Elliot v Lord Joicey

Words describing children or issue as born before, living at, or surviving a specified event ordinarily exclude a child then en ventre sa mère. The court may adopt a fictional construction which treats the unborn child as already born only where the instrument thereby confers a direct benefit on that child.

An increase in a parent’s estate is an indirect and uncertain benefit. It does not justify the fiction, even if the child may later inherit part of that estate. These principles apply under both Scots and English law.

A Scottish testatrix exercised a power of appointment under which property passed differently according to whether one of her children died leaving issue surviving. Her son died childless while his wife was pregnant. She gave birth to a son about one month later. The issue was whether the posthumous son counted as issue surviving his father, so that the appointed property passed to the father’s estate.

Clauson J and the Court of Appeal held that the posthumous child could be treated as surviving because enlarging the father’s estate would indirectly benefit him. The will was nevertheless governed by Scots law, a point overlooked below. The House considered whether the ordinary meaning of the will or the legal fiction concerning a child en ventre sa mère supported the lower courts’ conclusion.

Appeal allowed unanimously. Lord Russell of Killowen delivered the principal speech. Lord Tomlin agreed with his reasoning and conclusion in all respects, while Lord Macmillan reached the same conclusion by a detailed examination of Scots law.

1. Per Lord Russell of Killowen, the expressions referring to children or issue as “born”, “living” or “surviving” at a particular time do not ordinarily include a child then en ventre sa mère. “Surviving” requires the person to be alive at and after the specified event. Lord Tomlin and Lord Macmillan likewise concluded that the ordinary meaning of “leaving any issue him surviving” did not include a child born after the parent’s death.

2. Per Lord Russell of Killowen, the authorities permit a fictional construction only where treating the unborn child as born will secure for that child a benefit which the instrument would have conferred had the child actually been born at the relevant time. The justification is that such a child necessarily falls within the reason and motive of a gift made to the described class of children or issue. The fiction cannot be extended merely because doing so may benefit another person.

3. Per Lord Tomlin and Lord Russell of Killowen, enriching a deceased parent’s estate is not a benefit to the posthumous child within this rule. The parent may dispose of the property, debts may absorb it, or the applicable succession law may prevent the child from receiving it. The necessary benefit must therefore arise directly under the instrument being construed.

4. Per Lord Macmillan, Scots law adopts the civil-law fiction that an unborn child is treated as born when its own advantage is in question. That fiction cannot be invoked for a third party’s benefit. Its application to a testamentary instrument must make the posthumous child a direct participant in the gift. Scots law therefore produced the same result as English law.

5. The decisions in In re Burrows and In re Griffiths’ Settlement did not justify extending the fiction to an indirect benefit obtained through a parent. Lord Russell considered that their results could not stand with Villar v Gilbey. Lord Tomlin considered the former wrong and expressed reservations about the latter.

6. The House could determine Scots law without evidence, since it was the ultimate appellate tribunal and common forum for England and Scotland. The will conferred no gift upon the posthumous child. The words accordingly retained their ordinary meaning, and the child was not issue surviving his father for the purposes of the appointment.

1. House of Lords: Allowed the appeal unanimously and displaced the construction adopted by both courts below.
2. Court of Appeal: The Master of the Rolls, Lawrence LJ and Romer LJ upheld Clauson J’s decision. They treated the indirect benefit arising from an increase in the father’s estate as sufficient to invoke the fiction concerning a posthumous child.
3. High Court: Clauson J held that the expression concerning issue surviving could include the posthumous child and that the legal fiction was available, although the child took no direct benefit under the will.