Morrow v. Scott

7 Ga. 535

• Court: Supreme Court of Georgia
• Decided: November 15, 1849
• Docket: No. 88
• Status: Published

Opinion

By the Court. —

Warner, J.

delivering the opinion.

[1.] The only question made by the record in this case for our judgment is, whether the first cousin of the intestate, in ventre sa mere, at the time of his death, but born within the usual period of gestation thereafter, is entitled to a distributive share of such intestate’s estate.

We are of the opinion, both upon principle and authority, that a child in ventre sa mere, at the time of the death of the intestate’s ancestor, who is born within the usual period of gestation thereafter, is entitled to a distributive share of such deceased intestate’s estate. Blaclcstone states the rule to be that, “An infant in ventre sa mere, or in the mother’s womb, is supposed in law to be born, for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards, by such limitation, as if it were then actually born; and in this point, the Civil Law agrees with ours." 1 Bl. Com. 130. 1 Roper on Legacies, 53.

Posthumous children, says Chancellor Kent, inherit, in all cases, in like manner as if they were born in the lifetime of the intestate, and had survived him. This is the universal rule in this country. It is equally the acknowledged principle in the English Law ; andfor all the beneficial purposes of heirship, a child in ventre sa mere, is considered as absolutely born. 4 Kent’s Com. 412. In Wallis vs. Hodson, Lord Hardwicke held that, both by the rules of the Common Law, as well as by the Civil Law, a child in ventre sa mere, is in rerum natura, and is as much one, as if born in the father’s lifetime. 2 Atkyns, 116. In Doe vs. Clark, it was held, that an infant in ventre sa mere is considered as born for all purposes which are for his benefit. 2 H. Blackstone, 399. In Hall vs. Hancock, the Court ruled, that in general, a child is to be considered as in being, from the time of its conception, where it will be for the benefit of such child to be so considered. 15 Pickering’s Rep. 255. This rule is in accordance with the principles of justice, and we have no disposition to innovate upon it, or create exceptions to it.

Let the judgment of the Court below be reversed.