#### WILLIFORD GAY AND OTHERS *against*HENRY BAKER AND OTHERS.

A conveyance in trust for a woman and her children, she having children at the time, nothing appearing on the face of the deed to show a contrary intention^ was *Held*to vest an estate in the mother, and the-children then born, and in one *in ventre sa mare*as tenants, in common, but that children born afterwards were not entitled to-come in.

Cause removed from the Court of Equity, of Franklin county.

The bill was filed against the trustee, Henry Baker, junior, for an account, and for a sale of the property in his hands, and a division of the proceeds among those entitled, according to a deed executed by Henry Baker, senior, on 16th May, 1819. The deed recites, as a consideration, the love and affection which the donor has for Elizabeth Gay and *her*children, and for James Baker, and conveys to Henry Baker, junior, a negro woman by the name of Delaney, and her two children, Mary and Amy, “ to have and to hold the said negroes, to the said Henry Baker, junior, his executors and administrators, for the *345proper use, behoof, benefit and advantage of mv daughter aforesaid, together with her children aforesaid, and for the security of the payment of $125, with legal interest thereon, to my aforesaid son, James Baker.”* The deed then provides for the sale of one of the negroes for the payment of the $125, and gives the overplus of the money arising from such sale, and then proceeds as follows : “ the whole equitable interest in the said negroes, is to belong to my daughter Elizabeth and her children, in common.” All the children of Elizabeth Gay, that were surviving at the bringing of this suit, and the representatives of such as were dead, are made parties, either plaintiff or defendant, as also is the administrator of the said Elizabeth, who is now dead intestate.

The trustee, Henry Baker, junior, answered, giving an account of his trust, (upon which there is no question between the parties,) and stating the fact that four of the children only of Elizabeth, were born at the time of the making of the deed, and one, now Mrs. Garter, was born six months afterwards; and he states that there are conflicting claims set up by the Several children, as to who are entitled, the four born before the 16th of May, 1819, (the date of the deed,) claiming the whole of the property — Mrs. Carter, then *in ventre sa*mare, insisting on the same principle, but claims that she shall come in for one-fifth ; while those born after Mrs. Carter, insist that they are all equally entitled, after the death of their mother. The administafor of Mrs. Elizabeth Gay, urges that she took, with her children *in*esse, and is entitled to one-sixth part of the fund. The trustee asks the court for a construction of the deed above set forth, and for a decree which will protect him against these conflicting claims.

Two of the children, who were alive at the making of the will, died in the lifetime of their mother, and another question is, whether their representatives are entitled to a share. The whole of the slaves, after the sale of one for the payment of James’ debt, and one other for the better provision of the family, remained in the custody of Mrs. Gay, and worked for *346the common support of the family till her death, which took place in 1858.

The several children interested, answered the bill, each insisting on a construction favoring his peculiar interest in the question.

*A. M. Lewis*and *B. F. Moore,*for the plaintiffs.

*R. B. Gilliam*and *J. J. Davis,*for the defendants.

MaNlt, J.

The object of the bill is to obtain an account of a trust fund created by the deed of Henry Baker, under date 16th of May, 1819, and to obtain a sale and distribution of the same to the persons entitled under said deed. In the accomplishment of these objects, a construction of the deed is necessarily involved, and we are accordingly invoked by the pleadings, to aid the trustee in putting a proper construction upon it The trustee submits to an account, but informs the Court that Elizabeth Gay had several children *J)om at the execution of the deed,*one born within the ordinary period of gestation after, and several *subsequent*to that period, and inquires who of them are entitled.

We have considered the terms of the deed, and conclude that the children in being, at the execution of the deed, including the one “en ventre” alone take, to the exclusion of the others. The payment to Jamos, of one hundred and twenty-five dollars, which was a charge upon the fund, having been made, it will follow that the mother, Elizabeth, and the class of children designated, or their representatives, are entitled to absoluto interests in the fund, as tenants in common. After payment of the charge upon the fund, it was a naked, or executed trust in the hands of Baker, which he might, at any moment, have been called upon to surrender, and, it is therefore, to be considered as a legal estate, and vests in such persons as answer the description of the donees, and are capable of taking at the time.

It differs from the cases cited in the argument, viz; *Ponton*v. *McLemore,*2 Dev. and Bat. 285; *Chesnut*v. *Meares, 3**347Jones’ Eq. 416, and *Coakley*v. Daniel, 4 Jones’ Eq. 89. In these, it will be found, that the trusts were either open and executory in their nature, or there was an intention, more or less manifest in the terms of the gifts or bequests, to divide the donees into classes, making one the primary, and the other the secondary objects of the gifts.

But, in the case now before us, such is not the character of the trust, nor have we been able to gather from the terms used, any intention to give in succession, to the daughter the use for life, and then to her children; in which all after-born children would have taken. The donor has taken care, indeed, to express a different purpose, by declaring in one place, that the -daughter shall have the use, *together with*the children, and, in another, that the whole equitable interest shall belong to the,daughter and her children m *common.*

*We*do not feel at liberty, however much inclined to do so, for the sake of equality, to infer an intent contrary to the established interpretation of the words used. The case is analogous to, and is controlled by the authority of *Moore*v. Leach, 5 Jones’ Rep. 88.

Although, by a grant or common law conveyance, nothing could be transferred directly to a child in the womb, for the reason that it could not be a party to such an instrument, yet, in a conveyance to uses, it was otherwise; for then the legal estate vesting in the trustee, the rule of the common law was supposed to be satisfied, and the use was allowed to shift, so as to include a child in the womb. This was, as I understand it, an indirect adoption of the more humane and practical rule of the civil code which regarded a child in the womb as already born for all beneficial purposes.

The case of *Dupre*v. Dupre, Busb. Eq. 164, is not opposed to the rule of construction here laid down, but will be found, upon examination, to be in accordance with it.

Our conclusion, then, is that Elizabeth Gay and her children, born and living at the execution of the deed, and the one *en ventre sa*mere, (or if any be dead, the representative *348of such.) are enlifled to the *absolute*estate *in the*trust fund, as tenants in common.

The parties can have a decree for the sale of the real estate belonging to the fund, and for an account and distribution of the entire fund according to the construction here given to the deed.

Pee Oubiam, Decree accordingly.