INHERITANCE
This subject will be discussed under the following heads: (1) The child must be born alive. (2) The child must be born during the lifetime of the mother. (3) The child must be born capable of inheriting. (4) Tenancy by courtesy, and possessio patris.
1. The Child must be born alive.—This has been discussed in the preceding section.
2. The Child must be born during the lifetime of the Mother.—Death terminates the marriage contract. Would a child born after the death of the mother, and therefore not during marriage, be entitled to inherit?
On this point Lord Coke writes:—“If a woman, seised of lands in fee, taketh husband, and by him is bigge with childe, and in her travell dyeth, and the childe is ripped out of her body alive, yet shall he not be tenant by the curtesie, because the child was not born during the marriage nor in the life of the wife; but in the meantime her land descended.”
It appears from this that the husband is not entitled to the life-rent.
3. The Child must be born capable of inheriting.—Monsters cannot inherit according to law. Blackstone says: “A monster which hath not the shape of mankind hath no inheritable blood,” and cannot, therefore, inherit; but, “if it hath human shape, it may be an heir.”
Buffon classes monsters under three divisions: (a) Monsters by excess of organs. (b) Monsters by defect of organs. (c) Monsters by alteration or wrong position of parts.
A hermaphrodite inherits, or not, property according to the prevailing sex.
4. Tenancy by Courtesy and Possessio Patris.—“When a man marries a woman seised of an estate of inheritance, and has by her issue born alive, which was capable of inheriting her estate; in this case he shall, on the death of his wife, hold the lands for his life as tenant by the courtesy of England.”
There is yet another case bearing closely on this subject, known in law as possessio fratris. On this subject Mr. Amos writes: “In the event of a man twice married dying, and leaving a daughter by each marriage, his estate would be equally shared by the daughters of the two marriages; but if we suppose that there is also a son by the second marriage, born in a doubtful state, the legal effect of his momentarily surviving birth would be to disinherit the daughter of the first marriage entirely, and transfer the whole of the estate to the daughter of the second marriage, she being sister to the male heir, while the daughter of the first marriage is only half-blood.”
In both of these cases proof of live birth, as before mentioned, is of the slenderest kind.
A fœtus in the womb (en ventre sa mère) may—(a) Have a legacy or estate made over to it. (b) A guardian assigned to it. That these conditions may take effect, it must be born alive. (c) Be an executor. To exercise this post partum function, the child must in England have attained the age of twenty-one.