At common law, a child en ventre sa mere at the time of the death of the intes-tate, if subsequently born alive, is regarded as living at the time of such death, for the purpose of taking from him by descent,70 this according with a general rule that such a child is to be regarded as living when it is to its interest so to regard it.71 The common law rule has been applied in a number of decisions in this country,72 occasionally subject to the qualification that not only must the child be born alive, but the period of its cellent summary of the statutes, with references to some of the decisions thereon, in 1 Dembitz. Land Titles, Sec.Sec. 39, 40. See also 27 Am. & Eng. Encyc. Law (2nd Ed.) 327.

68. 1 Stimson's Am. Law, Sec. 3151; 1 Woerner, Administration, Sec. 75.

69. 1 Stimson's Am. St. Law, Sec. 3154; 1 Woerner, Administration, Sec. 75.

70. Watkins, Law of Descents, ch. 4; Challis, Ileal Prop. (3rd Ed.) 139.

71. See Doe d. Clarke v. Clarke, 2 H. Bl. 399 Gray Perpetuities, Sec. 220; Williams, Real Prop. (21st Ed.) 363. See for a general discussion of the status of such a child, editorial note 26 Harv. Law Rev. 038.

72. Morrow v. Scott 7 Qa. 535; Barr v. Gardner, 269 111. 256, 102 N. E. 287; Massie v. Hiatt'a Adm'r. 82 Ky. 314; Aubuchon v. Bender, 44 Mo. 560; Giles v. Solomon, 10 Abb. Prac (N. S.) 97; Hill v. Moore, 1 Murph. (5 N. C.) 233; Pearson v. Carlton, 18 S. C. 47.

Foetal existence must have been such that its continuance in life may be reasonably anticipated,73 and in a number of states the common law rule has been confirmed by statute.74 In many states, however, the statute in terms provides for inheritance by posthumous children only who are the children of the intestate, or, in some, who are descended from him.75 A statute thus excluding posthumous children other than children of the intestate has been construed to exclude only those born after the death of the intestate, and not to exclude a relative previously born merely because he happened to have been born after the death of his own father.76

A child which was en ventre sa mere at the time of the intestate's death, and entitled to take by descent from him, cannot be divested of his interest, it has been held, by a proceeding to which he was not a party, even though the decree therein was rendered before his birth.77

The case of descent to a child en ventre sa mere at the time of the intestate's death presents one case of what has been referred to as the doctrine of shifting inheritances, by which, as it was recognized at common law, the estate of the person who was next in the line of descent at the time of the intestate's death was liable to be divested in favor of one subsequently born who was nearer in the line of descent.78 In so far as descent to a child en ventre sa mere at the time of the intestate's death is recognized, the inheritance necessarily shifts,

73. Nelson v. Iverson, 24 Ala. 9, 60 Am. Dec. 442;; Harper v. Archer, 4 Sm. & M. (Miss.) 99, 43 Am. Dec. 472; Marsellis v. Thalhimer, 2 Paige 35, 21 Am. Dec. 66.

74. 1 Stimson's Am. St. Law Sec. 3136.

75. 1 Stimson's Am. St. Law, Sec.Sec. 2844, 3135, 3136; 1 Woerner, Administration, Sec. 74.

76. Shriver v. State, 65 Md.

278, 4 Atl. 679.

77. Botsford v. O'conner, 57 111. 72; Massie v. Hiatt, 82 Ky. 314; Giles v. Solomon, 10 Abb. Pr. N. S. 97; Deal v. Sexton, 144 N. C. 157, 119 Am. St. Rep. 943, 56 S. E. 691.

78. 2 Blackst. Comm. 208; 3 Cruise's Dig. tit. 29 ch. 3, Sec. 11; Watkins, Law of Descents, 169, 185.

Either partially or wholly, upon his subsequent birth. But in several cases in this country the doctrine of shifting inheritances has been repudiated, in so far as it was asserted in favor of a person born after the intestate's death who was not at the time of such death en ventre sa mere.79 Occasionally the statute provides that no child born after the intestate's death shall take by descent unless born within ten months thereafter.80