In re the Final Judicial Settlement of the Account of Leslie

Cochrane, P. J.: The contention of the respondents which has thus far prevailed is that the residuary estate of the decedent vested at the time of his death and that the appellant not having been in existence at that time is, therefore, excluded from participation therein. Assuming that the estate did so vest the conclusion does not follow that the appellant may not share therein. First. The estate is given to a class consisting of the testator’s grandchildren and one daughter, but the right of enjoyment thereof is postponed for five years or until the death of said daughter should that sooner occur. We think this case falls within the rule that “ the devise or bequest of a corpus or aggregate fund to children as a class, where the gift is not immediate, vests in all the children in existence at the testator’s death, but so as to open and let in children who may come into existence afterwards at any time before the fund is distributable.” (1 Schouler Wills [5th ed.], § 530.) The author adds that this rule of construction “ extends its favor to grandchildren, issue, brothers, nephews, and cousins.” This was the familiar English rule which has been adopted and has become part of the judicial system of this State. (Matter of United States Trust Co., 175 N. Y. 304, 310; Tucker [53] v. Bishop, 16 id. 402; Byrnes v. Stilwell, 103 id. 453; Haug v. Schumacher, 166 id. 506; Corse v. Chapman, 153 id. 466.) Second. The appellant at the time of the execution of the will and at the time of the death of the deceased was a child en ventre sa mere and such a child is considered as in esse for the purpose of enabling it to take an estate. (Matter of Voight, 178 App. Div. 751; Cooper v, Heatherton, 65 id. 561; Quinlen v. Welch, 69 Hun, 584.) In the latter case Haight, J., says: “ It has been held that the civil rights of such an infant are equally respected at every period of gestation; and it is clear that, no matter at how early a stage, it may be appointed an executor, is capable of taking as legatee or under a marriage settlement, may take specifically under a general devise as a child, and may obtain an injunction to stay wastes. [Wharton’s Am. Cr. Law, 537; Commonwealth v. Parker, 9 Metc. 263; State v. Cooper, 2 Zabr. 57; Smith v. State, 33 Maine, 48; In the Matter of Winne, an Infant, 1 Lans. 508, 513; Marsellis v. Thalhimer, 2 Paige, 35; Hone v. Van Schaick, 3 Barb. Ch. 488, 509; Jenkins v. Freyer, 4 Paige, 47, 53; 10 Am. & Eng. Ency. of Law, 624.]” The learned jurist then remarks concerning these authorities that they chiefly relate to the distribution of estates of deceased persons. In Drobner v. Peters (232 N. Y. 220) it was held that an infant does not have a cause of action for negligence resulting in pre-natal injuries. The court withheld its approval of the applicability of the reasoning of Haight, J., in the Quinten case to the question it had under consideration, but there is no disclaimer of the rule that an unborn child may have a right of ownership in property. On the contrary, such rule seems to be recognized in the Drobner case, the court saying: “ By a legal fiction or indulgence, a legal personality is imputed to an unborn child as a rule of property for all purposes beneficial to the infant after his birth (The George & Richard, L. R. 3 Ad. & Ecc. 466), but not for purposes working to his detriment. [Villar v. Gilbey, L. R. [1907] App. Cas. 139, 145.]” And in respect to the rule of liability for personal injuries which was the question there under consideration it was concluded that “ rights of ownership of property do not connote a duty of personal care to the inchoate owner.” On the strength of the foregoing authorities we conclude that the infant appellant is on a parity with the other remaindermen of the trust fund. Third. The language used by the testator indicates that he contemplated afterborn grandchildren. He says: “ To the rest of my direct grandchildren the remaining shares of my said residue * * * equally share and share alike.” When he made his will and when he died there was only one grandchild as disclosed by the record, Catharine A, Leslie Leng, who could be included [54] in that statement. All the others had been specifically provided for. The language is most inapt and inaccurate unless the testator was anticipating the future. It is argued that when he made his will Ms vision was bounded by the occurrence of his death, but it does not seem to us that this is a reasonable interpretation of Ms mental attitude at that time or that he intended to make a distinction between grandchildren who might be born thereafter but before his death, and those who might be born aftdr his death. The decree should be modified so as to provide that the infant appellant shall receive one-sixth of the trust estate, and as so modified affirmed, with costs to all parties filing separate briefs herem payable out of the estate. Decree modified so as to provide that the infant appellant shall receive one-sixth of the trust estate, and as so modified unanimously affirmed, with costs to all parties filing separate briefs herein payable out of the estate.