Barnardiston wallis and Hodson Jan a posthumous child shall be entitle within  the statute of James c to a Sh be in a brother or sister be personal estate  equal as if such child have be bear in the life of the brother or sister James  Wallis a inhabitant of the province of York die intestate leave a wife and one  son tower Wallis at the time of his death his wife be enseint with a daughter  tower Wallis die after his father and then the mother be deliver of a daughter  name Elizabeth after this the widow intermarry with Charles Hodson and now the  present bill be bring by Elizabeth the daughter against Charles Hodson and  hiswife pray among other thing a account of the personal estate of tower  Wallis and that that estate may be divide into two moieties the one to the  plaintiff the other to the wife of Charles Hodson the defendant there be a  cross bill file on the part of the defendant pray that the whole personal  estate which belong to tower Wallis may be decree to the wife of Hodson at the  hear of this Cause Lord chancellor think it be a matter of some difficulty  whereupon he direct it to stand over and now he be please to deliver his  opinion in it he say his opinion be that Elizabeth be entitle to a moiety of  the personal estate of her brother tower Wallis notwithstanding she be bear  after his death this be a question which depend upon the statute of James cap  sect the word of which statute be provide also and it be far enact by the  authority aforesaid that after the death of a father any of his child shall  die intestate without wife or child in the lifetime of the mother every  brother and sister and the representative of they shall have a equal share  with her any thing in the last mention Act to the contrary notwithstanding if  the plaintiff sister happen to be bear before the death of her brother without  controversy she will have be entitle to a share of the personal estate of her  brother equal with her mother the only Barnardiston doubt be inasmuch as she  be a posthumous child bear after her brother death but his lordship opinion be  that that circumstance will make no difference it have be admit by the counsel  for the defendant that upon the statute of car common call the statute of  distribution in succession ab having made no will from a father to his child a  posthumous child shall have the benefit of a share of the personal estate of  the father equal with the other child this be agreeable to the intent of that  statute and to that debt of nature which parent owe their child nor will any  inconvenience arise from this because the event of there be such child must  happen in a reasonable time it have be object that in collateral succession ab  having made no will as between brother and sister uncle and nephew there be no  such debt of nature Ithas be say far that Barnardiston er p the distributary  share must vest in the party at the time of the death of the intestate or not  at all and it have be urge that great inconvenience will follow from a  determination that the estate be not then vest and that the vest may be  postpone or break in upon and vary by a subsequent event and in order to  particularize and specify a inconvenience of this sort that may happen the  case of the half blood have be put it have be say that the half blood be equal  entitle to take with the whole that a mother may marry a second husband that  by that mean there may be more brother and sister bear that this may be at a  distance of time and that in this way the distribution of the party estate may  perpetual vary these be the several objection that have be make and his  lordship say he will consider they separate in the order which they stand in  the first of these be that there be no debt of nature in collateral succession  but that circumstance be of no weight in the case of lineal succession where  that observation have be make use of as a argument for give a share to the  posthumous child that have be only a additional corroborative reason and the  primary reason have be the intention of the statute to preserve the estate of  the father among his own child Barnardiston the second objection have be that  the estate must vest on the death of the intestate and it be indeed true that  this be general lie down in in vern and in vern but this objection be of equal  weight in the case of lineal succession ab having made no will as it be in  collateral one yet there it have never be allow and this appear by the opinion  of Lord Raymond in the case of Edward and freeman report in will the three  objection have be that accord to this doctrine a posthumous child of the half  blood will be able to take and that it have be say will introduce many  inconvenience his lordship say it be very true it have be long determine that  on the statute of car which have be mention the half blood shall take equal  with the whole that point be final so settle in Showerss parliament case where  all the learning upon that head be collect together but his lordship say he do  not find that this point be ever adjudge on the statute of James that a  brother of the half blood shall take as representative to the brother decease  in the case of wats and Cowton this point be mentionedarguendo and many  probable and reasonable argument give for that side of the question but there  be no decision of the point and his lordship say he will give no determination  about it but will leave that point unprejudiced whenever it shall arise have  just give a answer to these objection his lordship say that the principal  reason upon which he find his opinion in the present case be that the  posthumous sister be in ventre sa mere at the time of the death of her brother  and consequent be a person in a thing naturan upon this ground it be that by  the rule of the common and civil law she be capable of take in Succession by  the rule of the commonlaw a infant of this kind may be vouch in a common  recovery and in behalf of such a infant a mother Barnardiston may justify  detention of charter and in vern it be hold that on behalf of such a infant a  bill may be bring and a injunction grant to stay waste so in the construction  of will and use a infant of this sort be capable of take for notwithstanding  the case of slow and Cuttler it be now settle that such a infant be capable of  take by devise and of that opinion be two judge in the case of scattergood and  edge accord to a manuscript report which he have of that case but though this  be so yet every body know that that which give rise to the statute of car  which have be mention be the contention which be then depend between the  temporal and ecclesiastical court in relation to the power which the  ecclesiastical court at that time exercise of compel distribution and take  bind for that purpose the rise and progress of this dispute be mention in Mod  and in Raymond that statute have ascertain that point in favour of the  ecclesiastical court and the most material clause in that statute be relative  to their law and the course of proceed in their court in the three section of  that statute it be say that the judge of those court shall order and make just  and equal distribution of what remain clear after all debt funeral and just  expense of every sort first allow and deduct among the wife and child or child  child if any such be or otherwise to the next of kindred to the dead person in  equal degree or legal represent their stock pro his whoever it be jure accord  to the law in such case and the rule and limitation hereafter set Barnardiston  er p down and the same distribution to decree and settle and to compel such  administrator to observe and pay the same by the due course of his majesty  ecclesiastical law several expression in this clause show that the main design  of the Act be as have be mention to make the exercise of that jurisdiction in  the ecclesiastical court legal which Barnardiston before that time be  condemned in the temporal court and in the case of smith and Tracy which have  be cite Lord chief justice holt who be then of counsel with one of the party  argue strong that that statute be not to be construe by the rule of the  commonlaw but by the rule of the canon and civil law and a consultation be  there award in the case of carter and crawly likewise it be hold that that  statute be directory to the ecclesiastical court and that it be ground  principal on their law and the practice of their court in the case of which be  at the roll his honour be of opinion that that statute be to be construe  accord to the civil and canon law and afterward upon a appeal Lord king agree  to that opinion that statute of car confirm the jurisdiction of the  ecclesiastical court which have be mention and enlarge it it set up the  comparison will do you much good which the civil law allow of as this be so  the statute of James must be construe by the civil and canon law likewise in  Ven Lord hale be of opinion that statute make in acquire means be to be take  into the construction of one another and that the statute of Elizabeth relate  to church lease be a kind of appendix to Elizabeth relate to the same matter  and this rule of construction hold more strong in the present case than it do  in that for this statute be a continuance of the statute of car with three  additional clause and therefore it be to be consider as if the statute of car  be repeat and reenact in it as this be so it must be inquire into what the  civil law be in this particular and by that law a infant in ventre sa mere be  consider as in be in such respect as be for the benefit of such infant though  not in those which be to his prejudice this appear by various passage in the  digest Title the that law the that in the same book Title law in justinian  institute lib Title Barnardiston the saint de in the same book lib Title law  in the that book of the digest Title law in the that book of the digest Title  law sect in the that book of the digest Title law sect and which passage his  lordship particular repeat in the present case the question mere be de  suitably Self birth and no way relate to the prejudice of the infant and so  his lordship be please to decree accord