction as the Court of Appeal had described had been established by the authorities. He points out that the construction, which includes a child en ventre sa mÃ¨re in the description of children "living at the father's death," is a straining of language, a fiction or indulgence on the ground that it is for the child's benefit, and that it is everywhere stated or assumed that no such construction will be applied unless it is for the benefit of the child. After citing Trower v. Butts and Blasson v. Blasson, and quoting Lord Westbury's limitation of the rule, he read the rule laid down by Cozens Hardy, L.J., and proceeded thus:
"It will be observed that this principle is laid down quite broadly and regardless of the circumstances whether the construction is for the benefit of the child or not. The Court of Appeal thought that this distinction had been overruled by authority. When I examine the cases … cited in support of this view, I cannot find that they support it. It seems to me that the sentence I have quoted from Lord Westbury, L.C., accurately states the rule and its limitation, and, with the utmost respect to the Court of Appeal, I cannot accept the rule without the limitation, because there is not authority for such a view. I agree … that it may be difficult at times to say when a particular construction is for the benefit of a child. But I am not on that account to extend to all cases a construction which has throughout been applied only to a particular class. Authority may compel us to do violence to the English language, and to say that in some cases a child is born weeks or months before it is brought forth. But, in my opinion, we ought not to say so, knowing that it is not the fact, unless we are constrained by authority. And we are not so constrained except where it is for the child's benefit."
Lord Macnaghten agreed with the Lord Chancellor's judgment, so too did Lord James of Hereford and Lord Robertson, the former adding that the judgment of Lord Westbury (i.e., in Blasson v. Blasson ) and the dicta which controlled that judgment ought to prevail in the case before the House. Lord Atkinson delivered a judgment in which he considered a large number of the earlier authorities, and in particular Trower v. Butts, Blasson v. Blasson, and Pearce v. Carrington, and held that the Court of Appeal was wrong in holding that the rule of construction was a general rule applicable irrespective of the question of securing a benefit to the child en ventre sa mÃ¨re.
The result of the decision in Villar v. Gilbey in your Lordships' House seems to me to be threefold: (1) The authority of Trower v. Butts and of Blasson v. Blasson is established beyond attack. As Moulton, L.J., said in the subsequent case of In re Salaman:
"In my view the House of Lords in Villar v. Gilbey authoritatively supported the decision of Lord Westbury in Blasson v. Blasson, and of Leach, V.-C., in Trower v. Butts ."
(2) Such words as "living" at a particular time or "born" at or during a particular time or period do not according to their ordinary or natural meaning include a child who is en ventre sa mÃ¨re at the particular time or during the particular period; and (3) they can only include such a child by a fictional construction, which, however, must not be resorted to except in circumstances to which I refer in my summary of what I conceive to be the law as settled by Villar v. Gilbey . Clauson, J., has decided this case primarily upon the ground that no legal fiction or indulgence is here necessary, because the words "issue surviving a parent A.B." are "not inapt" to cover the case of a child "in being" at the death of A.B.; and he adopts what he calls this "loose and secondary meaning" in construing Mrs Elliot's will. This is to include the posthumous child on the ground that it was in fact living at the crucial date, the very thing which the judgments in Trower v. Butts, Blasson v. Blasson, and Villar v. Gilbey, as I read them, prevent us, from doing. He fortifies himself in this procedure by a reference to a decision of Joyce, J., In re Griffiths' Settlement, in which reference is made to a case before Chitty, J., In re Burrows.
It is necessary to examine both these authorities. [His Lordship then proceeded to examine these authorities, and stated his reasons for disagreeing with the results there arrived at; and continued with regard to Clauson, J.'s judgment in the present case]—
In his judgment he next states that there is no authority for the proposition that such an expression as "child living" cannot be treated as including a child en ventre sa mÃ¨re unless such a child takes a benefit under the clause. This appears to me a crucial statement and an erroneous one. In my opinion, Villar v. Gilbey, approving as it does of Trower v. Butts and Blasson v. Blasson, is a binding decision on the point. Trower v. Butts, first, abolished the idea that as a matter of ordinary construction the words "born" or "living" could be applied to a child en ventre sa mÃ¨re, and, secondly, declared that it was fully settled, in regard to gifts to children "living" at the death of a testator, that a child en ventre sa mÃ¨re is included solely because the potential existence of such a child places it plainly within the reason and motive of the gift and, thirdly, applied the same exceptional construction to a gift to children "born" at the death of a testator. The only cases which (judging from his language) were present to the mind of the Vice-Chancellor as cases in which this exceptional construction was admissible, were cases of gifts to a class of children "living" or "born" at some specified point of time. This exceptional construction, described by Lord
Westbury in Blasson v. Blasson as a "fictional legal interpretation," is stated by him to be applied only for the purpose of enabling the unborn child to take a benefit to which if born it would be entitled. That can only mean entitled under the document to which the fictional legal interpretation is being applied. Finally, in Villar v. Gilbey, which established the authority of Trower v. Butts and Blasson v. Blasson, your Lordships' House laid it down that the fictional construction ought not to be applied unless the Court was constrained by authority. Clauson, J., has held that this construction can be applied, if its application secures a benefit to some other person, who in turn may or is likely to pass on some portion thereof to the unborn child when born. As I have pointed out, there is no authority in favour of this view; nor is it in accordance with the principle approved of in this House. It is impossible to say with any accuracy or certainty that any child of A. born or unborn is within the reason and motive of an absolute bequest to A. The property vests in A. on the death of the testator. True it is that A. may make provision for any or all of his children thereout; but on the other hand he may not. He may assign it away where he pleases in his lifetime, and bequeath it where he pleases by his will; or his debts may swallow it up. No one can tell what will happen; and it is, in my opinion, inadmissible to ascertain the meaning of words used in a document by construing them in the light of subsequent events. It is impossible in the present case to predicate, except by guesswork, that the children of Thomas were within the reason and motive of the appointment of Thomas.
In the Court of Appeal the Master of the Rolls accepts the view that the rule which admits of the fictional construction is based upon the child being within the reason and motive of the gift. He then asserts that the children of Thomas are within the reason and motive of this gift. Finally, he holds that In re Burrows decided that the fictional construction was applicable even if there was no gift to a child or children, but only some indirect benefit which might be derived from a gift made to its parent; and that Villar v. Gilbey in no way overruled that decision. In reliance on that decision he held that the appeal should fail.
Lawrence, L.J., agreed, relying, as I read his judgment, entirely on In re Burrows and In re Griffiths' Settlement, as cases which decided that the fictional construction would be applied in order to preserve a gift to the parent of the child. Romer, L.J., also agreed. After expressing a doubt whether the law, as settled by Villar v. Gilbey in relation to not treating a child en ventre sa mÃ¨re as "born" at a particular time unless it is to the interest of the child that he should be so treated, applied also to the construction of the word "living"—a doubt which seems to me ill-founded—he affirmed the decision of Clauson, J., on the ground that Chitty, J., had decided in In re Burrows that it was not necessary that the child should take a direct benefit under the instrument which was being considered.
I have already indicated my view that In re Burrows(founded on Lord Eldon's dictum in Thellusson v. Woodford ) and In re Griffiths' Settlement (founded on In re Burrows)are not authorities upon the question of indirect benefit as contrasted with direct benefit, and moreover that they cannot stand after Villar v. Gilbey . If I am right in this, the foundations of the judgments of the Court of Appeal disappear.
The Master of the Rolls thought that the Lord Chancellor in Villar v. Gilbey, when he said that it might be difficult at times to say when a particular construction was for the benefit of a child, indicated a view that an indirect benefit, not conferred upon the child by the instrument under consideration, was sufficient to justify the fictional construction. I cannot read that meaning into his words, which merely seem to say that the instrument which is being construed may be so worded as to raise a doubt whether a particular construction will in fact benefit the posthumous child. I see nothing in the language used to indicate a view that the benefit may spring from a source other than the instrument itself.
The law as settled by Villar v. Gilbey may (but subject to any special context in the document to be construed) be summed up thus: First, words referring to children or issue "born" before, or "living" at, or (as I think we must add) "surviving," a particular point of time or event, will not in their ordinary or natural meaning include a child en ventre sa mÃ¨re at the relevant date. Secondly, the ordinary or natural meaning of the words may be departed from, and a fictional construction applied to them so as to include therein a child en ventre sa mÃ¨re at the relevant date and subsequently born alive if, but only if, that fictional construction will secure to a child a benefit to which it would have been entitled if it had been actually born at the relevant date. Thirdly, the only reason and the only justification for applying such a fictional construction is that, where a person makes a gift to a class of children or issue described as "born" before or "living" at or "surviving" a particular point of time or event, a child en ventre sa mÃ¨re must necessarily be within the reason and motive of the gift. Fourthly, that being the only reason and the only justification for applying the fictional construction, it follows that, if the person who uses the words under consideration confers no gift on the children or issue described as above mentioned, but confers the gift on someone else, it is impossible (except in the light of subsequent events) to affirm either that the fictional construction will secure to the child en ventre sa mÃ¨re a benefit to which if born it would be entitled, or that the child en ventre sa mÃ¨re must necessarily be within the reason and motive of the gift made. In these circumstances the words used must bear their ordinary or natural meaning. This seems to me to be the inevitable result of the adoption and approval by your Lordships' House of Trower v. Butts and Blasson v. Blasson, of their acceptance of Lord Westbury's statement of the rule, and of its limitation —namely, "only for the purpose of enabling the unborn child to take a benefit which, if born, it would be entitled to," and of their refusal to do violence to language unless constrained by authority so to do.
According to the law of England as it now stands, this appeal must succeed.
In regard to Scots law, if the case of Burns's Trustees v. Burns was rightly decided, it would seem that, according to that law, the fictional construction is inadmissible, and that the word "born" must receive its ordinary or natural meaning. I have, however, had the advantage of reading the opinion of my noble and learned friend Lord Macmillan in the present case, and, agreeing with it as I do, it will be sufficient if I point out that, the Scots law being certainly not more favourable to the claims of a child en ventre sa mÃ¨re than the English law, this appeal must equally succeed under Scots law. [His Lordship then dealt with the form of the order to be made by the House.]
Fortunately this circumstance need not embarrass your Lordships in disposing of the case. No doubt in the Courts below the law of Scotland is a matter of fact and must be vouched there by evidence or admission. But in your Lordships' House the law of Scotland is a matter not of fact but of law, for this House is the commune forum of both England and Scotland, and your Lordships have judicial knowledge of the laws of both countries. As Lord Halsbury, L.C., said in Cooper v. Cooper :
"Your Lordships sitting here require no evidence, indeed can receive no evidence, of English or Scottish law."
Nor is it material that in the present case the Courts below had neither evidence nor argument on Scots law. In Cooper v. Cooper, which was an appeal from the Court of Session in Scotland, this House decided the case on a point of Irish law on which the Court of Session had no evidence and which was not argued there. I again quote from the same paragraph of Lord Halsbury's speech:
"If all the facts are before your Lordships for decision … then it is not only competent but incumbent upon this House to decide upon the true view of what legal rights these facts establish, although what was a question of fact in the Court of Session was not there mooted but is for the first time argued here before your Lordships."
I proceed, therefore, to consider as a question of Scots law the problem of interpretation which Mrs Elliot's will presents in the circumstances which have arisen. The problem is whether her son, Thomas William Henry Elliot, who died on 11th May 1932, can be said to have died "leaving any issue him surviving," in view of the fact that, while he had no children at the date of his death, his widow gave birth to a son on 12th June 1932. As it happens, and as will appear in the sequel, there is no difference of doctrine between the law of England and the law of Scotland in the matter of the interpretation to be placed on the critical words I have quoted where a posthumous child is concerned, although of course the English cases referred to by Clauson, J., and the Court of Appeal which did not reach this House are not of binding authority in Scotland.
The argument in favour of holding that the critical words were in the circumstances satisfied was presented in two ways. In the first place it was argued that, as a mere matter of construing the English language and apart from any special fiction of law applicable to posthumous children, it was accurate and according to ordinary parlance to describe a deceased person as having died leaving issue him surviving although his only issue was a posthumous child, and indeed that it would not be true to say of such a person that he died without leaving issue him surviving. A deceased person, it was said, must either leave or not leave issue him surviving, and if his only child be a posthumous one then the case falls within the former rather than the latter category; in such a case, if anyone were to ask whether the deceased died leaving issue him surviving, the ordinary and true answer would be in the affirmative, and only a pedantic precisian would answer that he died without leaving issue him surviving, but that he subsequently had issue in the shape of a posthumous child.
This argument is attractive, but, in my opinion, it is unsound. The question whether Thomas William Henry Elliot left issue him surviving is a question which must be determined as at the date of his death. At the date of his death he had no issue. If common parlance is to be appealed to, the deceased's obituary notice would undoubtedly have stated that he died leaving no children. I do not think that it is justifiable to seek to alter what was the fact at his death by what subsequently happened. It may be accurate enough now to say that he died leaving issue him surviving, but it would not have been accurate to say so at the date of his death, and that is what matters. It may well be that if someone had said to the testatrix; "But what if your son has only a posthumous child"? she might have replied; "I mean to include that case"; and appropriate language might have been used to do so. But the question presumably was not asked, and the case of a posthumous child was not covered. I am accordingly against giving to the language of the testatrix a meaning which, according to the ordinary use of words, it does not bear.
The respondents' second argument invokes the special benevolence which the law has always shown towards posthumous children. The judgments below are mainly based on this principle, but with all respect I think that it has been misapplied.
From the earliest times the posthumous child has caused a certain embarrassment to the logic of the law, which is naturally disposed to insist that at any given moment of time a child must either be born or not born, living or not living. This literal realism was felt to bear hardly on the interests of posthumous children, and was surmounted in the Civil Law by the invention of the fiction that, in all matters affecting its interests, the unborn child in utero should be deemed to be already born. The classical statement is to be found in the words of Paulus:
"Qui in utero est, perinde ac si in rebus humanis esset, custoditur, quoties de commodis ipsius partus quœritur: quamquam alii, antequam nascatur, nequaquam prosit"
—Dig. Bk. I, Tit. v, de statu hominum,sec. 7—thus rendered in Monro's translation:
"An unborn child is taken care of just as much as if it were in existence, in any case in which the child's own advantage comes in question; though no one else can derive any benefit through the child before its birth."
"There is indeed," says Craig, commenting on this passage, "no reason in the case of a posthumous child to aggravate the calamity it suffers by the premature death of the father, nor to make that event a ground for diminishing its rights"—Jus Feudale, II, xiii, 15, Lord Clyde's translation, vol. ii, p. 643.
This fiction has undoubtedly been adopted in the law of Scotland. I have already quoted Craig's approval of it in the sixteenth century. Writing in 1681 Stair, in his Institutions of the Law of Scotland,states that "in all things tending in favour of those unborn, they are accounted as born." Bankton puts it thus:
"A child in the mother's womb is esteemed as already born, in all things that concern its own interest, but is not reckoned among children, in relation to questions to the advantage of parents from a certain number of children"
—Inst. I, ii, 7, and see also his Observations on the Law of England thereon—Inst. I, ii, 1, at p. 72. Erskine in his Institute gives the maxim in the shorter form:
"Qui in utero est, pro jam nato habetur, quoties de ejus commodo quœritur."
A more recent and fuller statement of the Scots law on the subject is contained in the treatise on Wills and Succession by the late Lord M'Laren, who refers to "the doctrine of the Civil Law, which has long been received in our system of jurisprudence—that a child born after the period at which the vesting of a right falls to be determined, but proved by the period of its birth to have been in utero at that time, is entitled to the rights of an existing person from the period of its conception. The leading case in the law of Scotland is that of Lord Mountstewart v. Mackenzie, where the question was elaborately discussed, with reference to the rights of a child in utero to take as heir of provision in preference to a collateral substitute, and was decided in conformity with the rule of the Civil Law. The fiction of law, which treats the unborn child as actually born, applies only for the purpose of enabling the child to take a benefit to which, if born, it would be entitled; and therefore, where the right of a stranger is conditioned to take effect on the birth of a child within a certain time, the right will not accrue unless the child be actually born within the time limited."
I have troubled your Lordships with these numerous authoritative citations in order to place it beyond doubt that, according to the law of Scotland, a child in utero is fictionally deemed to be already born only when the result of applying the fiction is to benefit the child when actually born, and that the fiction cannot be invoked in the interests of any third party. Your Lordships were indeed referred to one recent Scottish decision where the Second Division of the Court of Session declined to apply the fiction, even though it was to the interest of the posthumous child to do so, because, in the will there under consideration, the testator had indicated with reiterated emphasis that only those children of his son who were born prior to to the date of the testator's death were to participate in his bequest—Burns's Trustees v. Burns . I confess that for myself I should not be disposed to approve this decision were it before your Lordships for review; I cannot see why the operation of the fiction should be excluded to the detriment of the posthumous child by the fact that the testator has several times and emphatically used the very language which brings the fiction into operation.
It is satisfactory for the purposes of the present case to find that the law of England in this matter is to all intents and purposes the same as the law of Scotland. The same fiction, derived from the same source in the Civil Law, and qualified by the same condition, is common to both systems. In the English case of Villar v. Gilbey your Lordships' House had occasion to emphasise that the limitation, which the Court of Appeal had there discarded, was an essential part of "this peculiar rule of construction," which, accordingly, applies only where it is for the benefit of the unborn child to apply it.
Can it then be said that, in the present case, such benefit would result to the posthumous child from applying the fiction as to justify its application? It will be observed that, if the fiction be applied, the result is not to benefit the posthumous child but to benefit the estate of its deceased father. In the Courts below the benefit to the father's estate has been regarded as sufficient to justify the application of the fiction, on the ground that a child naturally and normally benefits, albeit indirectly, by anything which enhances the assets left by its father. It is said that the posthumous child's interest as next of kin in his father's estate renders it to his interest that he should be treated as having been actually alive at his father's death. I may point out that, the father having been domiciled in Scotland, the posthumous son was in any case entitled in name of legitim to an indefeasible right in one-third of his father's moveable estate, testate or intestate, unless this right was excluded by marriage-contract or otherwise discharged. But I am clearly of opinion that it is not an indirect or problematical commodum such as this that is meant in the limitation of the fiction. The commodum must, in my opinion, be the direct commodum of the posthumous child itself. The result of the application of the fiction in the interpretation of a bequest must be to bring the posthumous child within the benefit of the bequest as itself a participator. Any other view would render the rule uncertain and haphazard. It may, no doubt, be to a child's benefit that his father should die wealthy, but in England at least he may find himself cut off with a shilling by his father's will and so take no benefit from a construction which benefits his father's estate but does not benefit him. Or the father may be insolvent and the application of the fiction may benefit only the father's creditors and confer nothing on the posthumous child. And it might be almost equally said, if the destination-over brought into operation by the fiction sent the money to an aunt or a grandfather, that it was to the advantage of the posthumous child to have a wealthy aunt or grandfather, especially if he had the expectation of being an object of their bounty.
The sound view, in my opinion, is that the application of the fiction ought not to be at the mercy of such adventitious circumstances, and that the commodum of the posthumous child must be a direct commodum to itself resulting from the instrument under construction by virtue of the application to that instrument of the benevolent fiction in question; as, for example, to take the simplest case, where a testamentary gift is made to the children of X at the testator's death, and the result of the application of the fiction is to include a posthumous child among the beneficiaries.
I accordingly concur in the motion that this appeal be allowed, and an order made in the terms which my noble and learned friend Lord Russell of Killowen has proposed.