#### JAMES GRANT, Admr. of PATIENCE PITTS, v. THOMAS BUSTIN, Admr. of BENJAMIN BUSTIN.

June, 1835

Next of kin born before the time when distribution is to be made, are not entitled under the statute, unless they were in ventre sa mere at the death of the intestate.

This was a case for the distribution of the property of the plaintiff’s intestate, originally commenced in Halifax Court of Equity. In the progress of the-cause a question occurred, whether the intestate of-the defendant, viz. Benjamin Bustin, was entitled to any part of the assets in the •hands of the plaintiff, it being admitted that he was the half brother of intestate, Patience, born ten months and a half after-her death. His Honor Judge Martin, on the Fall Circuit of 1833, thinking that the defendant was not entitled, made an interlocutory order, directing the clerk and master to exclude him from the distribution, and upon the prayer of the defendant an appeal was allowed, and the above facts certified.

Badger, for the defendant.

No counsel appeared for the plaintiff.

Gaston, Judge.

The only question presented by this ■appeal is, whether Benjamin Bustin, the half brother of the intestate, Patience Pitts, born ten months and a half after her decease, is entitled under the statutes of distribution to a share of her personal estate, in common with her brothers and sisters living at her death. This ^statute is in the nature of a will framed by the legislature, for all such persons as die without making one for themselves, and directing the disposition to be made of the property upon the death of its owners. After payment of debts the administrator is ordered to distribute the surplus among the lawful friends qf the deceased. In England he is prohibited from making the distribution until a year after the death of his intestate; and in this state he cannot be compelled to make distribution until two years after his appointment. But the rule nevertheless is, that the light to the.distfibütive share vests at the death of the intestate. Edwards v. Freeman, 2 P. *78Wms. 442-446. It is said, the rule is liable to an exception in the case of a child in ventre sa mere. In truth, however, a child in ventre sa mere, is held capable of taking a distributive share, because for all beneficial purposes, it is in reram natura, is regarded as actually in esse. Wallis v. Hodson, 2 Atk. 115. Burnett v. Mann, 1 Ves. Sr. 156. Hill v. Moore, 1 Murph. 233. The very reason on which these adjudications are founded, shows that one not in being, and not considered as in being at the death of an intestate, can, under the statute of distributions, prefer no claim to a share of that intestate’s estate. It is not stated in this case, nor can we infer from the facts set forth, that Benjamin Bustin was in ventre sa mere at the death of Patience Pitts, and we therefore hold, that he was not entitled to the distributive share claimed for him in her personal estate.

The decree below is affirmed with costs.

Per Curiam. Decree affirmed.