KNOTTY PROBLEM

Gisborne Times, Volume LXXXII, Issue 12529, 15 April 1935, Page 2

KNOTTY PROBLEM

DID CHILD SURVIVE DEAD FATHER-. LONDON, March IG. “Does a child bom alter the death of his 'father survive his parent? s'’ 5 '’ This was the knotty legal point which the House of Lords decided in a. curious “survival” will test case yesterday. The child was born a month and -a day after the death of the father, and the Houso o!f Lords ruled that it did not survive the father for purpose d'f inheriting property under a will “to any issue him surviving.” The case is likely to make legal his tory. It ’s the first time such an issue has been raised in the House of Lords. The Law Lords, by their decision, over-rule the verdict of Mr Justice Clauson anij the Appeal Court. The case arose over the will Of Mrs Rose Elliot, wife of Thomas Robert Ra me well Elliot ,of Harwood, Hawick, Roxburgh.. Mrs Elliot under the will of her father, John Joicey, who died in 1881. ,had a special power df appointment over a legacy of £50,000 and a share of her father’s residuary estate. The appeal was 'by Mr Robert Barnewell Elliot, of Golden Grove, Carmarthen. The respondents were Lord Joicey and other trustees of the will of Joicey. Mr Wilfred Greene, K.C., and Mr J. W. J. Cremlyn were for the appellants. The respondents were represented by Mr 11. B. Vaisey, K. 0., and Mr Norman C. Armitnge. AN ONLY CHILD. Counsel, supporting the appeal, said the father of the posthumous child—an only child —was All* Thomas William Henry Elliot. He died intestate. He was one of three sons of Mrs Rose Elliot, .and a month after his death his widow gave birth to a son. As a consequence of the terms of Mrs Elliot’s will, the courts were asked to decide this question: Did her son, Thomas William Henry Elliot, leave any issue surviving him?” There was a lono- chain of legal authorities to the effect that the word “living” and the word “horn” might be taken to include a child in being, where it was for the benefit of the child. Lord Tomlin ,in giving the Law Lords’ decision, sai-d the critical words were “in the event of such child of mine leaving any issue him or her surviving” and “in the event of such child of mine not leaving any issue him or her surviving.” Lord Tomlin said he could not think, on the true construction o* those words, a posthumous child of a child of the testatrix was issue left by the parent surviving. The expression was not, in its ordinary and natural meaning, appropriate to include a posthumous child. Discussing the effect- of the House df Lords’ judgment, an eminent barrister said that in a case like this a child born after the death of its father was on the same footing as a child that had never existed!