both sexes. The commonly accepted definition of the word child, with reference to descent, is, a son or daughter; a male or female descendant in the first degree.' 4. Children. - The word children, in its primary and precise sense, stands for immediate offspring of both sexes.* In statutes of descent and distribution the words child and children do not include grandchildren or other descendants more remote than the first degree of the person named as ancestor. But the words may be interpreted as including grandchildren, representatives of a deceased child, where it can fairly be seen from the context that such was the intention of the testator as exhibited in his will. In many cases the rule is laid down by the courts that grandchildren can be included under the term children only (1) when the instrument in which it is used would be inoperative, unless the term were held to include grandchildren, there being no persons in existence to answer to the definition of it in a limited sense, and (2) when the maker of the instrument has clearly shown by other words that he did not intend to use the term in its proper sense.' In the term children, illegitimates are included, where it is used in designating children generally. Strictly, the term means legitimate offspring. The particular words used are often significant; as, where a testator devises property to a daughter and, at her death, to "all the children of her body," the word children will include the illegitimate children, if there be such." Adopted children will come within the term children when there are no others that answer the description; but in some cases the contrary is held," depending, in most instances, upon the purpose for which the term is used." 3 104 Mich. 11 (1895). 457 Hun (N. Y.) 396 (1890). 5 39 Cal. 529 (1870). 6104 Mich. 11 (1895); 10 Ves. (Eng.) 196 (1804); 148 Mass. 203 (1889). 7 Am. & Eng. Encyc. Law (2d Ed.), Vol. 5, p. 1,088, citing 10 Ves. (Eng.) 196 (1804). 3 Pick. (Mass.) 363 (1825), 133 Pa. 260 (1890), and other cases. 8 30 Ch. Div. (Eng.) 112 (1885); 1 Ves. & B. (Eng.) 422 (1812). 9113 N. C. 301 (1893). 10 73 Me. 27 (1881); 115 Mass. 262 (1874). 1154 Pa. 304 (1867). 12 110 N. Y. 216 (1888). Used with reference to relationship merely, the terms child and children include adults, but when used with reference to age, they are confined to minors. The usual acceptance of the term child in this connection is, a young person of either sex; hence, one who exhibits the character of a very young person. Consequently, the term generally means a young person as contradistinguished from one of age sufficient to be supposed to have settled habits and fixed discretion.' 13 5. Infants. - An infant is a person under the age of twenty-one years." In its legal signification the term embraces any person who has not yet arrived at the age prescribed by law as full age. At common law, no person acquires fully all his political and civil rights until he is twenty-one years of age, at which time his infancy terminates, the period of emancipation being the same in both sexes. In the United States, the common-law rule prevails, except in jurisdictions where it has been altered by statute; in a number of states females reach their majority at the age of eighteen years." The exact time when an infant is reputed to be twentyone years old, or of full age, is the first instant of the last day of the twenty-first year next before the anniversary of his birth, because, according to the civil computation of time, which differs from the natural computation, the last day having commenced, it is considered as ended." If, for example, a person were born on January 1, 1902, even a few minutes before 12 o'clock of the night of that day, he would be of full age at the first instant of the thirty-first day of December, 1922, although nearly forty-eight hours before he had actually attained the full age of twenty-one years, according to years, days, hours, and minutes, because there is, in this case, no fraction of a day." Accordingly, a man is entitled to vote on the day preceding the twenty-first 13 18 Tex. App. 53 (1885). 14 Co. Litt. 171. 152 Kent's Comm. 233; 49 Ill. 53 (1868). 16 Bouv. Law Dict., citing Savigny, Dr. anniversary of his birth." The age at which infants may marry is a different question and is treated under the appropriate title." In England and the United States, for the purpose of property, infants are deemed in being from the time of conception. Thus, a child unborn is held to be included in a bequest or devise to children or grandchildren, or to persons "living at the death" of the testator."° For certain purposes, especially for all beneficial purposes, an unborn child is to be considered as born. Its civil rights are equally respected at every period of gestation. Besides being capable of taking under a will, and by descent, it may be appointed executor, may have a guardian assigned to it," and may have an injunction obtained for it to stay waste." DUTIES AND RIGHTS 6. The reciprocal duties created by the relation of parent and child exist generally only where the child is still an infant, that is, has not arrived at the age when it is legally freed from the parent's control. But, even before the child has reached that age, it may be freed from its obligation to a certain extent by the voluntary act of the parent; and even after majority, the child may remain with its parents under the same relation as before. The law will not presume any change in that relation from the mere fact that the child is twenty-one, and whether emancipation have taken place or not depends entirely upon the intention of the parties, as shown by their actions." 183 Harr. (Del.) 557 (1840). 19 See The Law of Husband and Wife: Competency of Parties. 20 Am. & Eng. Encyc. Law (2d Ed.), Vol. 16, p. 259, citing 2 H. Bla. (Eng.) 399 (1795); 3 Ch. Div. (Eng.) 773 (1876); 15 Pick. (Mass.) 255 (1834). 23 21 See The Law of Executors and Adminis trators, and The Law of Guardian and Ward. 22 Bouv. Law Dict., citing 3 Johns. Cas. (N. Y.) 18 (1817), 5 S. & R. (Pa.) 38 (1819), Bing. Inf., c. 7, and other authorities. 23 16 Pa. 489 (1851). DUTIES OF PARENTS 7. The principal duties that the parent owes the child are those of protection, maintenance, and education. 8. Protection. It is the duty of the parent to protect his children, and this duty has been so closely followed that very little or no judicial discussion has been required in modern times on this subject. It is a natural duty, rather permitted than enjoined by any municipal laws, nature in this respect working so strongly as to need rather a check than a spur. A parent may by our laws maintain and uphold his children in their lawsuits without being guilty of the legal crime of maintaining quarrels. A parent may also justify an assault and battery in defense of the persons of his children." 9. Maintenance. - A parent is bound to maintain his children, that is, to supply them with sufficient food and clothing and a proper lodging." He must maintain them in a manner in keeping with his wealth and social position;" and while he is not compelled to provide them with luxuries, he will not be permitted to afford them only a bare subsistence." The duty of a parent to maintain his child is absolute, and an infant who lives with its parent, who is amply able to maintain it, is not liable to the parent for maintenance even when it expressly agrees to pay therefor.28 The parent is under the natural obligation to furnish his child with necessary and suitable wearing apparel and food, if he be of sufficient ability, and, if he neglect his duty, any one can supply the child." The law in such case will imply a promise upon the part of the father to pay for the necessaries, and he will not be heard to allege the contrary; but, if he have not been derelict in his duty, no one has the right to charge the father with supplies for the child, that he or the 241 Black. Comm. p. 450. 25 14 Ill. App. 277 (1883). 262 Kent's Comm. 189. 271 Black. Comm. 447. child may judge that the child needs, without authority from the parent so to do." This duty to maintain devolves in the first instance upon the father who is the head of the family, and during his life he will be compelled to support the children of the marriage, even though he be imprisoned for crime, and, also, in some cases, where he is divorced from his wife and she has the custody of the children." A father is compelled to support his child even when the child has an estate of its own, but if the child have a considerable estate and the parents be comparatively poor, the court will permit part of the income of the child's estate to be used in fitting it for a higher position in the community, by means of a better education, etc., than its parents in their more limited condition would be able to afford it." The obligation of the father to support his child terminates when the child is of age, no matter how wealthy the father may be, unless the child be in such a condition that it would become a pauper. On the death of the father, the duty devolves upon the mother, whose obligation is substantially the same as that of the father, except with regard to the maintenance of a child who has an estate of its own. But, although a mother is compelled to maintain her children in case of the death of the father, yet the court will almost invariably permit an allowance out of the child's estate to assist in supporting it." This difference is due to the more dependent position of the mother and the consequent reluctance of the courts to encroach upon her estate. 10. Education. - Not only the child's own interest but the interests of the community demand that a parent should give his child an education. A parent who suffers his child to grow up like a mere beast, to lead a life useless to others and shameful to itself, has conferred a very questionable benefit upon it by bringing it into the world." But the duty of a parent to educate his child extends only to a degree befitting the position the parent occupies in the community; 30 14 Ill. App. 277 (1883). 31 79 Me. 292 (1887). 321 Ld. Raym. (Eng.) 699 (1790). 33 32 Minn. 385 (1884). 34 Puff. Law of Nations, b, 6, c. 2, Sec. 12. |