The declaration, as well as bill of exceptions, affirm that the plaintiffs claim the land in controversy, as the heirs at law of Harris G. Bishop, deceased; and the bill of exceptions describes them as his children, by wives who died before the commencement of the suit. This is quite sufficient to show, that the plaintiffs claim as heirs of their father, and is an answer to the supposition of the defendant’s counsel, that the land may have been the estate of the first wife, and she the mother of all the children but the youngest; and that if this were so, (as might be intended against the party excepting,) no injury has resulted from the ruling of the court.
’ An infant in ventre sa mere is supposed in law to be born for many purposes. It is said to be capable of having a legacy, or a surrender of a copy-hold estate made to it — to’ have a guardian assigned to it — to take by descent, and to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. But in the case of descent, the presumptive heir may enter and receive the profits for his own use until the birth of the child. [1. *256Steph. Com. 129, 130, and citations in the notes. See also; 4 Dane’s Ab. 540, 545, 553; Clay’s Dig. 597, § 6.] The law has been so long and so satisfactorily settled, that it is needless to extend this opinion, by adding to the authorities referred to. It is perfectly clear, that the circuit court misapprehended the law, in charging the jury that the posthumous child, if indeed one of the plaintiffs was born after the death of the ancestor, could not join with its brothers and sisters in an action for the recovery of the lands descended. In respect to the ruling upon the other points, no question can arise upon a future trial, and we therefore decline their consideration. Let the judgment be reversed and the cause remanded.