It is at this day a well settled rule of law relative to successions, and to most other cases in relation to infants, that a child in ventre sa mere, as to every purpose where it is for the benefit of the child, is to be considered in esse. Thus in Doe v. Clarke, (2 Hen. Black. R. 399,) where the devise was to every child of C. which should be living at the time of his death, a posthumous child of C *40was held entitled under the devise, . In Miller v. Turner, (1 Ves. sen 85,) a posthumous child was held entitled, under, a provision in'the marriage articles for every child who should j¡vjng at tjje pf the father.- In Hale v. Hale, (Free. in.Ch. 50,) Beale v. Beale, (lPeere Wms. 245,) Northby. v. Strang, (id. 342,) Burdet v. Hopegood, (id. 486,) Rawlins v. Rawlins; (2 Cox. Ca. 425,) and Thelusson v. Woodford, (4 Ves. 227,) the same rule is recognized'.' In' Trower v, Butts, (1 Sim. & Stru. R. 181,) Sir John Leach went still further,, 'and held that under a bequest, to all the children of a nephew of'the testatrix born in her life time, a child of the nephew in. ventre sa mere,'1 at the death - of the " testatrix, and- which •was not born for several months.after, was included, and was entitled to 'ari equal portion with the other children. | ,
It was for .Some time doubted' whether such a child could take a contingent remainder before its birth. That'question was finally settled by ; the decision of the house of lords, in which Lord Chancellor Somers took the lead against the decisions which had been previously made on this subject by the king’s bench and common pleas.' It,is now the settled law both in England and here, that the infant after conception, but before its birth, is in esse for the purpose of - taking the remainder or any other estate or’ interest ■ which is"for the benefit of the infant. ■ (Stedfast v. Nicoll, 3 Johns. Ca. 18, Swift v. Duffield, 5 Serg. & Raw. 38.)
The broad' and" unqualified language which has been used by some* of the judges, has induced the appellant’s counsel to suppose íhé unborn child was to be' considered in existence fo,r ‘every purpose whatever, whether for its own benefit or that of others. That" it may be considered in existence for the benefit,.of others, in some cases, may perhaps be. ■ admitted ; as' in the' case mentioned by BuIIer, justice, (4 Ves. 323,) of an estate given to a third" person during the life of an infant in ventre sa mere. But it must' be recollected, that the' existence of the infant as a real person before birth is a fiction of law, for the purpose of providing for and protecting the child, in the hope and-'expectation that it will be born alive and be' capable of enjoying. those rights which are-thus■ preserved for it im anticipation, The rule' has been derived *41from the civil law; and the constant struggle in the courts has been between that rule and certain principles of the feudal law, which required the heir to be capable of taking an Immediate and beneficial interest in the estate. Especially under the statute of distributions must we resort to the civil law for the purpose of determining who are to take under its provisions.
Previous to the statute directing the grant of administration to the next of kin, the ordinary was in the habit of distributing the estate according to the rule of the civil law; but after the making of that statute, the temporal courts held that the administrator was not bound to make distribution of the residue; and as often as the spiritual courts attempted to compel such distribution, a prohibition was granted. The statute of distributions was therefore a legislative determination of the question in favor of the civilians. And in Walles v. Hodson, (2 Alk 117,) Lord Hardwicke says, “ I now take it to be fully settled that this act is to be construed by the rules of the civil law.”
Although by the civil law of successions, a posthumous child was entitled to the same rights as those who were born In the life time of the decedent, it was only on the condition that they were born alive, and under such circumstances that the law presumed they would survive. The rules on this subject are found in Domat, in the Napoleon Code and in the Civil Code of Louisiana. Children in the mother’s womb are considered, in whatever relates to themselves, as if already born; but children born dead, or in such an early state of pregnancy as to be incapable of living, although they be not actually dead at the time of their birth, are considered as if they had never been born or conceived. (Civil Code of Louisiana, art. 28, 29. Code Napoleon, art. 725, 966. Do-mat Prel. B. tit. 2, § 1, art. 4, 5, 6; pt. 2 lib. 2, tit. 1, § 1, art. 6, 7.) In the article last cited Domat says, “ Still born children are not counted in the number of children who succeeded. And although they were alive in their mother’s womb at the time the successions which concerned them fell, yet *42they have no share in them; for they are considered in the same manner as if they never had been born.” Children born within the first six months after conception, are cong¡dere¿ by the civil law as incapable of living; and therefore, although they are apparently born alive, if they do not in fact survive so long as to rebut the presumption of law, they cannot inherit so as to transmit the property to others. (Code Napoleon, art. 312, 725, 906. Code of Louisiana, art. 205. Dig. lib. 38, tit. 16, 1. 3, § 12 ; & lib. I, tit. 5,1. 12. Domat Prel. B. tit. 2, § 1, art. 5.)
I have not been able to find a case in the English or Amer- ■ ican reports in which the precise question now before me has arisen. The rule of the civil law is however clear and explicit; and as the case must be one of frequent occurrence, the fact that such a claim has not before been made is strongly opposed to the right now insisted on by the appellant. In the analogous case of a tenancy by the curtesy, it is well settled that the child must be born alive in the life time of the mother, to entitle the father to the estate. And even the' delivery of the child alive, by the ccesarean operation, after the death of the mother, is not sufficient. In that case, therefore, the rule holds that the unborn child may take the estate for its own benefit, but is not to be considered as in existence for the benefit of another person.
The question as to what is sufficient evidence that a child was bom alive, and capable of living, so as to enable it to inherit property and transmit it to others, is ably examined by Doct. Beck, whose work on medical jurisprudence is the best treatise of the kind which has been published in this country or in England. (1 Beck’s Med. Jur. 172.) Testing the evidence of what took place at the birth of the child, by •the reasoning of Doct. Beck and the opinion of the physician who was examined before the surrogate, I am satisfied that no court is authorized to decide affirmatively that the child was bom alive. There is no legal presumption in favor of the fact; and as the mother claimed by descent from the child she held the affirmative and was bound to establish her right by legal proof.
*43The decision of the surrogate was therefore correct in awarding one half of the estate to the collateral heirs of the decedent; and his sentence and decree must be affirmed with costs.