case basset versus basset December vin ab pl SC a posthumous child bear after  the next rentday bad incur after the death of his father be under the two W  entitle to the intermediate profit of the land settle as well as the land  themselves Lord chancellor the bill be bring by a posthumous child to have a  account take of the clear rend of the father estate John Pendarvis Basset the  dispute be both in regard to the real and personal estate I will take they in  their order first as to the real estate the question relate to the estate of  John Pendarvis Basset be this the plaintiff now a infant be a posthumous son  and heir for the father die and leave his wife ensient of he the real estate  consist of different part and under different interest of some small part the  father be seize in fee the great part be include under a settlement which be  to the father for life then to secure a rentcharge of pound a year to his wife  for a jointure remainder to trustee during the life of the father to preserve  contingent remainder remainder to the first and every other son of John  Pendarvis Basset remainder to the defendant the brother of John Pendarvis  Basset atkins er p the plaintiff be bear after the next rentday have incur  after the death of his father it have be insist by his counsel he have a right  to enter and be entitle to the rend in the intermediate time the determination  of this point will depend on W c which be to enable posthumous child to take  estate as if bear in their father lifetime the mischief intend to be remedy by  the act whereas it often happen that by marriage and other settlement estate  be limit in remainder to the use of the son and daughter the issue of such  marriage with remainder over without limit a estate to trustee to preserve the  contingent remainder limit to such son and daughter by which mean such son and  daughter if they happen to be bear after the decease of their father be in  danger to be defeat of their remainder by the atkins next in remainder after  they and leave unprovide for by such settlement contrary to the intent of the  party that make those settlement the provision be it enact that where any  estate already be or shall hereafter by any marriage or other settlement be  limit in remainder to or to the use of the first or other son or son of the  body of any person lawful beget with any remainder or remainder over to or to  the use of any other person or person or in remainder to or to the use of a  daughter or daughter lawful beget with any remainder or remainder to any other  person or person that any other son or son or daughter or daughter of such  person or person lawful beget or to be beget that shall be bear after the  decease of his her or their father shall and may by virtue of such settlement  take such estate so limit to the first and other son or to the daughter or  daughter in the same manner as if bear in the lifetime of his her or their  father although there shall happen no estate to be limit to trustee after the  decease of the father to preserve the contingent remainder to such afterborn  son or son daughter or daughter until he she or they come in be or be bear to  take the same it have be insist on the part of the defendant the mischief be  only the disability of the afterborn child to take the estate because accord  to archer case   b every remainder must vest eastern instant the particular  estate determine and that reeve versus long lev be adjudge upon this principle  there be no notice take in the act of parliament of the case of reeve versus  long but I be of opinion this be not the single motive of the act for the  legislature intend entire to remedy the mischief the son before lose the whole  estate the profit from the death of his father and all the subsequent profit  this to be sure be quite contrary to the intention of the party especial in  marriagesettlement for they can never intend it shall go even perhaps to a  remote remainderman therefore the act of parliament intend to remedy both and  the very title itself express it so as if bear in the father lifetime what be  the recital be in danger to be defeat of their remainder this be a general  expression and include both the loss the be preclude of the estate and  likewise of the profit therefore this act of parliament ought not to be take  so narrow as the defendant counsel will have it atkins but allow it to be so  if the enact word can take it in they shall be extend for that purpose though  the preamble do not warrant it vide atk and innumerable instance of this kind  be in the lawbook next as to the provision of the act the word be so plain  that it be impossible to put any other construction nay it will be repeal the  act to say that the afterborn son shall not take the profit for if he do not  take the profit he do not take in such manner as if bear in the lifetime of  his father the question to be ask upon this be how will he have take the  estate if bear in the lifetime of the father and the obvious and natural  answer will be why from his death how then will he take the profit if not bear  in the lifetime of his father why likewise from his death it have be insist by  the solicitor general that in the case of descent upon the heir he must be in  be and that there be a great many case that say a new act of parliament shall  be construe accord to the rule of the commonlaw but that be where the  construction can be consistent with the word of the act atkins er p there may  have be some ground for this if the act have say he shall take as a son by  dissent at commonlaw which if the legislature have intend it here may as well  have be insert as the present word the next word in the provision be although  there shall happen no estate to be limit to trustee after the decease of the  father to preserve the contingent remainder to such afterborn son c the like  word be in the preamble the legislature intend to put it in the same way as if  there have be trustee to preserve contingent remainder to a afterborn son  there can be no doubt but accord to the usual course of conveyance the profit  may have belong to the posthumous child in Bridgemans conveyancer fol in case  the say I the wife shall happen to be ensient with child by the say I b the  husband at the time of his death to the use and atkins behoof of the say I and  the two trustee under the settlement and their heir until the say I shall be  of such child deliver or die which shall first happen in trust for the benefit  of such child c these word make the mother a trustee throughout of the profit  for the afterborn son and by the word of reference the afterborn child be  entitle a objection have be start that there must be a tenant of the freehold  therefore the uncle must take because if trespass be commit there must be some  person entitle to bring a action that the uncle be seize and how can the  profit be take from he perhaps in this court it be not necessary to determine  it for I can come at they another way and shall not scruple to do it accord to  the doctrine in the prince case   a estate may cease and revive again so here  this may divest on the death of the father and vest on the birth of the son  there be no sort of difficulty as in the case of a bargain and sale enrol when  the estate vest by relation in the bargainee from the time of the execution of  the deed this act of parliament have in my opinion estopped every body from  say he be not bear in the lifetime of his father suppose a ejectment bring by  the son and the demise lie from the death of the father how can the defendant  have except to it for if he lie his demise upon the day after the death of the  father then it will have turn upon the construction of this act and the demise  be only a form of proceed to bring the title in question the defendant in  ejectment must have confess lease entry and ouster or otherwise a infant can  not bring a ejectment if it be consider as a real action but suppose the point  be against he at law yet I be of opinion this court will consider the uncle as  a receiver or a trustee for the afterborn son in like manner as they will  consider trustee to preserve contingent remainder and the word of the act  warrant this this court consider every person who enter upon the estate of a  infant as a guardian and receiver for he there be several case where in  consequence of a act of parliament this court will interfere atkins as where a  new act of parliament be make to alter the law and the judge be formal in  adhere to rule of law and will not construe accord to the word and intention  of the act there this court will take it up and will give remedy here though  it be the business of judge to mould their practice so as to make it  conformable to the legislature it be true the most common way be to give a  legal remedy but to instance in act relate to papist estate the court have  give remedy here therefore I be of opinion that the intermediate profit of the  settle estate must be account for to the son as to the profit of the estate  descend they must be account for only from the birth of the plaintiff vide har    Litt b note Goodtitle v Newman will the other question relate to the  personal estate as to the sum of pound that belong to mrs Elizabeth Basset  give by the grandfather of the plaintiff Francis Basset by way of general  legacy to be pay at twentyone or marriage charge upon a mix fund partly real  and partly personal estate she die before twentyone and unmarried as asset be  admit here and as there have be no determination that where atkins er p the  personal estate be deficient the real estate shall be apply I will not direct  it now say vide prowse v Abingdon atk vide Jennings versus look p wms and the  duke of chandos versus Talbot p wms will this court grant a injunction to stay  the proceed in the ecclesiastical court for the recovery of the legacy certain  not as it be a proper jurisdiction for legacy charge on personal estate it  must go to the representative of Elizabeth Basset and be pay out of the  personal estate December the that Lord chancellor I have not time yesterday to  consider the case of Basset versus Basset so well as I shall have do but speak  chief from my atkins memory and therefore as I see several gentleman yesterday  take note I think proper to mention what in my opinion be very material that  they may add it to the case before the make of pound W the constant method of  all skilful conveyancers be to insert a limitation to preserve the contingent  remainder to posthumous child sometime the limitation be make to the mother  sometime to a trustee for the benefit of the child when bear ever since this  statute all skilful conveyancers have leave it out Ves and this be a strong  circumstance to show the uniform opinion of eminent conveyancers that this act  of parliament carry the intermediate profit as well as the estate if they  think there have be any doubt they will not have leave it out because it will  be of consequence where the estate be large for if half a year shall be incur  it may be the odds of pound to the posthumous child the uniform opinion and  practice of eminent conveyancers have always have great regard pay to it by  all court of justice and as I have mention upon other occasion the case of the  countess of Radnor versus Vandebendy shower parliament case be determine on  the point of dower entire from the opinion of conveyancers upon that head