EN VENTRE SA MERE (Fr.). In its mother's womb. For certain purposes, in deed for all beneficial purposes, a child en ventre sa mere is to be considered as born ; 5 T. R. 49 ; 1 P. Wms. 329. It is regarded as in esse for all purposes beneficial to itself, but not to another ; Marsellis v. Thalhimer, 2 Paige (N. Y.) 35, 21 Am. Dec. 66; Gillespie v. Nabors, 59 Ala. 441, 31 Am. Rep. 20 ; [1908] 1 Ch. 4; [1907] A. C. 139. Formerly this rule would not be applied if the child's In terests would be injured thereby ; 2 De G., J. & S. 665 ; but, for the purpose of the rule against perpetuities, such a child is now re garded as a life in being, even though it is prejudiced by being considered as born; [1903] 1 Ch. 894 ; [1907] A. C. 139. Its civil rights are equally respected at every period of gestation ; it is capable of taking under a will, by descent, or under a marriage settle ment, may be appointed executor, may have a guardian assigned to it, may obtain an in junction to stay waste ; Stedfast v. Nicoll, 3 Johns. Cas. (N. Y.) 18; Swift v. Duffield, 5 S. & R. (Pa.) 38; 1 Ves. 81; 2 Atk. 117; Bacon, Abr. Infancy (B); 2 H. Bla. 399; 2 Vern. 710; 4 Ves. Jr. 227. Such a child is to be considered as living so as to vest in the parent on the death of the life tenant a de vise made by a testator to A for life, and on her death to the parent of the child, "for her absolute use and benefit in case she has issue living at the death" of A, "but in case she has no issue then living," then over, when the parent was enceinte at the time of A's death ; [1895] 2 Ch. 497. The right of an unborn infant to take property by descent or otherwise has been said to be an inchoate right, which will not be completed by a pre mature birth ; 1 Sharsw. Bla. Com. 130, n.; but as the word premature is used in the authorities, the rule accurately stated is that it must be born alive or after such pe riod of foetal existence that it might reason ably be expected to survive ; Harper v. Arch
er, 4 Smedes & M. (Miss.) 99, 43 Am. Dec. 472 ; Swift v. Duffield, 5 S. & R. (Pa.) 38; 4 Kent 248; Marsellis v. Thalhimer, 2 Paige (N. Y.) 35, 21 Am. Dec. 66.
A bastard en ventre sa mere is not regard ed as in esse because, as it was said, such child could not take "until they have gained a name by reputation" and "that reputation could not be gained before the child was born" ; 1 P. Wms. 529 ; but in a case decided long afterwards Lord Eldon (with whom, he stated, Sir William Grant concurred) held that a bequest to an illegitimate child en ventre sa mere was valid if there were a sufficient description to identify it; 1 Mer. 141; and the court of appeal followed this (though with Selborne, L. C. dissenting) ; 9 Ch. App. 147, which case was followed in [1906] 1 Ch. 542, and [1905] P. 137. The question whether an illegitimate child en 'centre sa mere at the testator's death, but not when his will was made, might take as his reputed child, was left undecided; 31 Ch, D. 542; and a bequest to an illegitimate child en ventre sa mere at the date of the will was held good and not contrary to pub lic policy; 3 Ch. D. 773. These questions derive special interest in • England because they frequently arise in case of marriages with a deceased wife's sister.
Such unborn child may have an injunction to stay waste, have a guardian, and take under a charge of a portion, or be executor ; 2 Ves. Jr. 319; but it is held that an infant may not recover damages for injuries receiv ed before its birth ; Dietrich v. Northampton, 138 Mass. 14, 52 Am. Rep. 242.
See an elaborate article on unborn infants, action by, when they take, conveyance to, de gree of development necessary and rights of action in detail ; 61 C. L. J. 364. And see Tyler, Inf. & Coy. ch. xiv.; 21 Harv. L. Rev. 360; POSTHUMOUS CHILD; FCETCS ; NEGLI GENCE ; UNBORN CHILD.