Morrow v. Scott
7 Ga. 535 (1849)
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Rule of Law:
A child in ventre sa mere (in the mother's womb) at the time of an intestate's death, who is later born alive, is considered to be in being at the time of death for the purposes of inheritance and is entitled to a distributive share of the deceased's estate.
Facts:
- An individual (the intestate) died without leaving a will.
- At the time of the intestate's death, one of his first cousins was conceived but not yet born.
- This cousin was later born alive within the usual period of gestation.
- A dispute arose among the heirs regarding whether the posthumously born cousin was entitled to a share of the intestate's estate.
Procedural Posture:
- An action was initiated in a Georgia trial court to determine the proper distribution of an intestate's estate.
- The trial court ruled that the posthumously born first cousin was not entitled to a distributive share of the estate.
- The party representing the interests of the posthumous cousin appealed the lower court's judgment to the Supreme Court of Georgia.
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Issue:
Does a first cousin of an intestate, who was in ventre sa mere at the time of the intestate's death and subsequently born alive, have a right to a distributive share of the intestate's estate?
Opinions:
Majority - Warner, J.
Yes. A child in ventre sa mere at the time of an ancestor's death, born within the usual period of gestation, is entitled to a distributive share of the estate. The court reasoned that this principle is well-established in both common law and civil law. Citing authorities like Blackstone and Kent, the court affirmed the legal fiction that a child in the womb is considered born for all beneficial purposes, including heirship. The court referenced precedents such as Wallis vs. Hodson and Hall vs. Hancock, which held that a child is considered in being from conception when it is for their benefit. Concluding that this rule is aligned with principles of justice, the court saw no reason to create an exception or depart from it.
Analysis:
This decision formally adopts and solidifies a foundational common law principle into Georgia's jurisprudence regarding inheritance. It establishes that the rights of an heir can vest at conception rather than birth, preventing the arbitrary disinheritance of a posthumous child. The ruling provides clarity and predictability for estate administration by aligning Georgia law with the prevailing rule in other American states and England. It reinforces the legal concept that the law can recognize an unborn child as a person for the purpose of protecting their beneficial interests, particularly property rights.
