The Stourbridge Observer, Cradley Heath, Halesowen & District Chronicle.
Stourbridge, West Midlands, England, 1876-06-24 00:00:00

"CROOK v. HILL."

The above cause has been heard in the High Court of
Justice (Chanc(-ry Division), before Vice-Chancellor Sir
C. Halt.

The questions in the case were of considerable public '
interest—namely, whether the children of the marriage
of a lady with her deceased sister's husband were en-
titled to the benefit of certain gifts in favour of her
children contained in the will of her father, the late
Mr. John Hill. The question had already been de-
cided by the House of Lords in favour of the plaintiffs,
who were two children of the marriage born before the
date of the testator's will, and the case now came
before the Court as to the ri:hts of the remaining two
children, one of whom was "en ventre sz mere" at the
date of the testator's will and of his death, which
occurred shortly after, and the other of whom was
born about a year subsequently to those events. By
his will the testator made provision for his daughter,
tie lady who had married her deceased sister's husband,
during her life, with remainder to her children as she
should app3int, and in default of appointment to all
her children equally at 21 or marriage. The lady died
in 1859, having by her will, made in pursuance of a
power contained in her father's will, bequeathed all
her property to her four children.
Mr. Dickinson Q.C., and Mr. F. H. Colt, for the
plaintiffs, submitted to the Court the q nestion as to
whether the two youngest children were entitled.
Mr. Hinde Palmer, Q.C,, and Mr. Thurston
Holland appeared for the two children in question ;
Mr. Ice, Q.C., and Mr. Whitaker appeared for the
surviving trustee of the testator's will; and Mr. Begg
for the representative of a deceased trustee.

The Vice• Chancellor said it appeared upon the
authorities as they stood that a child of which a lady
was enceinte at the time of a will came within a class
of children constituted thereby, and such -a child was
capable of taking under a power of appointment in
favour of children. It was in fact the general rule that
a child en venire sct mere was included in the expression
"child or children," and canie witcin the terms of a
trust in favouiof children. Was there, then, anything
,in this case irrespective of the question of policy to
import into it a different meaning for the word chil-
dren? The case both before the Lords Justices and
before the House of Lords had proceeded on the view that
the testator had thought proper to make a will based
upon the assumption that this was a legal marriage and
,all his dispositions for that object to take under his
will were framed upon this footing; and a child en ventre
se mere being capable of taking the testator clearly
meant such a child to be included. Tne only remain-
ing question then, Was whether there was anything in
public policy which should prevent such a child from
!taking; and it was clear that there was not, for the
:child, having been already procreated, there could be
no encouragement to immorality in providing for it,
and thus the policy of the law was in no way interfered
.with. Therefore, whether the child was to bs con-
sidered as claiming under the will of the testator or
under the appointment made to her children by the
mother under the power conferred, by the will—which
latter his Lordship considered the true view—that
child was entitled to take. It was an existing child
at the time of the will, and as much entitled as if the
testator had actually described it as the child of which
his daughter was then enceinte. As regarded the other
child, however, his Lordship could not allow it to
take, as that would be against the policy of the law.