Opinion
05-22-1860
BENNETT & als. v. TOLER & als.
Macfarland & Roberts, for the appellants, and Grattan, for the appellees: Read and Macfarland & Roberts, for the appellants, and Grattan, for the appellees. Read, for the appellants: Grattan, for the appellees: Macfarland & Roberts, for the appellants:
Upon a devise to a daughter for life, and at her death the property to be equally divided among her children; an illegitimate child of the daughter will take with her legitimate children.
This was an appeal from the decree of the Circuit court of Pittsylvania, in a suit instituted by the children of Henry Toler deceased, against Crafton Bennett and others. The only question in the case arose on the construction of the sixth clause of the will of Joseph Toler deceased.
Joseph Toler died in 1819, and his will was duly admitted to record in the County court of Pittsylvania. The sixth clause is as follows:
" 6th. I give to my beloved daughter Mary Bennett, the tract of land she now lives on, bought of Creps. Also the following negroes: Aggy, Lazenberry, Locky and Sapy. My will is, at the death of my daughter Mary Bennett, that the land and negroes given to her shall be equally divided amongst her children."
The facts are, that Mary Bennett, before her marriage with Lewis Bennett, became the mother of a natural child; and after the birth of this child she married Lewis Bennett and had by him several children, who or whose descendants were the defendants in this case. This natural child, who was called Henry Toler, was born sixteen or eighteen years before the death of Joseph Toler, and was known and recognized by Joseph Toler as the child of Mrs. Bennett. At the death of Joseph Toler, Mrs. Bennett was married to Bennett and had several children by him then living. Henry Toler was then alive; but died intestate in the lifetime of his mother, having married, and leaving the plaintiffs his children, his heirs and distributees. Mrs. Bennett afterwards died, and this suit was brought by the children of Henry Toler, claiming that he took under the will of Joseph Toler, as one of the children of Mary Bennett. The court below decreed in their favor; and the defendants obtained an appeal to this court.
The case was argued orally before a court of four judges, by Macfarland & Roberts, for the appellants, and Grattan, for the appellees: and the court having directed that it should be argued again before a full court, printed notes of argument were submitted by Read and Macfarland & Roberts, for the appellants, and Grattan, for the appellees. The reporter trusts that on a question of such interest he will be excused for giving the argument at length.
Read, for the appellants:
There is no rule of construction, we submit, better settled by an unbroken chain of English and American decisions, than this: Where there are legitimate and illegitimate children in existence at the death of the testator, gifts to " " children" as a class exclude illegitimates. And no case can, we think, be cited in which legitimate and illegitimate children have taken under the same description. 2 Jarm. Wills, 2 Amer. ed. p. 93-4, and American cases cited; Bagley v. Mallard, 4 Cond. Eng. Ch. R. 563. In the last case cited, the testator gave the residue of his property, after the death of his wife and daughter, to all the children of his sons James and William and of his daughter Sarah, in equal shares. William was dead and had an only surviving daughter, Elizabeth. It was held that Elizabeth took no part of the residue, although the testator had, in a previous clause in the same will, devised to her a leasehold in trust, describing her " as his grandchild Elizabeth, the only surviving child of his son William." We also refer to Lomax on Executors, edition of 1857, vol. 2d, top p. 34-36. The same author in his Digest, vol. 3, p. 235-36, lays down the same rule, and adds, " Nor will the application of this rule fail, though the children were described in reference to the mother." In a note on the same page (236), the question is asked, " Has the Virginia statute, as to the capacity of bastards to inherit, any influence in changing this doctrine?" But in his late work on executors, the broad rule of the English courts is laid down, without adverting to the Virginia statute. Lomax on Ex'ors, p. 34.
It will doubtless be conceded that this canon of constructions is entirely settled as a part of the common law of England, and as such, binding in our own courts, unless it is abrogated by our act of descents, which permits bastards to inherit from their mother.
If the act referred to had legitimated all bastards and removed all their disabilities, they might answer the description of " children." But surely a statutory provision which merely removes one of the disabilities of a bastard, in permitting him to inherit from his mother, cannot have the effect of changing his designation and bring him under the description of " children," in a will or deed.
The expression " children," unless qualified, means, in legal technicality and construction, ex vi termini, lawful children. This is its legal meaning in wills and deeds, unless qualified; and every testator in a will or grantor in a deed is presumed to use the word in its technical sense, unless the contrary intention manifestly appears from the face of the instrument itself. But it was contended in the court below, that by the common law a bastard was filius nullius, and that it was for this reason that he did not take under a bequest to children. It should be borne in mind, however, that the rule that a bastard is " filius nullius, " applied only to cases of inheritance: he was subject to no other disability--he had all the privileges of citizenship--he could hold real and personal estate, and give and convey to others. And so far as devises and bequests were concerned, he never was regarded as filius nullius. Jarman says that illegitimate children, born at the time of making the will, may be objects of a devise or bequest by any description which will identify them. 2 Jarm. Wills, p. 94. By the common law a bastard cannot take by descent, but he might always take under a bequest. Now, the reason that in a bequest " children" means lawful children, is founded doubtless on the presumed intention of every testator, in the absence of qualifying expressions, to provide for lawful, in preference to spurious offspring. It is true, that in its primitive sense its more literal meaning, in common vocabulary, might have been legitimate offspring-- Qui ex damnato coitu nascuntur, inter liberos non computenter. We have an instance in the Epistle to the Hebrews from which we infer that the word " sons" in common parlance at that day meant only legitimate sons--" Then are ye bastards, and not sons." But doubtless the controlling motive in giving such a construction to the word " children" was, as we have stated, that in a great majority of cases the testator is presumed to prefer, as objects of his bounty, legitimate children to bastards. Such a preference tends to discourage vice--to encourage purity and chastity. Such a preference is a reproof and punishment to the mother; and the parent, as an example and warning to his other children, in legal construction, only intends to provide for legitimate offspring, when he makes a bequest to his " children." The same motive would be presumed to influence a testator who is a collateral relation, or a stranger in blood to the children of the mother who are the objects of the testator's bounty. And while the legislature, acting on the supposed natural affections of the mother, casts her estate on the unfortunate offspring of her own illicit connexion, and thus in default of a last will provides for the bastard out of the property of one who brought it into being, such a legislative provision could throw no light on the intention of a testator, who is under no legal or moral restraint to provide for the children of the guilty mother; and is presumed by considerations of public morality and decency, to discriminate, in dispensing his bounty, in favor of lawfully begotten offspring.
The argument on the other side seems to us to be no more than this: Whereas by a rule of testamentary construction as well settled as any principle of the common law, children in a bequest means only legitimate children, and the testator is always presumed to intend only legitimate children; yet the act of assembly which permits bastards to inherit from their mothers, changes the supposed intention of the testator, and furnishes the new rule of construction, that " children in testaments shall embrace bastards."
If the English rule is once broken in upon, it would be difficult to foresee all the consequences that would result from its abrogation.
If bastards of a particular female come under the description of children, then in all deeds and in all wills, limiting estates over after the death of a female, to her children, in all instruments in which property is granted or given to the children of nieces or aunts, or to the grandchildren of a particular female, or to grandchildren generally, the words children and grand-children would let in bastards. Powers of appointment to dispose of property among the children of a particular female would be improperly executed, unless bastard children shared in the distribution. A gift to the grandchildren of A, under such a construction, might let in a bastard grandchild whose mother also was a bastard: And possibly the precedent might be stretched to embrace unprocreated and unborn bastard offspring, under the idea that they can inherit from the mother as soon as they come into existence: and even a gift to the " lawful issue" of the mother, might embrace illegitimates, for the argument is, they are lawful issue to inherit, and should be deemed legitimate in a bequest.
All the cases show that " child," taken simpliciter, means a legitimate child only. Wigram, V. C. in Dover v. Alexander, 24 Eng. Ch. R. p. 275, 280. Children and legitimate children, in the construction of wills, are convertible terms. And it seems to us the conclusive answer to the argument, that our act of descents has made them children of the mother, quoad their heritable capacity from her, is, that they still continue to be illegitimate children--and are not included in a devise to " legitimate children," or " children," which are convertible terms.
But there are, we submit, strong reasons why judicial construction should not go in advance of legislative action in removing those time honored restraints upon incontinency and vice that have produced their good effects in our own state, as well as in England. It is difficult to estimate the sanative influence of those rules that keep up the legal distinction between bastards and lawful children, on the morality and social happiness of a community. If a morbid feeling for the unoffending offspring, instead of a stern determination to preserve the chastity of the parent, had influenced the decisions of the English chancellors, illicit intercourse would have been encouraged, and its fruits more numerous. The public virtue and happiness of a state can never be promoted by increasing the number of this unfortunate class by the effort to diminish their disabilities. A testamentary construction that has been so long approved and is so varied in its application, should not be for slight cause abrogated. When Pope Alexander enacted a canon that children born before the solemnization of matrimony might nevertheless become legitimate by the subsequent marriage of their parents, and in consequence of this canon all the Bishops of England, in the reign of Henry the 3d, petitioned the lords to adopt the same rule of legitimation in respect of hereditary succession, all the earls and barons with one voice responded, in the sentiment so often quoted, " We are not willing to change the laws of England which have hitherto been used and approved." The opponents of such an innovation thought " that the great interest of morality is a part of the policy of every well regulated state." They doubtless believed that the inviolable character of the bonds of matrimony and the status of the bastard by the English law operated as a prodigious restraint on vice and lewdness--that legislation and judicial decisions soon operate on public opinion--and they could not foresee the effects of such an innovation, and were not disposed to risk it.
It would not become us to enquire into the policy of the existing law of Virginia, which in a humane spirit, consulting as well the supposed inclination of the mother to provide for her offspring, as the condition of the bastard itself, has moderated the rigor of the common law, both in respect to legitimating the offspring of parents who subsequently marry, and which also gives the bastard a capacity to inherit from its mother. But the legislature has stopped at this point. It has not enacted that the word " children" in a bequest shall be held to embrace natural children. At the date of this enactment, the rule which excludes bastards in bequests to children, was as operative and binding in Virginia as the rule which prevented them from inheriting from their mother. The legislature has repealed the latter and left the former untouched. There is but little connection between the two rules. The repeal or abrogation of the one is entirely compatible with the existence and continued operation of the other. At the date of this enactment a bastard could not inherit from his putative father, from his mother or any other person. After the passage of the act he might well succeed to her property in case of her intestacy, and not acquire the full designation of " legitimate child" or " " child; " which in a will are convertible terms. We might go further and concede, that as a bastard might inherit from the mother, in that restricted sense alone, quoad the right of hereditary succession to her property, he has one of the rights of a legitimate child: but he is still the bastard son of his mother, and if, as in the case under discussion, a grandfather uses the expression " children of my daughter Mary," only the legitimate children of Mary are meant. The mother's name is used for the purpose of identifying a particular set of grandchildren. Suppose Mary had been the only child of the testator and he had given the property in dispute to his grandchildren, no one could doubt but that an illegitimate child of Mary would be excluded.
Nor does the abrogation of one of these rules repeal the other on the ground that the rule ceases when the reason of it no longer exists. We have endeavored to show that one of the reasons, and the principal one, that excludes bastards from answering to the description of children, in testaments, is the presumed intention of a testator to prefer lawful to illegitimate offspring, and upon this idea the courts have given as fixed a meaning to " children" as to the word " heir." Not that bastards could not take, by a proper description under a will, but that in order to take as devisee or legatee, they must be clearly identified. Now if the legislature permits a bastard to succeed to the estate of his mother, it is no reason why the testator should desire the bastard to take his estate under his will. The legislature permitted a bastard to inherit from the mother, under the presumption that if she had made a will, natural affections would have prompted her to provide for him; and that she is under a moral obligation to do so, inasmuch as the disgrace of his status is her fault and not his. This reason, we insist, has no application to a testator who might be a stranger even in blood to the mother and children--who is not supposed to have the feelings of a mother towards her spurious offspring, and who is under no legal or moral obligation to make provision for them.
Grattan, for the appellees:
The legal policy of a people upon any social, economical or political subject, is the proper object of consideration and determination by the legislative department of the government; and the frame of their institutions, or their practical administration, must be radically defective and vicious, if the legal policy adopted by the proper department of the government, is thwarted, perverted or defeated by any other department of the same government. A wiser than Solomon has said, " If a house be divided against itself, that house cannot stand."
Of the social subjects which must engage the consideration of a legislator, there are none of more importance than those which relate to marriage, the relations of husband and wife, parent and child, and of inheritance; and there are none on which all civilized governments have more certainly adopted a policy for themselves. The considerations which may lead to different conclusions are obvious enough, and the conclusion reached in each case has depended upon the relative weight which has been given to these considerations. So far as I am informed, the general policy of the civil law has commended itself to the modern European nations, except England; and it has become the basis of their law on these great social subjects, only so modified as to suit their peculiar circumstances.
England stands by herself on these subjects. It was in relation to them that her sturdy barons replied to king and church, nolumus leges Angliæ mutare. She has repudiated the civil law, and has adopted and adhered to a policy of her own, which has been, with some slight modifications, sternly enforced by the legislative and judicial departments of the government, down to the present day. It is truly an English policy, not adopted even by Scotland. Has it been adopted by the legislature of Virginia?
1st. As to marriages. By the English law the marriage even before the act of 26th George 2d, must have been by a priest. See Addenda 1 to 2 Roper on Husband & Wife, p. 445 and onwards, 32 Law Libr. So it must be since that act, except as to particular religious sects. Id. 483. It must be solemnized in a church or chapel. Id. 484. It must be by publication of banns or by license. Id. And if any of these are omitted, the marriage is null and void. If the parties are within the prohibited degrees of consanguinity or affinity, the marriage was formerly voidable; now it is absolutely void. Shelford on Marriage and Divorce, ch. 3, p. 154, and onwards. So, of idiots and lunatics; Id. p. 183; and by the act of 15 George 2, the marriage of a lunatic as to whom a commission of lunacy has been found, though in a lucid interval, is void. Id. 192. And without going into further detail, it may be stated that the rubrics of the established church in relation to the celebration of marriage, have been enacted by statute; and are therefore to be strictly followed. Id. 29. See 33 Law Libr.
2d. By the law in Lord Coke's time, if the husband was within the four seas, and the wife had issue, no proof was to be admitted to prove the child a bastard, unless the husband had an apparent impossibility of procreation. 1 Thomas' Coke, ch. 11, p. 138, marg. This strictness has been slightly modified since; but even now, if the husband has had access to his wife within a period which would render it possible for the child to be his, he will be held to be the father. 2 Bacon's Abr. 79, title Bastard. Within the enclosure of legal marriage, it is the policy of the English law to hold that the children born of the wife are the children of the husband. If the marriage is according to the prescribed forms and between the proper parties, the policy of the law is to consider whether a child has been born within its folds, rather than whether it is the offspring of the hushand. And see Tucker, P. in Garland v. Harrison, 8 Leigh 368, 389.
3d. It is the same policy which has moulded the law of England in relation to bastards. Their legal disabilities are imposed upon them, not because they are illegitimate, but because they are born out of lawful wedlock. If the policy of the law had been only to limit heritable blood to legitimate children, then the law of England might have extended legitimacy, as the laws of other countries have done, to children born out of lawful matrimony; but that was not the policy of the law; that policy was to confine heritable blood to children born in lawful wedlock; and therefore it has illegitimated, as to this purpose, all others. The phrases " legitimate children," " illegitimate children," and " " bastards," must necessarily have a larger or more limited meaning, dependent upon the laws of the country to which they are applied. Children are legitimate in Scotland and Virginia who are illegitimate in England; are bastards in England who are born in lawful marriage in Scotland. And so it has been held that a child may have heritable blood and inherit an estate in Scotland as heir to his father, and that same child have no heritable blood in England, and be incapable of inheriting an estate there from the same father. Doe ex dem. Birtwhistle v. Vardill, 5 Barn. & Cres. 438, 11 Eng. C. L. R. 266.
4th. 1. In England, a child born before the marriage of the parents, though they afterwards marry and the father recognizes the child as his, is a bastard in law as well as in fact, and has no heritable blood. Supra, 5 Barn. & Cress. 438. 2. Children of marriages within the prohibited degrees, are bastards, and cannot inherit. Formerly the marriages were only voidable, and if the father died before the marriage was dissolved, it could not be done afterwards; but now such marriages are null, without more, and the issue cannot inherit. Shelford Marriage and Divorce, ch. 3, p. 154 to 157, 171 to 173, 179, 33 Law Libr. 3. So if a marriage is not solemnized in a proper place, and by proper license or banns, the marriage is null and void to all intents and purposes whatever; Roper Husband and Wife 486; and the children cannot inherit. 4. Children of a marriage, where there was a former marriage, or where the parties were imbecile or lunatic, are bastards, and cannot inherit. Shelford Marriage and Divorce 183, 185, 186, 190; 2 Bac. Abr. 82, title Bastard, letter (A), 87, letter (B). 5. The bastard child of a mother was held not to be within the statute of 32 Henry 8, ch. 1. 1 Th. Coke 147, marg.
It is clear, therefore, that in England, from the earliest times, all persons born out of lawful wedlock, have been incapable of inheriting lands. It must be not only wedlock, but it must be lawful wedlock: that is, the parties must be capable of contracting, must be authorized to contract a marriage with each other; and the marriage ceremony must be performed at the prescribed place and with the prescribed formalities. Unless born of such a marriage, however he may have been recognized by the parents; however anxiously they may have endeavored to repair the wrong done to the child or to good morals; however ignorant they may have been of any legal prohibition to their marriage, or irregularity in the performance of the ceremony, the child is a bastard, filius nullius, and cannot inherit, even from its mother.
It was under these settled principles of policy and law as to marriage and inheritance, that the courts of England were called upon to construe wills devising estates to children. The settled policy of the law was to confine the transmission of estates to children born of a lawful marriage. The fixed meaning of the term children as to inheritance was the offspring of a lawful marriage. When then these words came to be used in a will, the courts, whether looking to the policy of the law, or the legal meaning of the word in relation to land, or to both, were led to the conclusion that when used in a devise, the word should have the same meaning. But not only did the policy of the law and the legal meaning of the word as to inheritances lead to this conclusion, but this whole doctrine of the law in relation to the inheritance of bastards, and devises to children, has been built up and established in cases, in which the question arose as to the child or children of a man, or of a woman by a particular man. In all that is said in Coke on the subject, the only reference to the children of a woman is in connection with the statute of 32 Henry 8; where a construction favorable to the bastard children was pet upon the statute. Of the many cases I have examined in the English books, the first case in which it was held that a devise to the children of a woman without reference to the father was bad, is the case of Mortimer v. West, 3 Cond. Eng. Ch. R. 439 (decided in 1827); and the only other subsequent case which gives any countenance to it, is that of Dover v. Alexander, 2 Hare 275, 24 Eng. Ch. R. 275: and this was not the case of a will but of a deed. And in both of these cases the question arose in relation to illegitimate children not in esse when the will and deed were made; as to which the courts had frequently decided that a devise to afterborn illegitimate children was void. Methan v. Duke of Devon, 1 P. Wms. R. 529; Earle v. Wilson, 17 Ves. R. 528; Arnold v. Preston, 18 Ves. R. 287.
The question whether illegitimate children are embraced in a devise or bequest, is a question of construction; and I admit that in England, the courts there, under the influence of the settled principles of policy and law in relation to marriage and inheritance in that country, have decided in many cases, that a devise to children, without more, will not include illegitimate children, and that there must be a clear intent, looking to the face of the will, and to the surrounding circumstances, to include them, or they will not be considered as included. Some of the cases have required that the intention to include them should be evidenced by the impossibility of intending legitimate children. Hart v. Durand, cited 2 Jarman Wills 135, marg. and Swaine v. Kennerley, 1 Ves. & Bea. R. 469. These cases even Jarman thinks carry the rule too far; and that they have been overruled by Gill v. Shelley, cited by him, p. 136, marg. The case of Swaine v. Kennerley was decided upon the principle stated by Lord Eldon in Wilkinson v. Adam, 1 Ves. & Bea. R. 422, that the intention to include illegitimate children must appear on the face of the will; which it will be seen, I think, is not now the rule. 2 Jarm. Wills 139-40; and cases which will be referred to presently.
There are other early cases which lay down the rule with great strictness, but with less than those before cited; as Cartwright v. Vawdry, 5 Ves. R. 530; Wil kinson v. Adam, 1 Ves. & Bea. R. 422; Godfrey v. Davis, 6 Ves. R. 43; Harris v. Lloyd, 11 Cond. Eng. Ch. R. 174; a case decided upon the rule that you must look alone to the face of the will to ascertain the intention; and in which the lord chancellor is guilty of the folly, if a harsher word is not more appropriate, of deciding against the children, after saying that he had not the least doubt that the testator meant illegitimate children.
As I have already said, the cases are cases in which the question arose in relation to the children of a man, or of a woman by a certain man. Of course such children could only be known to be such, after they had acquired the reputation of being the children of such a person. And carrying out this rule in Earle v. Wilson, 17 Ves. R. 528, a bequest to a child of which A may be enceiente by the testator, was held not to be good. This case has however been questioned by Chief Baron Richards. Evans v. Massey, 8 Price Exch. R. 22. In Gordon v. Gordon, 1 Meriv. 141, it was held by Lord Eldon, that a bequest to the natural child of which a woman was enceiente, without reference to any person as the father, was good; and a similar decision was made in Evans v. Massey, 8 Price Exch. R. 22.
In the case of Wilkinson v. Adam, 1 Ves. & Bea. R. 422, in which Lord Eldon laid down the rules on the subject with great strictness, and also held that the intention to include illegitimate children must appear on the face of the will, a bequest was held to include both legitimate and illegitimate children, and was valid; and in the case of Gill v. Shelley, 13 Cond. Eng. Ch. 63, a gift to the children of the late Mary Gladman, there being one legitimate and one illegitimate child, was held to embrace both. And in this case parol evidence was admitted to show the surrounding circumstances. And so in the case of Evans v. Davies, 7 Hare 498, 27 Eng. Ch. R. 498, under the word " children," a bastard child was held to be included in a bequest with legitimate children, upon the obvious intention of the testator. In Beachcroft v. Beachcroft, 1 Madd. R. 234, 430, under the words " to my children," it was held testator's illegitimate children took, upon the evident intention of the testator. And in this case parol evidence was introduced. And so Frazer v. Pigott, 1 Younge's R. 354, upon both points; Meredith v. Farr, 21 Eng. Ch. R. 525; Owen v. Bryant, 13 Eng. Law & Equ. R. 217. In the early case in Moor 10, it was held to be clear that a bequest by a mother to her children would include an illegitimate child: And this case is referred to as authority in 2 Comyn Dig. 245, title Bastard, letter (E); and has never been overruled or questioned in any case. And Lord Eldon said, in Wilkinson v. Adam, 1 Ves. & Bea. R. 422, that he knew no law against the validity of a devise or bequest to the illegitimate children not in esse, of a particular woman, without reference to the father.
It will be seen from the cases herein before referred to, that the sternness of the rules of construction in relation to bequests to illegitimate children, has been somewhat relaxed, even in England; that it is there held to be a question of intention, and although the general rule is, that a bequest to children prima facie includes only legitimate children, yet this rule will yield to an intention, appearing from the will and surrounding circumstances, to include illegitimate children.
I come next to consider the law of Virginia on the subjects of marriage, the relations of husband and wife, parent and child, and of inheritance, as affording the only proper foundation for the policy and principles by which the courts of Virginia are to be guided in the construction of devises and bequests to children. As to the common law in relation to inheritance, we have discarded it utterly, and have adopted a system of our own, in relation to which, Judge Carr, in Davis v. Rowe, 6 Rand. 355, 364, says, " that the framers of our law looked at the common law canons of descent, to avoid and not to imitate--to pull down and not to build up. All its principles are violated; its landmarks removed; its fences broken down; its traces obliterated." And so the court held in that case, and also in Garland v. Harrison, 8 Leigh 368.
1st. As to marriage, though we require a license or banns; if the marriage ceremony is performed, the marriage is valid, though there has been neither license nor banns. We require no priest, no chapel, and no particular form or ceremony. See the act 1 Rev. Code, ch. 106, p. 393, passim, and § 8, 11; which, whilst it inflicts a penalty upon a minister marrying without a license or banns, does not avoid the marriage. Code of 1849, p. 469, 470, § 4, 5, 6, 7.
2d. By the law of Virginia, a child born before marriage of his parents, if they afterwards marry, and he is recognized by the father, is legitimate. So, the issue of marriages deemed null in law are legitimate. Code of 1849, p. 523, § 6, 7; 1 Rev. Code, p. 357, § 19. Under the first provision, the children are legitimated, though the child was born and the marriage took place before the statute was passed. Sleigh v. Strider, 5 Call 439; Rice v. Efford, 3 Hen. & Munf. 225. And a child who died before the marriage of the parents, leaving a legitimate child, is upon the marriage of the parents and recognition by the father, legitimated, so that her child will take as heir to the father. Ash v. Way, 2 Gratt. 203: And this is now engrafted into the statute. Code of 1849, supra. Under the second provision above stated, the issue of a woman by a second marriage, which took place during the lifetime of the first husband, are legitimate, and will inherit from their father. Stones v. Keeling, 5 Call 143. And the act, 1 Rev. Code, p. 400, § 18, which provides for annulling certain marriages within the prescribed degrees of relationship, provides expressly, that nothing therein contained shall be construed to render illegitimate the issue of any marriage so annulled.
3d. By the law of Virginia, bastards shall be capable of inheriting, or of transmitting inheritance on the part of their mother, in like manner as if they had been lawfully begotten of such mother. 1 Rev. Code, p. 357, § 18; Code of 1849, p. 523, § 5. Under this provision the mother and bastard brothers and sisters of a deceased person may inherit from him. Garland v. Harrison, 8 Leigh 368. So where three negroes, children of the same mother, are born slaves, and the mother and children are afterwards emancipated, on the death of one the others will inherit her estate. Hepburn v. Dundas, 13 Gratt. 219. So under a similar law in Maryland, the children of an incestuous marriage, that of a father and his daughter, the children being illegitimate by the law of Maryland, will inherit from each other. Brewer v. Blougher, 14 Peters' R. 178. Every point stated by the judge in delivering the opinion of the court in Stevenson's heirs v. Sullivant, 5 Wheat. R. 207, has been overruled in Virginia in the cases of Garland v. Harrison, and Hepburn v. Dundas; and in this last case Stevenson's heirs v. Sullivant was expressly repudiated. And the law as settled in these cases, is recognized and enforced in Heath v. White, 5 Conn. R. 228; Brown v. Dye, 2 Root's R. 280; Stover v. Boswell, 3 Dana's R. 232; Black v. Cartmell, 10 B. Monr. R. 188; Flintham v. Holder, 1 Dev. Equ. R. 345.
I say then, it is not our legislative policy to confine the inheritance to persons born in lawful wedlock. The issue of no marriage at all may in all cases inherit from and through their mother, either from their grandfather, or brothers and sisters, legitimate or illegitimate. See the opinions of the judges in the case of Garland v. Harrison, 8 Leigh 368. The issue of marriages utterly null and void in law, of incestuous marriages, of a second marriage where the first husband is alive, are legitimate, and will inherit in every respect, as will a child born in lawful wedlock, according to the English notions of lawful wedlock. He is in no legal sense filius nullius. He is the son of his father as well as of his mother. And certainly as to him and all his class, the English maxim, which is built on their law of descents, and is the foundation of their decisions upon the subject of devises to children, is utterly false. Qui ex damnato coitu nascuntur, inter liberos non computentur, is not true in Virginia certainly; whatever we may think of the superstructure which has been reared upon it.
And as to children whose parents never marry, they are not in legal contemplation, as respects their mother, the children of nobody. In Garland v. Harrison, Judge Parker, p. 372, says, " Even by the common law, the rule that a bastard is nullius filius, applied only to cases of inheritance; and he was subject to no other disability but the incapacity of inheriting and transmitting inheritance. It was the object of the act to effect a change in his legal condition; to abolish this distinction to a certain extent, between legitimate and illegitimate children; and to endow the latter with heritable blood on the part of the mother. There is no reason for thinking that the legislature meant to retain any of the incapacities ex parte materna, under which the bastard labored." --" It was the object of the law to give him a mother, and to place him in all respects upon the same footing as a lawfully begotten child, born of the same mother."
In the same case Judge Brockenbrough says, " A bastard is still nullius patris filius, but he is not in that position as to his mother. As to her he is as if he had been born in lawful wedlock; in other words, he is her legitimate son, so far as regards his capacity to inherit and transmit inheritance." In the same case, Tucker, P. after referring to the provisions of the statute legitimating the issue of void marriages, says, " But there was another and more numerous class to be provided for. They were bastards who were begotten out of wedlock, and whose fathers the law would not undertake to ascertain." " To declare these legitimate, would have been at once to provide them not a mother only, but a father. To such a length the law-makers were not prepared to go. They were therefore compelled to adopt another phraseology; to use language which, in relation to the mother and her kindred, would put bastards on the footing of legitimates, while it would leave them, as heretofore, in relation to the father, the sons of nobody. But this was the only difference they could have designed. Was the policy of the marriage institution more fatally invaded by concubinage than by bigamy? Was illicit intercourse out of wedlock more to be deprecated than incest in wedlock? "
It cannot need more to prove that the policy of our law is wholly opposed to the policy of the law of England. That in the language of Judge Carr, the framers of our law looked at the provisions and policy of the English law, " to avoid, not to imitate--to pull down, not to build up. All its principles are violated; its landmarks removed; its fences broken down; its traces obliterated." The foundation principle of the English policy is that the inheritance shall be limited to persons born within lawful wedlock-- not only wedlock, but lawful wedlock. For that they sacrifice the strongest feelings of our nature; and to carry out that policy their judges knowingly, avowedly defeat the intention of testators, and compel them, even in their graves, to continue the wrong which they had inflicted upon their children in their lifetime, by forcing them to say what they never said, to do what they never did; and that when they were attempting anxiously to say and to do what these judges admit they ought to have said and done; and what every body but a judge sees beyond a cavil or question that they have said and done. And it is as an offering to this moloch of English policy, a policy variant from that of all the world beside, and from our own, that the court is now asked to defeat our own legislative policy, by defeating sense, justice, the feelings and intentions of the persons whose feelings and intentions it is the very purpose and object of the court to carry into effect. It may be law, but if it is, it is high time it should be changed.
The question whether a devise to children will include illegitimate children, has never been decided by this court. Indeed, so far as I have been able to discover, it has never been alluded to by any judge of this court, but once. That was by Judge Carr in the case of Doe on demise of Thomason v. Andersons, 4 Leigh 118. He expresses no opinion on the question. But the question as presented in that case, was not the question involved in the case before this court. There the question was whether a devise to children not in esse would include illegitimate children; and many of the English cases are of that kind; and they hold that a devise to children not in esse, however clearly expressed, is void: and that upon grounds of public policy. But in our case the illegitimate child was in esse; was known and recognized by the mother and the testator, as her child; and the question even in England would be, not whether the devise was void on grounds of public policy; but whether the intention of the testator to include him, was expressed with sufficient clearness.
So far as I have been able to examine, no one of the states has gone as far in its legislation in favor of children born out of lawful wedlock, as Virginia. None have shown so strong a purpose to break down and discard the rules of the common law in relation to such persons. In New York and South Carolina, the rules of the common law seem to be maintained; and in other states the modifications of these rules have been greater or less. The law in North Carolina is quoted in Thompson v. McDonald, 2 Dev. & Bat. Equ. R. 463; the case so much relied upon by the appellants; and it is most apparent that the legislation of that state in favor of this class of persons falls far short of that of Virginia. The Kentucky law more nearly resembles ours; and under that law the case of Black v. Cartmill, 10 B. Monr. R. 188, has been decided, to which I beg leave to refer.
If we are to look to the principles upon which the decisions in England are based, rather than to the decisions themselves, it seems to me that the conclusions to which we will be led here, will be directly the reverse of these decisions. There, to be born in lawful wedlock and heritable blood, are primary and incident, so far as inheritance is concerned. And this principle is carried into their construction of devises. Having established that every person is a bastard who is not born in lawful wedlock, and that a bastard is filius nullius, it followed as a necessary conclusion, in carrying out their policy, that a bequest to children did not embrace bastards. As Jarman says, in the language of the rule already quoted, qui ex damnato coitu nascuntur, inter liberos non computentur.
But as we have seen, such is not the law in Virginia. To be born in lawful marriage and heritable blood are not primary and incident as to inheritance here. And here under the rule of the English decisions, very many cases which would shock the English judges beyond measure, would be valid devises and bequests to children eo nomine. Thus where the parents of children marry after their birth, and then have other children. Under a devise by the father to his children, in England, only those born after the marriage would take; for they only are legitimate: In Virginia all would take, for all are legitimate. So in the case of an incestuous marriage, a devise to children, in England, would not include the offspring of the marriage: In Virginia they would take; for they are legitimate. And the same would be the case in cases of bigamy, imbecility and lunacy. It is impossible then that the English rule, that to be born in lawful wedlock is necessary to entitle a person to take under a devise or bequest to children, can be adopted in Virginia.
Is this English rule to be applied to the bastard children of a woman in Virginia? We have seen that it is not and cannot be applied to the case of children born before the marriage of their parents, who are recognized by them. It cannot be applied to the case of children born of an incestuous marriage, not even to such a case as that of Brewer v. Blougher, 14 Peters' R. 178, which was that of a marriage of a father and his child; nor to such a case as that of Stones v. Keeling, 5 Call 143, a case of bigamy; nor to any case which can occur, where there has been a marriage between the parents, however incompetent the parties may be to contract a marriage; however illegal such marriage may be; or however its depravity may shock the moral sense of all men. And when we see that this English rule is utterly repudiated in cases indicating so much greater depravity than such a case as that before the court, is it still to be enforced in the case of a child, true of an erring, but it may be of a penitent and reformed mother? I may well ask in the language of Judge Tucker, " Is the policy of the marriage institution more fatally invaded by concubinage than by bigamy? Is illicit intercourse out of wedlock more to be deprecated than incest in wedlock?"
We have seen, I trust, that in England the rule as to devises is based upon the rule as to heritable blood. Bastard children cannot inherit even from their mother, because they have no heritable blood. They have no heritable blood, because born out of lawful wedlock. Now our law says, bastard children shall have heritable blood, as to their mother, and to all persons related to their mother by blood, just as fully as if they were born in lawful wedlock. " Bastards shall be capable of inheriting and transmitting inheritance on the part of their mother as if lawfully begotten." Code of 1849, p. 523, § 5. They may be still called bastards, but so far as their relation to their mother is concerned, they are legitimated. It was only as to the inheritance that at the common law such an one was filius nullius; and as to that by the statute he is the son of his mother. He is a bastard, for he was born out of lawful wedlock; he is a legitimate child of his mother, for he may inherit from her. In what sense are any of the issue of marriages deemed null in law legitimate, in which he is not legitimate as to his mother? He takes from her precisely as these others take from their father. In what sense is he a bastard that they are not bastards? They were born out of lawful wedlock. And by the common law definition of a bastard, they are as essentially bastards as he is. The statute does not say they shall cease to be bastards; it only says they shall be legitimate. The fact of bastardy cannot be changed by statute, except by making the marriage lawful; but it is the issue of marriages deemed null in law, or dissolved by a court, that are declared legitimate. The statute then only gives them the rights of property which a legitimate child possesses. It gives them these rights as to the father's as well as to the mother's property. The statute equally gives to a bastard child the rights of property which a legitimate child has; but it gives these rights only as to the property of the mother. And Judge Brockenbrough was well justified in saying, as he does say in Garland v. Harrison, 8 Leigh 380, " A bastard is still nullius patris filius, but he is not in that position as to his mother. As to her, he is as if he had been born in lawful wedlock; in other words, he is her legitimate son, so far as regards his capacity to inherit and transmit inheritance." And so Judge Parker, Id. 377, says, " The intention I admit was not to legitimate bastards generally; but the object was to make them quasi legitimate on the maternal side; to give the bastard a mother and maternal kindred."
Then why shall a bastard have a rule applied to him in reference to his mother or her estate, which we have seen cannot be applied to the children of marriages deemed null in law. Why shall not he take under this devise of his grandfather, to his mother's children, as he would certainly take if he had been the offspring of an incestuous marriage between his mother and his real father. Is there any principle of public policy which forbids it? If his mother had died in the lifetime of the testator, and the testator had died intestate, in that case this bastard would have taken as one of his heirs and distributees. This the statute has provided for; and he would have taken because he was the child of his mother. The testator gives the property by his will to the children of his mother; and the court whose business it is to regard and carry out the legislative policy, is asked to deprive him of it.
I would quote further from the opinions of the judges in Garland v. Harrison, to show that in their opinions, the provision of our statute in relation to bastards accords with the natural feelings of men, and is such as they would probably make if they made a will; and therefore when a will is made in accordance with its provisions, it ought to be sustained by the courts. But this note is now almost boundless; and I shall therefore conclude by a special reference to those opinions.
Macfarland & Roberts, for the appellants:
The record presents the single question, whether a bequest or a devise to children, includes bastards, when there are both legitimate and illegitimate children of the same parent. In other words, is a bastard child in law, entitled to be counted with the lawful born, in apportioning a bequest or devise to children.
The common law treats bastards as a degraded class: nor is the common law singular in this. All countries professing to be civilized, pagan as well as christian, differ as they may in the degree of their discriminations against bastards, agree in excluding them from a full participation in the privileges of children. They bear, by all codes, some badge of inferiority.
This disparagement has its origin in moral considerations, not to say the religious convictions of all people. It encourages matrimony, and discourages vice. Purity of life is upheld, by enlisting on its side the sensibilities of our nature for the reputation of our offspring. Besides, if offspring were children, however deduced, investigations would be necessary, which could be conducted only at the expense of public decency. Demoralization would ensue from the constant recurrence of questions concerning the actual lineage of persons claiming to be children. Were the law indifferent whether children were born in wedlock or out of it, common opinion would be accommodated to its laxity, and marriage be neglected, as neither enjoined, nor essential to the honor and well being of families.
Our legislation has conformed to the more indulgent spirit of the civil law. It has declared legitimate certain persons who were bastards at the common law, and relieved others, whom it refused so to honor, in part, of their disabilities. It was deemed reasonable and safe, when their parents intermarried, and recognized the antenuptial offspring as their own, that they should be redeemed from the stain of their birth, and the act therefore declared them legitimate. Such persons are made thereby children, we presume, in a full, legal sense. So again, it was considered unjust and cruel to stigmatize the issue of marriages deemed null in law, or dissolved by a court; and these too are declared legitimate, and become, as we presume, entitled to the name of children. With these changes of the common law we have now no concern, except as they serve to fix with precision the relief conceded to the remaining class--that which includes the case before us. As to this, since manifestly it had not the equity of the other two classes, the act does no more than declare that " bastards shall be capable of inheriting, and transmitting inheritance on the part of the mother, as if lawfully begotten."
Now, the exact question is, whether this provision of the statute has repealed the common law rule, which, in the case before us, would exclude the bastard from the devise. Did it do more than change the law of descents quoad the mother? Did it abolish the common law principle, which refused to apply the term children to bastards, when there were lawful born to answer to the description? Did it confer on bastards the name or title of child, so as to constitute it their appropriate legal designation? Did it cancel wholly the distinctions between the natural and lawful children of a mother, and entitle her bastards to the appellation of children, in questions respecting the construction of wills, wherein, not her estate, nor their succession to her, were involved, but rights independent of her, and beyond her control?
It seems to us to state the question is to argue it. The act does not call the bastard a child, nor enact that he shall be so regarded. No change whatever in his designation, or description, is intimated. In the cases in which child was not descriptive of him antecedently, he is unrelieved by the statute, and left subject to the reproach he inherited from his birth. It is as bastard he has conferred upon him an interest in his mother's inheritance, and bastard he remains. Between this and the other two classes mentioned in the act, a broad distinction is preserved. Those are inducted into the family as legitimate, and have the stain of their nativity obliterated; whereas these are provided for as bastards, without intimating they should be, or are relieved from the reproach of their birth. As bastards, and notwithstanding they be such, the act confers upon them a special, defined, restricted hereditable capacity.
It would be an inversion of all the rules of rational deduction, to hold the act made the bastard a child in respect to other rights, when he was not so made in the special matter in which he was relieved. We are accustomed to see it ruled, that language shall be understood as used in authoritative expositions. It is but rational to assume that phrases are used in the sense put upon them in our laws. Otherwise the vaguest conjecture, disrespectful to the public intelligence, is substituted for standards tending to precision and accuracy. Since, then, in statutes referring to children, of which our statute of descents is a striking example, the phrase is confined to lawful born, it must be so confined, when standing alone, in wills and grants.
We do not infer an intention to abandon a body of rules, or the policy in which it had its origin, from the repeal of one or more of its provisions. On the contrary, we presume an intention to stop at what was singled out and altered. Hence, the repeal of the rule which excluded a bastard from the inheritance of the mother, does not authorize the presumption of an intention to change his description, and to include him among children, from which, as a class, he was before excluded. Moreover, we must presume the legislature had in mind the whole of the disabilities to which bastards were subject; and had the intention been to carry the reform beyond what was specifically enacted, they could and would have used apt language to express their purpose. In the very act, containing the section in question, when the purpose was to relieve the bastard generally, or to change his designation, it is done by declaring him legitimate. The conclusion is therefore irresistible, that as the act stopped with investing the illegitimate qua bastard with a limited hereditary capacity, it did not design to redeem him from any other infirmity which attached to his nativity.
There is neither dependence nor connection between a devise and an heritage; and among those who would acknowledge the equal claim of bastards to share with the lawful born, in their mother's inheritance, opinions, at the least, would be divided as to admitting them to a devise. As the mother's estate was at her own disposal, it would sound capricious and unfeeling to exclude, in the accident of her intestacy, the person who, before all others, was the object of her solicitude and protection, and whom she would have remembered in her will. But a devise is a different affair. As to that, even a frail mother might consent to the justice of disposing of it, as a due regard to domestic purity would decide expedient. But if such sternness be beyond her strength, all others must agree, that the case belongs to legislative discretion, to be dealt with so as to advance the cause of good morals. It would seem like an invitation to licentiousness, to admit legitimate and illegitimate children under a common designation; and it is due to the legislature to insist, that they have not declared they shall be so admitted, either expressly or by implication. So far from it, the exact action had, imports consent to the rules not noticed and repealed.
" It is better (said Tenterden) to abide by this consequence (the defeat of the object of the statute) than to put upon it a construction not warranted by the words of the act." The King v. Barham, 8 Barn. & Cress. 99. " It is safer (said Ashhurst) to adopt what the legislature has actually said, than to suppose what they meant to say." Jones v. Smart, 1 T. R. 44. To bring a case within the statute, " it should be not only within the mischief contemplated by the statute, but also within the plain, intelligible words of the act of parliament." Holroyd, Brandling v. Barrington, 6 B. & C. 467. A casus omissus can in no case be supplied by a judgment of law, for that would be to make law. Buller, T. R. 52. Dwar. on Statutes, 9 Law Li. 708-711. The test of the largest latitude which can be claimed for a statute is, that it accomplish its avowed object or end.
The conclusion that the statute does not change the bastard's designation, nor bring him within a description antecedently inapplicable to him, is a logical sequence from the fact, that he is treated as bastard in the provision for his relief, and has his distinctive appellation perpetuated; from the consideration, that it does not follow he is entitled to take his place among the lawful born as a child, in respect to rights aliunde the mother, because admitted to share in her inheritance, since there is a substantial difference between the two cases, and the concession of the first, or of either, is consistent with the refusal of the other; from the consideration that bastards have been uniformly excluded from facts, providing simpliciter for children, and it is only reasonable to infer, that it was intended to use the phrase as comprehensively, in laws providing for children, as when used in wills and grants; from the presumption which invariably obtains, that testators and grantors, when they use language found in acts of assembly, or the judgments of the courts, employ it as therein accepted and understood; and from the consideration that the courts should follow, and not place themselves in advance of the distinct legislative will, in dealing with a class whom, considerations affecting the moral condition of society, consign to disfavor.
Upon the remaining question, we might content ourselves with a reference to 2 Jarman on Wills 94-112, where, after an elaborate examination of the cases, the conclusion is announced, that illegitimate children are not objects of a gift to children, or issue of any other degree, where there are legitimate children to take under such gift. In other words, that the two classes are not comprehended or described by the same generic term, and when it includes legitimate, it excludes illegitimate children. The cases reviewed by the learned author are distinguished for their general concurrence and high authority. See his analysis at page 112. The correspondence between the construction of the term children in wills and in the laws, is literally preserved; which is in itself rational, and was to be expected of courts in the habit of holding, that the phrases " issue of the body," and " heirs," & c. in the wills of illiterate testators, meant exactly what they imported in learned treatises. " If a mother dispose of all her lands holden in chivalry to her bastard, she is not within the 32 H. 8, c. 1, which forbids the owners to dispose of above two-thirds of such land for preferment of children; for children in any law must be intended such as are lawfully begotten." Dyer 435 a; 1 Bacon's Ab. 1 Am. from 6th London edition, p. 510. 1 Thomas' Coke, 117 (123 b). So it was held, the lawful born only were intended by children in the statute of descents, which in our statute is distinctly shown, by the special clauses therein for bastards, when their relief was intended. In no one instance in our legislation have bastards been intended, when children are mentioned; so far from it, their premeditated exclusion is apparent from the two sections in the statute of descents, declaring certain of the class to be legitimate. 2 Wms. Ex'ors 804; Sherman v. Angel, 1 Bail. Eq. R. 351; Vanderzee v. Aclom, 4 Ves. R. 771; Collins v. Hoxie, 9 Paige Ch. R. 81; 1 Roper on Legacies 79, 80; Durant v. Friend, 11 Eng. Law & Equ. R. 2; In re Overhill's trusts, 17 Eng. Law & Equ. R. 323; Thompson v. McDonald, 3 Dev. & Bat. Eq. R. 460, 480; 2 Paige C. R. 11; Coke's Litt. 8; Owen v. Bryant, 13 Eng. Law & Eq. R. 217; 3 Lomax's Digest, new edition, top paging 235, 236, marginal paging 151, 152.
The citations ascertain the antiquity and certainty of the rule.
The admission of bastards in certain cases, when there were no children besides them, and their admission where there was something supplemental to indicate they were actually intended, serve to establish the inflexibility of the general rule.
What is said in Sir F. Moor's Reports, page 10, is obviously entitled to no consideration.
ALLEN, P.
This case arises upon the sixth clause of the will of Joseph Toler deceased. By that clause he gave to his daughter Mary Bennett the land on which she then lived, and certain slaves; and the clause concludes with these words: " My will is at the death of my daughter Mary Bennett that the land and negroes given to her shall be equally divided amongst her children." At the testator's death his daughter was married to Lewis Bennett, by whom she had several legitimate children. Previous to her marriage she had an illegitimate child by another man. The will bears date the 10th of July 1818, and was admitted to probate the 15th of November 1819. At the death of the testator the legitimate children and the bastard son were all living. And the only question is, whether the illegitimate child took a vested interest, equally with the lawful children of Mary Bennett under this clause of their grandfather's will. It is said in 2 Jarman on Wills (2 Amer. edi. by J. C. Perkins) 94, " to be an established rule, that a gift to children, sons, daughters or issue, imports prima facie legitimate children or issue, excluding those who are illegitimate, agreeable to the rule, ‘ Qui ex damnato coitu nascuntur, inter liberos non computentur. " ’ We have thus the rule that such a gift imports, not absolutely but prima facie legitimate children; and we have the ground on which it rests in the Latin maxim. The bastard is not computed amongst children. " We term them all by the name of bastards that be born out of lawful marriage." 1 Thos. Coke 115. " A bastard is in law quasi nullius filius, because he cannot be heir to any." Litt. § 188. If possessed of personal estate, he dies intestate and without wife or children, the estate belonged to the crown; if of real estate, it escheated. For he was supposed to have no relations, no heirs or next of kin, except those arising from his own contract of marriage, his wife and children or descendants. In this state of the law, when the courts came to determine what was the import of the words children, & c., of necessity the word was construed to mean such as the law recognized as children. It was the obvious course to hold, that where a testator was in the act of making a disposition of his estate, which the law permitted, and used a word which by law comprehended one class, he could not be supposed to intend a party who the law declared did not belong to the class named; to intend a person who in law was quasi nullius filius, without relations, heirs or next of kin, except his own wife and progeny. There was still another reason which would preclude the court from giving such an enlarged meaning to the words children, & c. when applied to the children or issue of a man. How was the fact of paternity to be ascertained except by going into an enquiry which the court could scarcely enter into upon the construction of a will. The birth of a child during a lawful marriage is prima facie evidence of its legitimacy. Formerly so strict was the rule, that if the husband be within the four seas, no proof was admitted to prove the child a bastard, unless in case of apparent impossibility of procreation; though the strictness of this rule has long since been relaxed, and the presumption of legitimacy arising from birth in wedlock, may be rebutted by circumstances inducing a contrary presumption, as proof of non-access, & c. & c. Thomas' Coke 109, n. B. But the presumption exists, until rebutted; and therefore, by the use of the words children, & c. in a devise or bequest, the testator must be understood to mean those who are by law presumed to be his children. But no such presumption can arise in respect to his illegitimate children. They still continue nullius filius as to the father. There must be some recognition; something to show that in the particular instance, he did intend to describe the illegitimate child; and this intention must be arrived at by some description which will serve to designate the individual, and not by naming a class which in law is not presumed to comprehend one of his condition. In the construction of wills in reference to this as to other subjects, the intention of the testator controls. The law contains no restriction upon the power of a testator to devise or bequeath to an illegitimate child. If it appears that the testator intended to make such a devise, effect must be given to the disposition.
It is said by Jarman, p. 94, " that illegitimate children, born at the time of making the will, may be the objects of a devise or bequest, by any description which will identify them. Hence, in the case of a gift to the natural child of a man, or of a woman, or of one by the other, it is simply necessary to prove that the objects in question had, at the date of the will, acquired the reputation of being such children." In the same connection, this author reviews the most prominent cases which have been decided on this question; and it is observable that in most if not all the cases cited and commented on by him (except the case of Mortimer v. West, 2 Cond. Eng. Ch. R. 439, 3 Russ. R. 370), were devises or bequests to the illegitimate children of the father, or of a woman by a certain individual. The case last mentioned seems to have been the first in which it was held that a devise to the children of a woman without reference to the father, was bad; and the only subsequent case to which we have been referred of like import, is Dovex v. Alexander, 24 Eng. Ch. R. 275 (2 Hare 275), which arose on the construction of a deed.
But though one of the incidents, the uncertainty in regard to paternity does not exist in case of a devise to the children of a woman, without reference to the father; yet the decision was the logical sequence of the first proposition, that by law the natural child is filius nullius, has no relation, and cannot inherit from or transmit inheritance to the mother. In legal language, he is not comprehended in the class of her children; and therefore, as in the case of the putative father, the court could not say he was comprehended in that class by the use of the term. Whether upon a question of intention, this was not straining the rule to an unreasonable extent, is another question. The principle is the same in both cases. In contemplation of law they were not children; and the use of the word children was not sufficient to embrace them.
Some of the cases, as Wilkinson v. Adam, 1 Ves. & Bea. R. 422; Harris v. Lloyd, 11 Cond. Eng. Ch. R. 174, decide, that the face of the will alone can be looked to for the purpose of ascertaining the intention to apply to natural children. But this rule has been innovated upon by other cases; as Beachcroft v. Beachcroft, 1 Mad. R. 430; Frazer v. Piggott, 1 Young. R. 354. But none of the cases interfere with the general rule, that illegitimate children may take if clearly designated by a description which identifies them.
Coke, as we have seen, terms all by the name of bastards that be born out of lawful marriage. Subsequent marriage and recognition do not legitimate; children of marriages within the prohibited degrees; of marriages not properly solemnized in proper place or by proper license or banns; of a marriage where there was a former marriage, or where the parties were imbecile--are bastards; and therefore inter liberos non computentur. Shelford Marriage & Divorce, ch. 3, p. 154 to 157, 171-3, 9, 183, 5, 6, 190; Roper Husband & Wife 486. They have no heritable blood, and are not comprehended in the class of children when that word is used in a will, where there are or by possibility may be legitimate children to answer to the description. As where legitimate children were or might have been entitled under a bequest, this possibility excludes the illegitimate. Because children in its primary sense, we have seen, if unexplained, imports legitimate children only.
In Virginia a child born before marriage, born a bastard, if the parents afterwards marry, and he is recognized by the father, is legitimate. So the issue of marriages deemed null in law are legitimate; Code, p. 523; or of a woman by a second marriage which took place during the lifetime of the first husband. It would not be seriously maintained that under this legislation, persons in this condition would not in this state be comprehended by the word children. In England, as we have seen, they would not be, if there were legitimate children or the possibility of there being such children. Yet both in England and Virginia the intention of the testator controls in the construction of wills. And guided by this rule, the courts there hold such children not to be intended--here, that they are. And both are correct, for where words are used which in law have received a legal signification, the party is presumed to use them in that sense, unless the contrary appears. In England they are not computed as children, for not being born in lawful wedlock, the law does not presume them prima facie to be children. In Virginia, being recognized after marriage, or being the issue of a marriage, though unlawful, the law prima facie presumes them to be children; declares them to be legitimate, and therefore necessarily computed as children whenever the word is used. To include them in England, there must be something amounting to an express designatio personarum applicable to them; in Virginia, to exclude them from the class in which the law here comprehends them, there must be something to show clearly that such was the intention.
This brings us to the enquiry as to the condition of children in Virginia not born in wedlock or recognized by the father after marriage. On the paternal side their condition is unchanged. As to him the bastard is still quasi nullius filius; the law indulges no presumption as to his paternity. If acknowledged by the father, that is a fact to be proved, not a presumption of law. A devise or bequest to him by his reputed or acquired name, is good, whether made by his father or a stranger; a bequest to children, if there be legitimate children, does not comprehend him, because there is no legal presumption that he is a child.
But how is it ex parte materna? as to her, does he, as in England, remain quasi nullius filius? without relation, without next of kin, except his own wife and progeny? Or, does the law recognize him as her child; embrace him in the description of her children? The solution of these questions is to be found in our statute of descents, as construed by this court.
The Code, ch. 123, § 5, p. 522; 1st Rev. Code 355, § 2, 18, provides that where any person having title to real estate of inheritance shall die intestate as to such estate, it shall descend and pass in parcenary to such of his kindred, male and female, as are not aliens, in the following course: 1, to his children and their descendants. And further: " Bastards shall be capable of inheriting and transmitting inheritance on the part of their mother, as if lawfully begotten." The framers of this act we are told by Carr, judge, in Davis v. Rowe, 6 Rand. 364, " looked at the common law canons of descent to avoid, not to imitate; to pull down, not to build up. All its principles are violated; its landmarks removed, its fences broken down, its traces obliterated." Its basis (says Judge Parker in Garland v. Harrison, 8 Leigh 368, referring for his positions to the opinions of Judges Tucker and Roane in Stones v. Keeling, 5 Call 143, 147, 148, " was the statute of distributions and the civil law. It is founded on the great principles of justice. Its object was to make such a will for the intestate as he would himself probably make; and its obvious policy was to follow the lead of the natural affections, and to consider as most worthy, the claims of those who stand nearest to the affections of the last occupant. It ought therefore at all times to be liberally construed in favor of those to whom the intestate himself, had he made a will, might be supposed to be most favorable, without reference to common law rules or feudal disabilities."
Under the influence of these principles, the judges proceeded to the construction of the provision of the act of descents, declaring that bastards shall be capable of inheriting and transmitting inheritance on the part of their mother, as if lawfully begotten: and the result can be best arrived at by quoting their own expressions. After enumerating his common law disabilities, Judge Parker says: " It was the object of the law to give the bastard a mother, and to place him in all respects on the same footing as a lawfully begotten child, born of the same mother." Again, after commenting on § 6, Code, ch. 123, and § 19, 1 Rev. Code, p. 357, declaring that a child born before marriage and the parents intermarry, if recognized by the father, shall be deemed legitimate, he says, " I have no doubt that it was intended by the section respecting bastards, to bestow upon illegitimate children the same capacities of inheriting from or through the mother, and passing inheritances to or through her, as they possess under the other section in respect to both parents; that is to say, to make them in all respects the legitimate children of their mother." And again: " These relaxations of the severity of the common law rest upon the principle that the relation of parent and child, which exists in this unhappy case, in all its binding and native force, ought to produce the ordinary consequences of consanguinity; and I am convinced that it was the intention of the legislature of Virginia to adopt the most liberal rule in respect to an inheritance in case of bastardy, that was consistent with the certain ascertainment of the parents." So Judge Brockenbrough, in the same case, says, " A bastard may inherit on the part of his mother in like manner as if he were her legitimate son. He may therefore inherit from his mother or from his maternal grandparents in the direct line," & c. And again: " He cannot have whole brothers, but every uterine brother, whether legitimate or spurious, is his half brother." And President Tucker, in the same case, remarks, " To declare them legitimate, would have been at once to provide, not a mother only, but a father. To such a length the lawmakers were not prepared to go. They were compelled to adopt another phraseology--to use language which, in relation to the mother and her kindred, would put bastards on the footing of legitimates, while it would leave them, as heretofore, in relation to the father, the sons of nobody. But this was the only difference they could have designed." And in conformity with these views, reiterated in every variety of form, it was held in that case, overruling entirely Stevenson's heirs v. Sullivant, 5 Wheat. R. 207, that the estate of the bastard dying intestate, passed to his mother and to his two uterine bastard brothers.
Comment on these opinions is almost unnecessary. At the common law he had no mother; this statute gives him one. He is placed in all respects upon the same footing as a lawfully begotten child born of the same mother. He is therefore no longer, as to her, quasi filius nullius, but her child, inheriting from and through her, transmitting inheritance to and through her. If seized of property, she dies intestate, the act says it shall descend and pass in parcenary to such of her kindred, & c. in the following course--first, to the children and their descendants. If she dies leaving illegitimate and legitimate children, does not the word children comprehend all in the same class? Would it be argued that the illegitimate child would not take with the legitimate children? And when, as we have seen from the extracts aforesaid, this law, as expounded, includes all her children, legitimate and illegitimate, in the same class as her children, so ascertained by birth, not by legal presumption, and for every purpose, as if all were lawfully begotten, what warrant is there for the pretension that the same general term, when used in a will, is to be construed as excepting them for any purpose? If the term children is to be construed in regard to both parents, as including the child recognized, or to be deemed legitimate, being born in wedlock, though illegal because the testator, by the use of the general phrase, is to be, must be held to use it in the sense of the law, there being nothing to show he uses it in another sense. Must we not apply the same rule when the word is used in reference to the illegitimate child of the female? The law declares the estate shall pass and descend to her children; being a child, he is heir, joint heir with every other child born in or out of wedlock; comprehended in the class, not by any personal designation, but by the general word children, comprising all.
In Edwards v. Freeman, 2 P. Wms. R. 435, 441, Lord Raymond says, " The statute of distributions makes such a will for the intestate, as a father, free from the partiality of affections, would himself make; and this I call a parliamentary will." So in Garland v. Harrison, Parker, judge, says, " The intention was to make such a will for the intestate as, if he had died testate, he would have been most likely to have made for himself." And Tucker, president, says, in the same case, " Our law of descents was formed in no small degree upon the human affections; the legislature very justly conceiving that the object of a law of descents was to supply the want of a will, and that it should therefore conform in every case, as nearly as might be, to the probable current of those affections which would have given direction to the provisions of such will. Under the influence of these opinions, they legislated in relation to bastards."
As a legislative will, we have seen that the word children includes the legitimate and illegitimate children of a woman in the same class, placing all the issue of the woman upon the same footing as if born in wedlock. When the testator comes to write his own will, and uses the same words, which in the legislative will comprehends all, comprehends them because of the supposed conformity to the probable current of those affections which would have given direction to the provisions of a will, if he had written it, we are asked to say he does not intend to comprehend all, but to exclude the illegitimate child. The law declares the words in the legislative will includes; the court in expounding the law is asked to say the same words used by the testator in reference to the same matter, excludes them. By the statutory will they are her children; by the written will they continue, as to her, quasi nullius filius, and subject to the common law disabilities of bastards. And this construction is invoked, notwithstanding we are informed by the judges, in the case referred to, that the statute should at all times be liberally construed in favor of those to whom the intestate himself, had he made a will, might be supposed to be most favorable, without regard to common law rules or feudal disabilities. In Sleigh v. Strider, 5 Call 439, it was decided that a child born out of wedlock in the year 1774, was legitimated by the subsequent marriage and acknowledgment of parents in 1776, which was before the passage of the law of 1785, which took effect January 1, 1787. Stones v. Keeling, 5 Call 143, decided, that the issue of a woman by a second marriage, which took place during the lifetime of her first husband, are legitimate after the death of their father. These cases, and the case of Garland v. Harrison, all show, that this law has invariably been liberally construed by this court in favor of the class intended to be relieved from common law disabilities.
If we depart from the rule of construction as laid down by the English cases, that by the use of a phrase which has received a legal signification as comprehending a particular class, the testator must have intended to use it in the same sense, when treating of the same subject matter, we are at sea without compass or rudder. In the place of a clear, definite rule, the discretion of the judge is to be substituted. The enquiry is, who are the beneficiaries intended by the testator? He has used a phrase referring to a class, and the question is, who are comprehended in it? The English courts say, in view of their law, he must have intended legitimate children, because the illegitimate children are not by law treated as children, and because where the children of a man are spoken of, there is no presumption of paternity except in the case of children born in wedlock. If it is attempted to bring in illegitimate children, it must be done by proof, and the hazard is encountered of giving his estate to aliens to his blood; to persons never acknowledged by him as children. And as none are legitimate who were not born in lawful wedlock, the children of marriages deemed void, & c. cannot be distinguished from such as are born in a state of concubinage; it is in law concubinage, and therefore no presumption can arise in favor of the children. And the same principle, by a too rigid adherence to the rule, has been applied to the children of a woman; giving, as to her, more weight to a fiction of law than to the palpable fact that the illegitimate child is her offspring.
But if there be no legitimate children or possibility of legitimate children, as in case of a devise to the children of a man deceased, but there were illegitimate children, they must have been intended, as none other answer the description. In Virginia, guided by the same rule of carrying out the intention, the children of a man born in a state of concubinage, would not be considered as falling within the class of children so as to take by such general description. As to the father, the bastard remains nullius filius, and there is no legal presumption as to his paternity. But I take it to be too clear a proposition to require argument to prove it, that in Virginia a child born before marriage, but afterwards recognized by the father who intermarries with the mother, or born of a marriage null in law, but by statute deemed legitimate, would in a devise or bequest to children be held to be included with other legitimate children, unless expressly excluded, in conformity with the principle of the English rule; because by the recognition or the birth in wedlock, the law presumes them to be children: though in England it would be otherwise. And so adhering to the principle of the rule, when the law makes the bastard child of a woman her child; endows him with every attribute of a child born in wedlock; includes him in the very class designated as children, to whom her estate is to pass in the event of her dying intestate; a testator speaking of her children, the words must be construed to include in the class all who in law are her children. Instead of departing from, such construction adheres to and carries out the rule. The contrary construction substitutes unlicensed discretion, and involves the courts in a labyrinth without a clew to direct them.
It has been suggested, that this is a will not of the mother, but of the grandfather; and we cannot presume he intended to provide for the child of his daughter's shame. The law presumes otherwise; for if his daughter had been dead, and he had then died intestate, in the statutory will made for him, this child would, equally with the legitimate children have been provided for; and in the language of the judge in Black v. Cartmell, 10 B. Monr. R. 188, it might be furthermore said, " that it cannot be assumed, or even presumed, that if she had an illegitimate son when the will was made, her father would, on account of her fault, have excluded his unoffending grandchild from all participation in his estate, and left him a vagabond dependent upon the charity of others for sustenance and education." Perhaps, indeed, considering that no matter by whom begot, the relationship to the grandfather was the same, and his necessities the greater, such presumption that he did not intend to include (or rather that he intended to exclude, for the law includes), would be contrary to the fact. And at best, it would be substituting vague conjecture for a certain rule.
The argument against the policy of such construction as affecting female purity and public morality (springing perhaps originally out of the maxims of a fulfilled dispensation, which visited upon the children, to the third and fourth generation, the sins of the parent), may be met by the enquiries of Tucker, president, in Garland v. Harrison, " was the policy of the marriage institution more fatally invaded by concubinage than by bigamy? Was illicit intercourse out of wedlock more to be deprecated than incest in wedlock?" Yet the fruits of such intercourse are legitimate. And in the Lessee of Brewer v. Blougher, 14 Peters' R. 178, which arose under a law similar in substance to ours as to bastards, the court decided that the issue of an incestuous marriage between father and daughter, though illegitimate, were embraced by the statute. Chief Justice Taney says, " the right to inherit would appear to have been given upon the principle, that it would be unjust to punish the offspring for the crime of the parents; and their right therefore is not made to depend upon the degree of guilt of which they were the offspring." But in the language of Judge Brockenbrough in Garland v. Harrison, this argument as to public policy " is a consideration which would be more appropriately addressed to a legislative body than a judicial tribunal." And there I leave it. It is for that body to give the law; for this to declare it.
The rule of the English courts had no reference to questions of public policy. It rested upon the intention of the testator, and the mode of arriving at it. The right of an illegitimate child to take, if the testator so intended, was never questioned; and this under circumstances more likely to affect public morals than a construction which includes a bastard amongst the children of his mother under our statute. Jarman, p. 112, deduces these rules, amongst others from the cases: That illegitimate children may take by any name or description which they have acquired by reputation at the time of making the will: That legitimate and illegitimate children may take concurrently under a designatio personarum applicable to both: That a gift to an illegitimate child en ventre sa mere without reference to the father, is indisputably good: And that it is questionable whether, at this day, a gift to the future illegitimate child of a woman would be sustained on the ground of public morals; though there are dicta which would seem to lead to a different conclusion.
These conclusions show the length to which the English courts have gone in giving effect to the dispositions of testators when the intention is clear; though such dispositions may not commend themselves as calculated to preserve purity in the sexual relations.
I think the illegitimate child in this case was by the law of Virginia within the class comprehended by the word children of a woman: that by the use of the word here the testator must be intended to have referred to and included him with the other children of his daughter, whether born in wedlock or not, and that he takes equally with them, there being nothing in the case to show an intention to exclude him.
I am for affirming the decree with damages and costs.
DANIEL, LEE and ROBERTSON, Js. concurred in the opinion of ALLEN, P.
MONCURE, J. dissented.
DECREE AFFIRMED.