case Elizabeth wallis a infant plaintiff Charles Hodson and Elizabeth his wife  defendant et e contra S c barn Charles I W die intestate and leave issue t W  who die within a week after his father and his wife enseint and on the that of  may follow the plaintiff be bear she be entitle to her share under the statute  of distribution as much as if she have exist in his lifetime James Wallis a  inhabitant of the province of York die intestate in December and at his death  leave issue tower Wallis his only child a infant who die within a week after  his father and the defendant Elizabeth his widow enseint with the plaintiff  who be bear the d of may follow the widow take out letter of administration of  her husband personal estate and possess herself thereof and afterward  intermarry with Charles Hodson the bill be therefore bring by Elizabeth Wallis  against Hodson and his wife pray a account of the personal estate of James  Wallis come to the hand of the defendant Hodson and his wife by their cross  bill insist that Elizabeth not have any jointure before her marriage be by the  custom of the province of York become entitle to one moiety of her late  husband James wallis personal estate and under the statute of atkins  distribution to a three of the dead man share and that her son tower Wallis be  entitle to the other two three of the distributable moiety and that he die  intestate within the say province and without wife or child all his share of  the personal estate by virtue of the statute come to the plaintiff Elizabeth  his mother atkins er p and that the defendant Elizabeth Wallis not be bear  till after the death of tower Wallis the son be bear heir to her father and by  that mean she can not by the custom of the province of York take any part of  his personal estate but be by such her heirship bar and exclude and therefore  pray that the whole personal estate may be decree to the plaintiff Elizabeth  the wife of Hodson Lord chancellor James Wallis have be a inhabitant of the  province of York and dead intestate his estate become devisable into three  equal part one three thereof belong to his widow one three to the son and the  last distributive accord to the stat of pound c c atkins the question  therefore in these cause can relate only to the three part distributable under  the statute and the dispute be as to tower Wallis the son share of the  distributable three whether it shall go entire to the mother Elizabeth Hodson  or in moieties between her and Elizabeth Wallis his sister it have be insist  on behalf of the defendant that tower Wallis die without wife or child his  whole personal estate go to his mother as next of kin and on the other hand  the plaintiff in the original cause claim a moiety of her brother personal  estate under the stat of I I c S the word of which be if after the death of a  father any of his child 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 lastmentioned act to the contrary  notwithstanding to be sure if the plaintiff the sister have be bear before the  death of the brother out of controversy she will have be thus entitle but the  doubt be whether she be so entitle as she be a posthumous child and I be of  opinion it will make no material difference it have be admit that the debt of  nature which the father owe to provide for all his child will extend to  posthumous one for as it be a event which must happen within nine month no  inconvenience can arise from it but then it be object that there be no such  debt of nature as to collateral videlicet brother and sister it have be say if  I shall determine in favour of the plaintiff Elizabeth Wallis it will  introduce this inconvenience that a posthumous child of the half blood may  hereafter be hold able to take so Burnett v Mann Ves but though it have be  long settle that the child of the half blood shall take equal with the whole  under the act of c common call the statute of distribution vide smith for  Tracy in b r vent and shower parliament Cas and Mod yet I do not find any  determination as to this point under the statute of I I and therefore will  leave this point unprejudiced till it shall arise with regard to the  difference that have be take between the collateral and lineal succession to  be sure the atkins principal and primary intention of this statute of I be to  preserve the estate of the father to his own child in a reasonable degree and  not to let the mother run away with too much to her child by the second  husband though it be in general settle that the share vest immediate upon the  death of the intestate and hold equal in lineal and collateral succession vide  palmer versus allocate Mod and dudgeon versus Ramsden vern yet notwithstanding  it have be determine that there be a exception to this rule in the case of a  posthumous child for in Edward versus freeman it be say a distributive share  do not in all event vest in the issue on the intestate death because if there  be a posthumous child such child shall be let in for its share though not in  be at the intestate death wms the principal reason I go upon in the question  be that the plaintiff be in ventre sa mere at the time of her brother death  and consequent a person in a thing naturan so that both by the rule of the  common and civil law she be to all intent and purpose a child as much as if  bear in the father lifetime see Burdet v hopegood p W beal v beal ibidem  miller v turner Ves first as to the commonlaw there be the trite case of a  infant in ventre sa mere be vouch in a common recovery a mother also may  justify the detain of charter on behalf of it a devise to he be good by the  opinion of Treby and Powell in Scatterwood and edge salk a bill may be bring  in his behalf and this court will grant a injunction in his favour to stay  waste vern Musgrave versus Parry et all every body know what give rise to the  statute of c of distribution be the con atkins er p tention between the  commonlaw and the ecclesiastical court see a very good account of this dispute  in palmer and Elliot Mod carter versus Crawley raym the I three and five  section of the statute of distribution show the main scope of it be to make  the jurisdiction of the ecclesiastical court more extensive than be allow by  the commonlaw in wms sir Joseph Jekyll state at large in the case of Edward  and freeman the occasion of make the statute of distribution and I now take it  to be full settle that this act be to be construe by the rule of the civil law  and the statute of atkins I I think ought to be construe in the same manner  which be a act of continuance of the statute of c with three additional clause  and be to be consider as if the statute of c have be reenact and repeat with  these clause second as to the civil law nothing be more clear than that this  law consider a child in the mother womb absolute bear to all intent and  purpose for the child benefit Swinbourn new edit digest lib title l Justin  Inst lib title de exherdatione liberor sect lib title de undutiful testament l  it may possible be say that these rule be only lie down with regard to lineal  but you will find it there equal with regard to collateral digest lib title de  bequest et trust undertaking digest lib title de ventre in possession to cause  to go l S lib title unde cognati l S the last passage in the digest be more  explicit than any other but then it make a difference between a child in  ventre sa mere in be at the father death and only conceive the latter be not  consider as have any relation to the intestate be accord to a term make use of  there not showing signs of life by the Roman law the have a great many child  of one own excuse from the guardianship of other but a child unborn be never  repute to excuse a father from be a guardian nor among the number of the three  liberor but this no way relate to the present case for no question can arise  here but what make for the benefit of the posthumous child and therefore I  decree after payment of the debt and funeral expense of James Wallis the  intestate that the clear surplus of the personal estate be divide into nine  equal part accord to the custom of the province of York and the statute for  distribution of intestates estate and that four nine thereof be consider as  the share of Elizabeth Hodson and be pay or retain by Charles Hodson and his  wife and that four other nine thereof be consider as the share of Elizabeth  Wallis and allot to her and that the remain nine part thereof be consider as  the distributive share of the dead man part belong to tower Wallis decease and  order this nine shall be divide into moieties one moiety thereof to be pay to  or retain by Hodson and his wife and the other moiety thereof to the infant  Elizabeth Wallis Reg lib b fol