En Declaration De Simulation

A form of action used in Louisiana. It is one of revendication (q. v.), and has for its object to have the contract declared judicially a simulation and a nullity; Envin v. Bank, 5 La. Ann. 1; Edwards v. Ballard, 20 La. Ann. 169. EN DEMEURE (Fr.). In default. Used in Louisiana. Bryan v. Cox, 3 Mart. La. (N. S.) 574. EN 0WEL MAIN (L. Fr.). In equal hand. The word oiocl occurs also in the phrase owelty of partition. See 1 Washb. R. P. 427. EN VENTRE SA MERE (Fr.). In its mother's womb. For certain purposes, indeed for all beneficial purposes, a child en ventre sa mere is to be considered as born; 5 T. R. 49; 1 P. Wms. 329. It is regarded as in esse for all purposes beneficial to itself, but not to another; Marsellis v. Thalhimer, 2 Paige (N. Y.) 35, 21 Am. Dec. 66; Gillespie v. Nabors, 59 Ala. 441, 31 Am. Rep. 20; [1908] 1 Ch. 4; [1907] A. C. 139. Formerly this rule would not be applied if the child's interests would be injured thereby; 2 De G., J. & S. 665; but, for the purpose of the rule against perpetuities, such a child is now regarded as a life in being, even though it is prejudiced by being considered as born; [1903] 1 Ch. 894; [1907] A. C. 139. Its civil rights are equally respected at every period of gestation; it is capable of taking under a will, by descent, or under a marriage settlement, may be appointed executor, may have a guardian assigned to it, may obtain an injunction to stay waste; Stedf ast v. Nicoll, 3 Johns. Cas. (N. Y.) 18; Swift v. Duffield, 5 S. & R. (Pa.) 38; 1 Ves. 81; 2 Atk. 117; Bacon, Abr. Infancy (B); 2 H. Bla. 399; 2 Vera. 710; 4 Ves. Jr. 227. Such a child is to be considered as living so as to vest in the parent on the death of the life tenant a devise made by a testator to A for life, and on her death to the parent of the child, "for her absolute use and benefit in case she has issue living at the death" of A, "but in case she has no issue then living," then over, when the parent was enceinte at the time of A's death; [1895] 2 Ch. 497. The right of an unborn infant to take property by descent or otherwise has been said to be an inchoate right, which will not be completed by a premature birth; 1 Sharsw. Bla. Com. 130, n.; but as the word premature is used in the authorities, the rule accurately stated is that it must be born alive or after such period of foetal existence that it might reasonably be expected to survive; Harper v. Archer, 4 Smedes & M. (Miss.) 99, 43 Am. Dec. 472; Swift v. Duffield, 5 S. & R. (Pa.) 3S; 4 Kent 248; Marsellis v. Thalhimer, 2 Paige (N. Y.) 35, 21 Am. Dec. 66. child could not take "until they have gained a name by reputation" and "that reputation could not be gained before the child was born"; 1 P. Wins. 529; but in a case decided long afterwards Lord Eldon (with win mi, he stated, Sir William Grant concurred) held that a bequest to an Illegitimate child en ventre sa mere was valid if there were a sufficient description to identify it; l Mer. 141; and the court of appeal followed this (though with Selbome, L. C. dissenting): 9 Ch. App. 117, which case was followed in [1900] 1 Ch. 542, and [1905] P. 137. The question whether an illegitimate child en ventre sa mere at the testator's death, but not when his will was made, might take as his reputed child, was left undecided; 31 Ch. D. 5-12; and a bequest to an illegitimate child en ventre sa mere at the date of the will was held good and not contrary to public policy; 3 Ch. D. 773. These quest inns derive special interest in England because they frequently arise in case of marriages with a deceased wife's sister. Such unborn child may have an injunction to stay waste, have a guardian, and take under a charge of a portion, or be executor; 2 Ves. Jr. 319; but it is held that an infant may not recover damages for injuries received before its birth; Dietrich v. Northampton, 138 Mass. 14, 52 Am. Rep. 212. See an elaborate article on unborn infants, action by, when they take, conveyance to, degree of development necessary and rights of action in detail; 01 C. L. J. 304. And see Tyler, Inf. & Cov. ch. xiv.; 21 llarv. L. Rev. 300; Postiiumous Child; Fcetus; Negligence; Unborn Child.