How far will the courts go in regarding a child en ventre sa mere as in being for the purpose of determining the character of interests in property? This question is brought to the fore in Re Joicy, a recent decision of the English Court of Appeal. In that case, a will declared that certain property should be held in trust for all of the children of the testatrix who should survive her and attain the age of twenty-one years, and provided that if any such child should die within the period of twenty-one years "leaving any issue him or her surviving," then in trust for such child absolutely; but in the event that the child should die within the twenty-one years without leaving any issue, his share should go to the other children of the testatrix. One of the sons died before attaining the age of twenty-one, leaving his wife enceinte with a son later born alive. In a controversy as to whether the share of the deceased son belonged to his personal representative or to the other children of the testatrix, it was held that the personal representative should prevail, as the deceased son died "leaving . . . issue him . . . surviving." The ground of the decision was that an indirect benefit would result to the posthumous child by holding that he survived his father.
FUTURE INTERESTS - WHEN IS CHILD EN VENTRE SA MÈRE REGARDED AS IN BEING,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol33/iss3/6