bama, *and Mississippi, bastards are placed generally under the disabilities of the English common law; though, in several of these states, as we noticed in a former volume, bastards may be rendered legitimate by the subsequent marriage of their parents. In the states of Vermont, Rhode Island, Virginia, Kentucky, Ohio, Indiana, and Missouri, bastards can inherit from, and transmit to, their mothers, real and personal estates.c The principle prevails, also, in Connecticut, Illinois, Maryland, North Carolina, Tennessee, and Louisiana, with some modifications. Thus, it has been adjudged in Connecticut, that illegitimates are to be deemed children within the purview of the statute of distributions, and, consequently, that they can take their share of the mother's real and personal estate, equally as if they were legitimate. It is not said, in the Con

■ Vol. ii. 209.

b In Virginia, Kentucky, and Missouri, by statute, bastards can take real estate by descent from or through the mother, and transmit the same to their line as descendants, in like manner as if they were legitimates. But the statute gives them no capacity to take an inheritance from, or transmit one to, their collateral kindred. In Georgia, illegitimate children may inherit from their mother and from one another. In Vermont, by statute, (Revised Statutes of Vermont, 1839, p. 292,) bastards are capable of inheriting and transmitting inheritances on the part of the mother; and under this statute it is held, that one illegitimate child can inherit to another illegitimate child by the same mother equally as if it were a legitimate child. Town of Burlington v. Fosby, 6 Vermont Rep. 83.

The Indiana Statute does not say that the mother can inherit from her bastard son, it only says he inherits from her as a legitimate child, and that if the putative father marries the mother and acknowledges himself to be father of the child, it is then to be deemed legitimate. Revised Statutes of Indiana, 1838, p. 238.

d Heath v. White, 5 Conn. Rep. 228. This decision is not relished in the case of Cooley v. Dewey, 4 Pick. Rep. 493, because it extends the word children, in the statute of distributions, beyond its settled meaning in the English statute, and in those American statutes which are a transcript of that part of it. In respect to wills, the rule of construction is, that prima facie illegitimate children do not take under the description of children; and there must be evidence to be collected from the will itself, or extrinsically, to show affirmatively, that the testator intended that his illegitimate children

necticut case, that bastards can transmit an estate by descent beyond the permission in the English law; and in the absence of any positive provision in the case, it is to be presumed they cannot. They can, however, be heirs to each other through the mother jure representationis. In Maryland, by the act of 1825, ch. 156, illegitimate children, and their issue, are declared capable in law to take and inherit real and personal estate from their mother, and from each other, and from the descendants of each other, in like manner as if born in lawful wedlock. In North Carolina, bastards inherit to their mothers, if there be no legitimate child; and bastards brothers and sisters inherit to each other, if one of them dies intestate and without issue. The mother is excluded. The rule in Illinois and Tennessee goes as far as that in North Carolina in respect to the capacity of the bastard to inherit to their mother." In #415 Louisiana, the recognition of the rights of natural or illegitimate children, is (with the exception of those whose father is unknown, or the offspring of adulterous

should take, or they will not be included. Wilkinson v. Adams, 1 Ves. Bea. 422. Swaine v. Kennerley, ibid. 469. Beachcroft v. Beachcroft, 1 Madd. Rep. 234, Phil. edit. Sherman v. Angell, 1 Bailey's Eq. Rep. 351. Collins v. Hoxie, 9 Paige Rep. 88. In Bagley v. Mollard, 1 Russell & Mylne, 581, the Master of the Rolls declared, that illegitimate children cannot take under the general description in a will of children, provided there be legitimate children to be included. This was laying down the rule with unqualified rigour and going beyond the more just and liberal construction declared by some of the common law judges, in the case of Wilkinson r. Adams, and by the Vice-Chancellor, in Beachcroft v. Beachcroft.

• Brown v. Dye, 2 Root's Rep. 280.

See Brewer v. Blougher, 14 Peters, 178, on the construction of the Maryland statute.

• Flintham v. Holder, 1 Bad. & Dev. Equity Cases, 345, statute of 1799. North Carolina Revised Statutes, 1837, p. 237.

Bastards are enabled in North Carolina, to inherit the real estate whereof the putative father might die seised, provided he petitioned a court of justice for the purpose, and showed that he had intermarried with the mother, or that she was dead and obtained an order for the legitimation of the child. 1 North Carolina Revised Statutes, 1837, p. 92.

or incestnous connexions,) carried beyond any other example in the United States. If they have been duly acknowledged, they inherit from the mother, if she has no lawful issue; they inherit from the father likewise, if he leaves no wife, or lawful heir. The father and mother inherit equally from their illegitimate offspring; and in default of parents, and ascendants and descendants, the estate goes to the natural brothers and sisters of the bastard, and to their descendants.

The laws of different nations have been as various and as changeable as those in the United States, on this painful but interesting subject. By the Roman law, as declared by Justinian, the mother succeeded to the estate of her illegitimate children; and those children could take by descent from her; and they also took a certain portion of their father's estate. There was a distinction between natural children who were the offspring of a concubine, and the spurious brood of a common prostitute; and while the law granted to the latter the necessaries of life only, the former were entitled to succeed to a sixth part of the inheritance of the father." The French law, before the revolution, was in many parts of the kingdom, as austere as that of the English common law; and the bastard could neither take nor transmit by inheritance, except to his own lawful children. In June, 1793, in the midst of a total

Civil Code of Louisiana, art. 912-917. Laclotte's Heirs v. Labarre, 11 Louis. Rep. 179.

b Inst. 3. 3. 7. Ibid. 3, 4. 3. Code, 6. 57. 6. Novel, 18. 5. 5. Gibbon's Hist., vol. viii. 67, 68.

• Domat, vol. i. tit. Successions, part 2, sec. 12. Ibid. b. 1, tit. 1, sec. 8. Ibid. b. 2, tit. 2, sec. 11. D'Aguesscau, Dissert. sur les Bastards, Œuvres, tom. vii. 381. Pothier, Traité des Successions, art. 3, sec. 3. This was not, however, the universal rule, for in some of the provinces of France, they followed the more indulgent provisions of the Roman law. Repertoire de Jurisprudence, par Merlin, tit. Bastards. Bastards, as we have already seen, (see supra, vol. ii. 208,) were legitimated, under the civil law, by the subsequent marriage of the parents; and this was the ancient law of the Duchy of Normandy. Grand Costumier, c. 27.

*revolution in government, morals, and law, bastards, duly recognised, were admitted to all the rights of lawful children. But the Napoleon code checked this extreme innovation, and natural children were declared not to be heirs strictly speaking; but they were admitted, when duly acknowledged, to succeed to the entire estate of both their parents who died without lawful heirs, and to ratable portions of the estate, even if there were such heirs. If the child dies without issue, his estate devolves to the father and mother who have acknowledged him. The French law, in imitation of the Roman, distinguishes between two classes of bastards; and while it allows to the child of an adulterous and incestuous intercourse, only a bare subsistence, the other, and more fortunate class of illegitimates, are entitled to the succession, to the qualified extent which is stated. The new dispositions in the code are so imperfect, that M. Toullier says they have led to a great many controversies and jarring decisions in tribunals.

In Holland, bastards inherit from the mother; and they can transmit by descent to their own children, and, in default of them, to the next of kin on the mother's side.

▪ Code Napoleon, art. 723. 756, 757, 758. 765.

Toullier's Droit Civil Français, tom. iv. sec. 248-270. He gives detail of some of those controverted points.

• Institutes of the Laws of Holland, by Vander Linden, translated by Henry, 165. Commentaries of Van Leeuwen, 34. 287, edit. Lond. 1820. It is stated by Van Leeuwen, that, anciently, illegitimate children were reputed, in Holland and Germany, to be so disgraced as to be excluded from all honourable office, and even to be incompetent witnesses against persons of legitimate birth. Heineccius wrote a dissertation entitled, De Levis Note Macula, and he has treated the subject with his usual exuberance of learning. He agrees with Thomasius, in opposition to Gothofredus, that natural children were not branded, at Rome, even with light disgrace, nec levi nota insigniti; but he admits that the rule is different in Germany. They are excluded from the inheritance, and bear the mark of disgrace; semper levi nota adspersi fuisse videntur. Heineccius then enters into an eulogium on this branch of Germanic jurisprudence, and, with the zeal of a patriot, unVOL. IV.

33

*When the statute law of New-York was recently revised, and the law of succession on this point altered, it might have been as well to have rendered illegitimate children capable of succeeding to the estate of the mother in default of lawful issue. The alteration only goes to enable the mother, and her relations, to succeed to the child's intestate estate. If a discrimination was to be made, and the right of descent granted to one party only, then surely the provision should have been directly the reverse, on the plain principle, that the child is innocent, and the mother guilty of the disgrace attached to its birth. The parents are chargeable with the disabilities and discredit which they communicate to their offspring; and the doctrine has extensively prevailed, that the law ought not to confer upon such parents, by its active assistance, the benefits of their child's estate. The claim for the interposition of the law in favour of the mother and her kindred, and especially in favour of the putative father, is held, by high authority, to be destitute of any foundation in public policy."

IV. There is generally, in the statute laws of the several states, a provision relative to real and personal

estates, similar to that which exists in the English *418 statute of distribution, *concerning an advancement to a child. If any child of the intestate has

dertakes to show, even from Tacitus downwards, that no nation surpassed the Germans in the value which they set upon the virtue of chastity. Heineccii Opera, tom. ii. Exercitatio 7, sec. 32. 34. In 1771, the King of Denmark declared, by ordinance, that illegitimate birth should no longer be considered a dishonour, and bastards were placed on an equality with children born in wedlock, in regard to ecclesiastical rights, and employments in the church. Dodsley's Ann. Reg. for 1771, p. 125.

See the remarks of Ch. J. Parker, in 4 Pick. Rep. 95. Lord C. B. Gilbert places the exclusion of bastards from the feudal succession on high and lofty principles of honour and morality. "The lords would not be served by any persons that had that stain on their legitimation, nor suffer such immoralities in their several clans." Gilbert on Tenures, 17.