Page:Harvard Law Review Volume 9.djvu/378

350 3SO HARVARD LAW REVIEW, The result reached by the court, although going far beyond the generally stated rule, that a child is treated as born when for his benefit, is certainly supported by cases arising under the rule against perpetuities (Gray on Perp., §§ 220-222), if not by others. An important case in this connection is that of Blosson v. Biosson, 2 D. J. & S. 665, where an opposite conclu- sion was arrived at. There, however^ the phrase was " born and living," practically contrasting birth with life ; and, besides, the consequences of regarding the unborn child as born would have resulted in postponing his enjoyment of certain property for years, a decided detriment, instead of benefit, to the child. The effect of that decision may, therefore, be limited to cases which would have an injurious influence on the interests of the in- fant en ventre sa mere. On the broader question of whether the child is to be treated as alive or not, when his interests are not concerned, there is little if any authority against In re Burroivs. The cases under the rule against 'perpetuities are, perhaps, to be specially justified by the arbitrary nature of that rule and the better fulfilment of the testator's intention by such an ex- tension of time. At the bottom, however, the notion is the same, and the refusal to include the living though unborn child under the words " issue or child living," in most cases, defeats the real meaning of the testator. His- torically, perhaps, the law has looked at this from a different point of view, but, in logic and reason, would not the other attitude be the better, to con- sider the issue which by the course and order of nature is a living thing, as alive, unless some good grounds be shown, as in Blosson v. Blosson^ for holding otherwise? Who can Question a Devise to a Corporation? — The Court of Appeals of Maryland has just been called upon to take sides on the question whether the power of a corporation to take by devise more property than is allowed it by its charter can be questioned by the testator's heirs, or only by the State. The court recognized the existence of the two doctrines and chose the latter, adopting the view of the United States Supreme Court in Jones v. Habersham (107 U. S. 174) rather than that of the New York court in In re McGraw (iii N. Y. 66). As a matter of authority, the choice was with the weaker side. In the Supreme Court case, the question seems to have been passed over without much consideration, for no reasons are given to support the proposition, and the authorities cited are not in point ; moreover, the circumstance that the case did not require a decision on this subject confirms the impression that the court did not give the mat- ter its serious consideration. In the New York case, on the other hand, the subject was thoroughly investigated ; the point was squarely involved, over a million dollars were at stake, and counsel and court were profuse in their researches. The New York decision appears to have been followed by nearly every court which has had actually to pass upon the question ; the judges who have expressed dicta to the contrary seem, like the Supreme Court, to have taken the matter largely for granted, and to have failed to make an important discrimination. Tlfe confusion seems to arise from treating a taking by devise on the same footing as a taking by deed. Whether there is any true ground for the distinction may be a matter of dispute, but it will at least aid in a clearer understanding of the subject if the two questions are not treated as identical. As to a conveyance by deed where a corporation is forbidden to take the