Nov. 26, 1864. Will-Execution-Lapse of time-Deficient recollection of witnesses. A will terminated with the words "signed and sealed," the day of the month, and the signature of the deceased. Beneath appeared the names of four witnesses, and opposite each name the words "witness this my name.' There was no formal attestation clause. After a lapse of seven years three of the witnesses had entirely forgotten, and the fourth had a very imperfect recollection, of the circumstances attending the execution. The witnesses identified their own signatures, and that of deceased-Held, that the presumption omnia ritè esse acta applied, and that the will must be admitted to probate. The plaintiffs, Richard Vinnicombe and John Eliezer Boosey, propounded the will of Ann Boosey, formerly of 52, Upper John-street, Fitzroy-square, Middlesex (the wife of John Boosey, surgeon), who died on the 14th May, 1862, as contained in two paper writings, one dated the 10th April, 1857, and the other without a date. The defendants, Elizabeth Butler, wife of Frederick Butler, and Cordelia Harrison, wife of Elwyn Harrison, pleaded that these paper writings were not, or were either of them, executed according to the provisions of the stat. 1 Vict. c. 26. No difficulty arose in the proof of the second document. The paper, dated the 10th April, 1857, was in the handwriting of the husband of the deceased; it recited the power by virtue of which she made a will, disposed of various legacies, appointed Messrs. Batchelor Walker and John Humphrey the trustees of her marriage settlement, as also the plaintiffs executors, and concluded "Signed and sealed this 10th day of April, 1857. "ANN BOOSEY. "Witness this my hand-John Hills. Witness this my hand-(L. s.) Ann Hills. "Witness this my hand-Sarah Pocock. "Witness this my hand-George Hills." Sarah Pocock, on examination, stated that she was at the house of Mrs. Boosey on the day the will dated April, 1857, was executed; that she recollected Mrs. Boosey signed her name in her presence. She thought Mrs. Boosey signed after her (witness). She recollected Mrs. Boosey signing, but she was not sure whether before or after her. John Hills was there; he was there when witness signed; it was in the kitchen. John Hills signed before her. Mrs. Boosey fetched witness to sign her will. After John Hills signed she (witness) went out, and found him there when she returned. She went to attend to the shop. She was not positive whether Mrs. Boosey signed before or after her. Mrs. Hills and John and George Hills were also examined, but they admitted that they had no recollection whatever of the circumstances attending the execution. the deceased was not acquainted with the formalities required to give validity to a will, and, therefore, no presumption arose that it had been duly executed. Sir J. P. WILDE.-The principle, " Omnia ritè esse acta," as regards presence, applies with more or less force, according to the circumstances of each case. Where a regular attestation clause is found, the Court may presume that all things were done in accordance with its terms, and the mere failure of memory of the witnesses will go for nothing. If there be no attestation clause, or it does not express that the will was executed in accordance with the requirements of the statute, the principle will not apply with the same force. I cannot, looking at the manner and form in which this paper was signed, presume that the testatrix was acquainted with what the law required. On the other hand, it will be the desire of the Court not to allow a will to be defeated, where, from the lapse that the prescribed order of the signatures has been of time and failure of memory, it cannot be proved followed; it will be still more reluctant to pronounce against a will, if it be proved that the signature of the deceased has been really attached, and that the parties attended as witnesses at her request. Looking at the evidence which has been given in this case, I have come to the conclusion, that the will was properly signed by the deceased in the presence of two of the attesting witnesses. Sarah Pocock swears that she the deceased signed when she (witness) and John Hills saw John Hills sign; that he signed before her; that He only says his memory is a blank; he does not rewere both present. John Hills does not deny this. collect it. Sarah Pocock further says, she thinks Mrs. Boosey signed after she did, but she is not certain whether before or after. On the whole, I think the paper, April, 1857, must be admitted to probate.— Probate decreed; costs of both sides to be paid out of the estate. In the Goods of ELIZABETH MIDDLETON, Deceased.— Will-Dependent relative revocation. Elizabeth Middleton, late of North Wootton, Norfolk, widow, died on the 16th June, 1864, at the house of the Rev. William Wilcox Clarke, with whom she resided as a domestic servant. On the 26th April, 1855, she made and executed a will in the presence of Mr. Pitcher, a solicitor at Lynn, and Sarah Rolfe, a fellow servant. By this will, amongst other things, she bequeathed 57. to her niece Harriet Sanders, and one-fourth of her wearing apparel. She appointed her master and his daughter Miss Frances Mary Clarke executors. The will remained in her possession until her death. Being desirous to exclude Harriet Sanders from the benefits under her will, she requested her mistress to recopy the will, omitting the bequest to Harriet Sanders, which was done. On the 23rd JaSpinks, for the defendants, submitted, that the in-nuary, 1862, the testatrix executed such will, so reference to be drawn from the appearance of the paper copied, by signing it in the presence of Mary Greene and the manner in which it had been signed was, that and Deborah Cawdron, and Mary Greene attested the Middleton and J. Sharpe, for the executors, contended, that, as the recollection of all the witnesses in regard to the circumstances attending the execution was so defective that the Court could have no confidence in it, the presumption omnia ritè esse acta arose. (Burgoyne v. Showler, 1 Robert. 5). As the testatrix called in four witnesses, it may be presumed she knew the requirements of the law, one of which is, that she should sign before they did. (Gwillim v. Gwillim, 3 Swab. & T. 200). will in the presence of the deceased; but on Deborah Cawdron stating that she was unable to write, Mary Greene, at her request, in her presence, and in the presence of the testatrix, wrote or signed the name Deborah Cawdron, as now appears on the face of that will. Both the papers remained in the possession of the deceased. About a fortnight before her death the testatrix, who was confined to her bed, desired Mary Goldson, her fellow servant, who was in attendance upon her, to bring her a tin box, in which she kept her papers, and the testatrix took out from thence the aforesaid paper, dated the 26th April, 1855, and without making any observation, cut out therefrom, with a pair of scissors, the greater part of the names of the subscribed witnesses thereto, together with that portion of the will which was written on the back of the piece of paper so cut off; and she directed the said Mary Goldson to burn such piece of paper, which was done. The value of the property was under 1007. Spinks admitted that the will of the 23rd January, 1862, was not duly executed. If the two acts, the cutting of the first will, and the excution of the second, had been cotemporaneous, according to the principle of dependent relative revocation, the Court would have admitted the first will to probate. He submitted, however, that the lapse of two years between the acts in this case made no difference; it was clear the deceased destroyed the first will under the impression that the second was valid. Sir J. P. WILDE.-I am of opinion that Dr. Spinks has made out his case. I am satisfied, on reviewing all the facts, that the deceased, in cutting out the signatures of the witnesses, had no other intention to destroy it than on the footing that she had made another valid will. I am satisfied that such was her intention; and if so, it brings the case within the principle of dependent relative revocation, and the first will may be admitted to probate. COURT OF ADMIRALTY. THE PACIFIC.-March 12 and 22. Necessaries and mortgage- Priority - Domicil-Admiralty Court Act, 1861, sect. 5. The term “domiciled" in the Admiralty Court Act is used in its known legal sense; and an action for necessaries will not lie against a ship, the owner of which is only temporarily absent from this country. A material man has not, by the mere fact of supplying necessaries, a maritime lien against the ship, unless he has instituted a suit in the Admiralty Court. In the months of November and December, 1861, and January and February, 1862, the plaintiffs furnished a vessel with necessaries. On the 12th December the defendants became mortgagees of the vessel, and duly registered the mortgage. On the 4th February, 1862, the plaintiffs arrested the vessel in a suit in respect of the necessaries:-Held, that the plaintiff's claim in the Admiralty Court having accrued at the date of the arrest of the vessel, the mortgagees had a prior right to be paid. The Skipwith (ante, p. 445) not followed. This was a suit for necessaries, brought by Joseph Hodgkinson, of Southampton, engineer, against the steamship Pacific, and against John Morris and Frederick Palmer Martindale, joint mortgagees of the ship intervening. The question in the case came before the Court on objection to the defendant's answer. The petition alleged, amongst other things, that the plaintiff, being duly employed for that purpose, executed, in the months of November and December, 1861, and the months of January and February, 1832, certain work, consisting of a new gallery to The Pacific, and repairs to her hull, cabins, and machinery: that in the month of August, 1862, Arthur Turner Clarke, the sole registered owner, quitted this country, and went to reside at New York, or elsewhere in Ame rica, and that at the time of the institution of this suit he had no domicil in this country; and that the mortgagees of the ship have intervened, and given bal in the suit. The answer alleged, amongst other things, that the said Arthur Turner Clarke left this country for the purpose of meeting his said ship at New York, but that he then intended to return to England, and 8:5 intends so to do, and that he was at the time of the institution of this suit only temporarily absent from England, and was at such time domiciled in England or Wales, within the intent and meaning of the Admiralty Court Act, 1861: that if the Court has jurisdiction, the mortgagees claim priority of payment. Dr. Deane, Q. C., and Dr. Middleton appeared in cbjection to the answer. Mellish, Q. C., and E. C. Clarkson, in support. Dr. LUSHINGTON.-This is a suit for necessaries, and is brought by Joseph Hodgkinson, and defended on behalf of the mortgagees of the ship. A petion has been given in and an answer filed, and the present question arises on a motion to reject the answer. The necessaries were supplied, partly in November, hi, and partly subsequently. The mortgage bears de the 12th December, 1861, and was duly registered at the time. On the 7th October, 1863, the mortgages took possession, and on the 4th February, 1864, tha suit was instituted. The owner left England in Angust, 1862. There are two objections, which I sm about to consider, and which I think will dispose of the question before me. The first is, that at the time of the institution of this suit the owner was domiciled in England; and if true, the Court could not entertai the case. In order to oust the jurisdiction of the Court, the statute requires that the plaintiffs prove that the owner was so domiciled at the instit tion of the suit. A discussion having arisen as to the meaning of the word "domiciled," I am of opinio that the Legislature has used it in its known lega authorities; and I think, that if the owner was or sense, such as we find it defined by the highest leztemporarily absent, animo revertendi, the action wou not lie. And though it may be true that such a statute, which is remedial, no such consequence weak. struction would very much narrow the effect of the justify the Court in giving to the word “domicil to it. I cannot reject this article; but it must, if it meaning different from that which legally appertars to be relied upon, be reformed by more specific plead ing; that is to say, by alleging where this person w resident at the time when the order for the necessary was given, and when they were furnished. It present form the article is too vague, as it st merely that he quitted this country at a parti time, and is likely to return, and does not proceed"> set forth where he was previously domiciled. where he is now resident. The most importa question, however, is, whether the material can maintain his claim to priority of payment befor the mortgagee. If he cannot, then he has in th case no effectual remedy, for the amount adva on mortgage would exhaust the funds arising f** the proceeds of the ship. The essential element t a mortgage transaction is the pledge of the ship self; for though the mortgagee may also take personal covenant of the mortgagor, he relies ma upon the ship as his security, which becomes d when the deed is registered, and which cannot be dis glish Legislature, as expressed in the act, which, as has been before stated, gives him no lien upon, but only a right to proceed against, the ship. For these reasons, after having given the question the best consideration in my power, I have come to the conclusion that, in the circumstances of this case, the mortgagor is entitled to be paid in preference to the material man, and in such case, according to the answer, the whole funds, viz. the proceeds of the ship, would be exhausted. Now, I think I am bound to notice the case of The Skipwith, as reported, and I have no reason to say not correctly reported. It may be, that in that case some of the observations made by me, either really or apparently, are not reconcilable with this judgment. The observations may have been correctly reported, but erroneously applied to the facts of the case, as I am now able to ascertain them. I regret that the case of The Skipwith was not brought before the Court in a more formal shape, and that it was not more maturely considered; but if I was in error in that case, assuredly I would never for a mere nominal consistency persist in it. I must order the answer to be amended, but I shall not give the costs of the motion, as the case well deserved serious consideration. placed by the subsequent act of any third person, unless that third person is possessed of some lien which entitles him to precedence. By the law of some countries, the material man has a lien upon the ship, and in very early times in this country also he could maintain a suit against the ship in the Court of Admiralty. But the decision of the Privy Council in the case of The Neptune (3 Knapp, 94) took from this Court the last vestige of such a jurisdiction, and from that date, until recently, the only remedy of the material man was at common law, and there, of course, he could only proceed against the owner, and not against the ship. This state of things was partly altered by the 3 & 4 Vict. c. 65, s. 6, which gave the Admiralty Court jurisdiction to decide all claims and demands whatsoever for necessaries supplied to a foreign ship, and to enforce the payment thereof, whether such ship or vessel might have been within the body of a county or upon the high seas at the time when the necessaries were furnished. This statute not applying to British vessels, the Admiralty Court Act, 1861, gave the Court jurisdiction over any claim for necessaries supplied to any ship elsewhere than in the port to which the ship belongs, unless it should be shewn to the satisfaction of the Court, that at the time of the institution of the suit any owner, or part owner, of the ship is domiciled in England or Wales. The reason of these enactments seems to be plain. A real action in the Admiralty Court is given against a foreign vessel, in all cases, because the owner s assumed to be beyond the jurisdiction, and, vice 7ersâ, it is denied against a British vessel, where the [Coram POLLOCK, C. B., BYLES and WILles, JJ., Owner is within the jurisdiction; or, for a similar rea- Fords, the remedy against the ship is given only where CROWN CASES RESERVED. COURT OF CRIMINAL APPEAL. MICHAELMAS TERM. CHANNELL, B., and SHEE, J.] REG. V. THOMAS TUBERFIELD.-Nov. 12. Evidence-Bad character-Assaulting constable in execution of his duty. The prisoner was charged with assaulting a constable in the execution of his duty. The prosecutor, a policeman on his beat, was about to apprehend the prisoner upon suspicion of having committed a felony, and the assault was committed in endeavouring to resist the apprehension. In order to shew that the prosecutor was acting in the execution of his duty, he was asked in his examination in chief, "What did you know had been the prisoner's character?" to which he answered, “I knew him to be a very bad character." In answer to questions from the counsel for the prosecution, the prosecutor stated a particular instance of the prisoner's having been charged with an offence:-Held, although the constable might state generally that he had a suspicion of his having committed a felony, he could not be asked in his examination in chief the grounds of such suspicions, and, therefore, that the above questions ought not to have been put to him. Case." At the general quarter sessions of the peace for the county of Gloucester, holden on the 28th June, 1864, Thomas Tuberfield was tried before me on an indictment, which in the first count charged him with unlawfully and maliciously wounding Nehemiah Philpott; in the second count, with inflicting on Nehemiah Philpott grievous bodily harm; in the third count, with assaulting and beating, wounding and illtreating, Nehemiah Philpott, and occasioning bodily harm to him; in the fourth count, with assaulting and beating Nehemiah Philpott, a peace officer, to wit, a constable, in the due execution of his office. A fifth count charged a common assault. In opening the case, the counsel for the prosecution stated, that the prisoner assaulted the constable Philpott in resisting an attempt to arrest him on a reasonable suspicion, that a felony had been committed by the prisoner. From the evidence, it appeared that on the 5th May the constable Philpott, being on duty, and standing at a public-house, saw the prisoner and another man go up to the house, the prisoner carrying a bundle of larch trees, which appeared to have been just pulled up. The constable looked at the bundle, and asked where the trees came from. The prisoner replied in very coarse words, and did not answer the question. The constable told the prisoner he thought he had stolen them. To this the prisoner made no reply, but took up the bundle and went along the road. The constable followed and overtook him, and told him he should detain him until he made some inquiries about the trees. The prisoner refused to go with the constable to the police station. The constable then took hold of the prisoner by the collar, and told him he should detain him, and take him to the station. Resisting this and another attempt to arrest him, the prisoner assaulted and beat the constable, inflicting a very severe wound on his head. Evidence was given shewing that the larch trees had been stolen from a plantation in the neighbourhood, and were worth 4d. a piece. The number of trees was eight. In the examination in chief of the constable Philpott, the counsel for the prosecution asked this question, What did you know had been the prisoner's previous character? To this question the prisoner's counsel objected, and urged that except in a few cases specially provided for by statute, the law does not permit a prisoner's previous character to be given in evidence against him. The counsel for the prosecution argued that the prisoner's previous character applied so directly to the issue, whether the constable had reasonable ground to suspect that a felony had been committed by the prisoner, as to make evidence of it impossible. I permitted the question to be put. The answer was, 'I knew the prisoner to be a very bad character.' The constable was proceeding to mention previous convictions, when he was stopped, on the ground that parol evidence of previous convictions could not be received. In answer to questions from the counsel for the prosecution, the constable said, Before the 5th May I had seen him (the prisoner) in this court, and before the magistrates on one occasion.' Cross-examined on this point, he said, 'I saw him in the other court at the last quarter sessions. I gave evidence against him; he was acquitted. At the close of the case for the prosecution, the prisoner's counsel submitted, that as there was nothing to justify the constable's suspicions but his knowledge of the prisoner's character, and the possession of the larches freshly uprooted, and as the larches were of less value than 1., the constable could not have had reasonable ground to suspect that a felony had been committed by the prisoner, and that there was no case to go to the jury. Anticipating this objection, the counsel for the prosecution had, in opening the case, suggested that the larches might have been severed by some person, and afterwards stolen by the prisoner. He had also drawn my attention to the 32nd, 33rd, and 36th sections of the Larceny Act, 1861, the 24 & 25 Vict. c. 96, and the 20th and 21st sections of the act relating to malicious injuries to property (24 & 25 Vict. c. 97), and suggested, that for ought that appeared to the constable at the time of the attempt to arrest the prisoner, the eight larches might have been property, or part of property, in respect of which some one or more of the felonies described in those sections had been committed by the prisoner. It did not appear at the trial, whether at the time of the arrest the constable knew the value of the trees. The counsel for the prosecution also argued, that even if the constable was not justified in arresting the prisoner, greater violence was used than was necessary to resist the attempt to arrest him. I thought there was a case for the consideration of the jury, and in sum ming up, I submitted to them in writing two questions:-The first question was, 'Do you think that the constable had reasonable ground for suspecting that a felony had been committed by the prisoner? The answer of the jury to this question was 'Yes.' The second question was, 'Do you think that the prisoner used more violence than necessary to resist an unlawful attempt to arrest him? To this question the answer of the jury was 'No.' The jury then, under my direction, returned a verdict of guilty, and I respited the judgment, and remanded the prisona to the gaol, in order that the opinion of the justices of either bench, and the barons of the Exchequer, might be taken on two questions: "1. Was evidence of the constable's knowledge at the time of the attempt to arrest the prisoner, of the prisoner's character, properly admitted? "Was there evidence sufficient to be left to the jury that the constable had reasonable ground for suspecting that a felony had been committed by the pri soner? "JAMES FRANCILLON, Chairman." missible; it was not right to state to the jury the Sawyer, for the prisoner.-The evidence was inadcharacter of the prisoner; the general rule is, that i a criminal case, nothing should be submitted to the jury likely to prejudice the prisoner; even where a previous conviction is alleged in the indictment, it s Presumptions, 211, is in point. The prisoner cannot not to be given in evidence. What is said in Best c be fairly tried. THE COURT then called on on the Gilmore Evans, for the prosecution.-The evidence was admissible; it was adduced, not to prove the pri soner's guilt, but to prove that the constable's suspi cion was reasonable; and though the evidence of character would have been collateral as to the former question, it was not so as to the latter. The question was the same as arises on a plea of justification, in an action for false imprisonment or malicious prosect tion, where every possible ingredient acting mind of the arresting party is admissible, the value of each ingredient being another thing. Character is necessarily a most important ingredient, and it ha never been doubted that this is so, it having bee constantly alleged in, and proved under, such plea (Williams v. Cresswell, 2 Car. & K. 422; Hogg v. Ward 27 L. J., Ex., 443; Allen v. Wright, 8 Car. & P. 5224 it being, of course, always to be assumed, that the arresting person knew of it. Even so much less important ingredient as a person being in difficultie to the knowledge of the defendant, was taken into consideration. (Hailes v. Marks, 30 L. J., Ex. This is further illustrated by 2 Hawk. P. C., c. 12. 8-15). And again: a policeman is in a peculiar pos tion; his business is to look out for suspicious char ters, and to act on suspicion; and he is justifed acting on mere hearsay; as, for instance, in in v. Hardwick (5 Car. & P. 495). As to prejudice. none to the prisoner, who, in fact, is not on his t but the constable; and this kind of evidence is truth, for his protection, that it may not rest on mere judgment of a constable, as to whether there be re sonable suspicion, but that the grounds may be s mitted to the Court, to see if this be so. As to b policy of the law not to prejudice the prisoner it is not applicable to such a case as this, where the question is not the prisoner's guilt; secondly, the pa ticular exceptions by statute as to previous conva tions would prove the rule the other way, if anything in truth, the exclusion of character resting on its beg collateral to the question of guilt. POLLOCK, C. B.-We are all of opinion that the Dec. 3,] 1864. [Chancery.] THE JURIST.-REPORTS. [Chancery.] 1113 questions ought not to have been put. The constable might generally state he had a suspicion that the prisoner had committed a felony; but that does not justify the originally putting the grounds of the suspicion; those may be elicited, if thought proper, by cross-examination. In the first instance, the questions ought not to be put, the object being to prevent anything coming out to prejudice the prisoner.-trustees for the time being of such accumulated proConviction quashed. last named and described as shall be then living, share and share alike;" and the testator further directed, that if at the time of such division, any such child or children should not personally make his or her legal claim to his or her portion thereof within eighteen months after such division had been, or ought to have been, made, he, she, and they should be considered as dead; and the COURT OF CHANCERY. WENTWORTH v. LLOYD.-Nov. 17. Practice-Order of the House of Lords made an order of the Court of Chancery. An ex parte application that an order of the House of Lords, dismissing an appeal with costs, might be made an order of the Court of Chancery, was granted. An appeal from an order of his Honor Sir J. Roailly, M.R., having been dismissed with costs by the fouse of Lords during last session, the respondents ow sought to enforce the order for the payment of he costs, which could not be done, as the House of ords was not sitting; they, therefore, asked that the rder of the House of Lords might be made an order f this court. Sir H. Cairns, Q. C., and Pemberton, in support of le application, referred to The Attorney-General v. cott (1 Ves. 418); Mann v. Ricketts (3 De G. & S. 446); ad Set. Dec. 1160. THE LORD CHANCELLOR granted the application. BLASSON v. BLASSON.-Nov. 10 and 21. ill-Construction-En ventre sa mère-" Born and living"-Period of distribution. testatrix by will, made in 1843, declared a trust for accumulation until the youngest of the children of her three nephews and nieces who should be born and living at her decease should attain twenty-one, then to divide such accumulation among the children of the said nephews and nieces as should be then living:-Held, that the words "born and living" were used for the purpose only of ascertaining a period of time, and were not a description of children as objects of the bequest, and, therefore, children in utero were not included. The trust for accumulation ceased when the youngest of the children actually born at the death of the testatrix attained majority, at which time the fund became divisible among the children born after the death of the testalriz, but before the period of division. The fiction of the law which treats an 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. The decision in Trower v. Butts (1 Sim. & S. 181) ob served upon. This was an appeal from a decision of Sir R. T. Kindersley, V. C., reported ante, p. 165. The testa rix in the cause, Sarah Blasson, by her will, dated he 8th August, 1843, gave a sum of stock to trusees, upon trust that they should accumulate the diidends thereon, 66 and when and so soon as the oungest of the children of my three nephews and ieces (therein named) who shall have been born and iving at the time of my decease shall arrive at the ge of twenty-one years, then the said stock, with the accumulations and increase, shall be equally divided among all such children of my said nephews and nieces No. 517, VOL. X., NEW SERIES. perty should be of full liberty, if they should see fit, to divide the share or shares of such absent person or persons between all the rest of such children then living and present, share and share alike, in addition to their original shares; and the whole principal and accumulation should be for no other use, trust, or purpose whatsoever than aforesaid. The testatrix died on the 8th January, 1844. There were eleven children of the said nephew and nieces, who had been born during the lifetime of the testatrix, living on the 20th August, 1863, when the youngest of them attained the age of twenty-one years. There were now living two children of the said nieces, who were en ventre at the time of the death afterwards, and were still infants; and there were cerof the testatrix, and were born within nine months tain others of their children now living who were born after the period of nine months from the death of the testatrix. The questions for the decision of the Court were— first, whether the children in utero at the death of living" at that time; and whether, in case they were so entitled, the period of division must be postponed until the youngest of such children, or any and which of them, attained twenty-one years. The Vice-Chancellor held that the children were entitled, and that the period of distribution was when the youngest of them attained majority. His Honor further held, that all the children of the nephews and nieces born before the period of division were entitled. the testatrix were to be considered as "born and From this decision the defendants, the children and the nephews and nieces born in the lifetime of the testatrix, now appealed. Glasse, Q. C., Cadman Jones, and Grenside appeared for the appellants, the children born before the death of the testatrix, and contended that children en ventre were not included in the words "children who shall have been born and living." Baily Q. C., and J. T. Humphrey, for the children en ventre. Toller, Q. C., and Herbert Smith, for the children born after the death of the testatrix. J. H. Palmer, Q. C., and Gill, for the trustees. Cases cited:-Trower v. Butts (1 Sim. & S. 181); Whitelock v. Heddon (1 B. & P. 243); Doe d. Lancashire v. Lancashire (5 T. R. 49); Bennett v. Honywood (Amb. 708); 2 Swinburne, part 4, s. 15, p. 562, 7th ed.; Millar v. Turner (1 Ves. 85); and Wallis v. Hodson (2 Atk. 114). Nov. 21.-LORD CHANCELLOR.-In Trower v. Butts (ubi sup.), a case determined by Sir J. Leach in 1823, it was decided, that a bequest of personalty in trust for all the children of the testatrix's nephew, born in the lifetime of the testatrix, included a child of which the wife of the nephew was enceinte at the death of the testatrix, although not born until several months after such decease. In the present case some doubt was expressed by the Vice-Chancellor as to the correctness of that decision; but, in my opinion, the judgment of Sir J. Leach was right, and well warranted by antecedent decisions in our law. The same rule prevails in other systems of jurisprudence. In the Digest, b. 1, tit. 5, "De Statu Hominum," s. 7, it is said-"Qui in utero est, perinde, ac si in rebus humanis esset, custoditur |