STEVENSON'S HEIRS

v.

SULLIVANT

Mr. Justice Washington delivered the opinion of the Court. It is admitted by the counsel on both sides, in their argument, with which the opinion of the Court coincides, that Hugh Stephenson, though the meritorious cause of the grant of this land, never took any interest therein, but that the right to the same vested in his son Richard, to whom the warrants issued, as the first purchaser. It is further admitted by the counsel, that the law of descents of Ohio, at the time when Richard Stephenson -died, was not more favourable to the claim of the appellants than that of Virginia, which will be hereafter noticed; and' they have', in the argument, rested the cause upon the. construction of the latter law. The opinion of the Court, therefore, is.founded on this-law. . .

The appcientitled to the lands of H. S. as deviseesunder his will, or ^beingnamed tteehir3

The appellants object to the decree of the -Court below, upon.the following grounds: 1, That the land: warrants ought to have béea granted to them as the. representatives, of Hugh Stephenson, designated as such by his last will.

2. That by the marriage of their mother with Hugh Stephenson, and his recognition of them as his children, they were legitimated, and entitled to the inheritance in this land as heirs to Richard Stephenson ; if not so, then,

3. That, as bastards, they were capable of inheriting from Richard, who, they contend, was their brother, on the part of the mother. 1, The appellants’ counsel do not contend, that their clients are entitled to this land, as devisees tin* * Tt i a i . i . der the will or Hugh Stephenson ; such a claim o i 7 would be clearly inadmissible, inasmuch as the testator was not only not seised of the land at the time his will was made, but the law which authorized the grant of it, was not even then in existence. But they are understood by the Court, to insist, that the will sp.far operates upon the subject, as to name them the representatives of the testator, and to render xhem. capable, as such, of taking under the act of assembly, which passed after the death of the testator. The act provides, that where any officer, soldier, or sailor, shall have fallen, or died in the service, his heirs or legal representatives shall be entitled to, and. receive the same quantity of land as would have been due to such officer, &c. had he been living.”

The appellants not legitimated by the marriage of H. S. with their mother, and his* recognition of them as his elfiP* dren.

This claim, is altogether fanciful and. unfounded.: for, in the first place, the appellants were not appointed by the will to be the general representatives of the testator, but the' devisees, together with their mother, of all the testator’s property; and, 2dly, if they had been so appointed, still it could not confer upon them such a. description as to entitle them to take under the act of assembly, unless the act itself described them as the legal representatives of Hugh Stephenson, for whose benefit the grant was intended ; and then, they would • have taken exclusively under the act, by force, of such legislative description, and not under, or in virtue of the description in the will. It is not likely that, the expression, “ legal representatives,” in the act, was meant to apply to devisees of deceased officers and soldiers for whom the bounty was intended, if they had lived, because, at the time this law was passed, there could not be a devisor of those lands under the general law. It is more probable that they Were intended to provide for the case of a person who may have purchased the right of the officer or soldier to such bounty as the legislature might grant to him.

The next question is, whether the appellants were legitimated by the marriage of Hugh Stephenson with their mother, and Iris recognition of them as his children. This question arises under the 19th section of the-act of 1785^ directing the course of descents, which took effect on the 1st of January, 1787. This section declares, that “ where a man, having by a woman one or more children, shall afterwards intermarry with such woman, such child or children, if recognized by him, shall be thereby legitimated.”

There can be no doubt but that the section applied to bastards in esse, at the time the law came into operation, as well as to such as might thereafter be bqrn. But it is contended by the counsel for the appellants, that the section is, in every other respect, prospective, not only as to the fact of legitimation, but as to the two circumstances of marriage and recognition, which entitle the bastard to the benefits of the law; and, consequently, that to bring a case within the operation of this section, both the marriage and recognition must take place after the J st of January, 1787. On-the other side, it is admitted, that the privilege of legitimation is not conferred upon a bastard prior to the above period; but it is insisted, that, as to the marriage and recognition, the law should be construed as well retrospectively as prospectively.

In the case of Rice v. Éfford, decided in the Court of Appeals of Virginia,a the marriage took place prior to the 1st of January, 1787, but the father recognized his illegitimate children, and died, after that period. The whole Court seem to have been of opinion, that the word u afterwards” referred not to a time subsequent to the 1st of January, 1787, but to the birth of thé children, and, therefore, that the marriage, though prior to that period, legitimated the children before born, if they should be recognized by the father. But, it was stated by Judge Koane, in giving his opinion, that the construction of the act. applies only to cases where the father has died posteriorto the passage of the act.

It is contended by the,counsel for the appellants, that since, in the above case, the father recognized the children subsequent'to the 1st of January, 1787, this opinion of Judge Roane as to the time of the recognition, was unnecessarily advanced, and is, therefore, entitled to no higher respect than what is due to a mere obiter dictum. Be this as it may, it is the uncontradicted opinion of a learned Judge upon the construction of a law of his own State; and is noticed by this Court, not upon the ground of its being considered in that State as of conclusive authority, but because it strongly fortifies the opinion which this Court entertains upon the point decided; which is, that, however the construction may he as to the inception of the right, it is clearly prospective as it relates to the consummation of it. And this prospective operation being given to the act, by requiring the most important condition upon which the privilege of legitimation is to be conferred, to be performed after the law came into operation, it is less material whether the marriage was celebrated before, or after that period. To render the past recognition of the father effectual to give inheritable Blood to his children, who were then illegitimate, and incapable of taking the estate by descent, either from him, or from those to whom it should descend, would in sbipe respects at least, partake of the character of a retrospective law. It would seem to be most reasonable so to construe the law, as to enable the father to perceive all the consequences of his recognition at the time he made it.

The appeilants mcapa- “ surviving legitimate children, and had some sufficient reason for not having married the mother of his natural children, 5. Per resériptumprincipie; by a special dispensation from the emperor granted upon the petition of the father, who had no legitimate offspring, and whose concubine was dead, or where he had sufficient reasons for not marj-ying her. 6. By the recognition of the father ; as if the father designated one of his-natural children as his child in any public or private instrument ; this had the effect of legitimating the child thus acknowledged, and all his brothers and sisters by the same mother, upon a legal presumption, that a marriage might have been contracted between the parents. In all these cases, except the 2d, the children thus legitimated were in all respects placed upon the same fooling as if born in lawful wedlock. (CEuvres de D’JIguesseau, tom. 7..p. 393. and seq. Potbier, Pandect, in Nov. Ord. Redact, tom. 1. p. 27.)

It should be added, that none of these modes'of legitimation could apply to the offspring of criminal commerce, ex damnato coitu; since they all suppose that the children are born of a concubine with whom the father might lawfully intermarry. (CEuvres de D’JIguesseau, ubi supra.)

By the Roman law if a bastard left legitimate children, thejr became his heirs precisely as if he himself had been .legitimate. But if he died, without having been himself legitimated, and without children, his succession was determined by the rule of reciprocity, and his father and mother, &c. succeeded tp him, precisely as he would have succeeded to them. If he bad been legitimated while liyiag, his succession was regulated in the same manner with that of persons born in lawful wedlock. (Id.p. 399.)

By the Canon law, the subject of bastardy was, in general, regulated in the same manner as by the Civil law. But though bastards were capable by the latter of aspiring to all the honours and offices of the State, the former refused them the same privileges in respect to the dignities of the church. The canonists also aimed to exclude them entirely from the succession of their father or mother, but allowed all indiscriminately a right to claim the necessary aliments of life,' After legitimation in any" of the modes provided by the civil law, such as a. subsequent marriage of the parents,- &c. they regarded them in the same manner as if born in lawful wedlock. (Id. p. 400. Gíu¿ seq.) H was this rule which they endeavoured to impose, upon the English barons at the parliament of Merton in the reign of Henry III. (1 BL Com. 456.)

The laws of those European countries which have adopted the Roman law as the basis of their municipal jurisprudence, regulate the rights and disabilities of illegitimate children in the same manner as they are determined by the civil and common law. But the Gothic monarchies of Europe adopted from the earliest times a legislation on this subject, in many respects different from that of imperial and papal Rome. Thus, in all the provinces of France, where the droit coutoumier, or unwritten law, prevailed, bastards were incapable of inheriting ab intestato, except the property of their legitimate children, and the reciprocal right of the husband and wife to succeed to each other according to the title of the civil law, unde vir et uxor. This was the universal law of the kingdom, with the exception of the peculiar customs of a few provinces, and the pays du droit ecrit, where the Roman law constituted the municipal code. (Ferriere. Diet. Mot. Bastard. CEuvres de D’Aguesseaii, tom. 7. pp. 403. 430. 443.)

They were, also, with the exception of certain local customs, incapable of taking by devise from their parents, except des donations moderées pour leur alimens et entretiene. (Ferriere. Diet, ubi supra. CEuvres de D'Aguesseau, tom. 7. p. 431.)

The king was the heir of all bastards dying without legitimate children, or without having disposed of their property by donation inter vivos, or last will and testament, in the same manner as he inherited the estates of aubains, or aliens, dying in the kingdom. (lb.) Of the various modes of legitimation known to the civil law, that of France adopted only 4wo, 1. that by a subsequent marriage of the parents, and 2. by authority of the prince. (CEuvr. de D'Jlguesseau, tom. 7. p. 437. The bastard who was legitimated by the subsequent marriage of his parents, was placed upon the same footing as if born in lawful wedlock, as to personal rights, and those of property ; but he who was legitimated by authority of the prince, par leltre du prince, although capable of aspiring to civil honours and offices, was incapable of inhabiting, or transmitting proper ty by inheritance. (Id. p. 462.) Such was the law of France before the revolution ; but it was greatly modified by the compilers of the new civil code, who retained but one mode of legitimation, that by a subsequent marriage and recognition of the parents. (Code-Napoleon, art. 331, 332, 333.) Illegitimate children, legally recognized as such, are entitled, in case their father shall have left legitimate descendants, to one third of the portion to which they would have been entitled had they been legitimate; in case the former shall have left no descendants, but only kindred in the ascending line, or brothers or sisters, to a moiety of the same ; and in case the parents shall have left neither descendants, nor kindred in the ascending line, nor brothers or sisters, to three fourths of the same portion. (Ib. art. 757.) They have a right to the whole of their parents’ property where the latter shall have left no kindred within the degrees of succession, (lb. art. 758.) Their descendants are entitled to the same rights, jure representation's. (Ib. art. 759.) jBut bastards are not entitled in any case to succeed to the relations of their parents ; (Ib. art. 756.) and none of these provisions are applicable to bastards, the fruit of incestuous or adulterous intercourse, who are only entitled to necessary aliments. (Ib. art. 762, 763, 764.) The property of bastards leaving no posterity, is inherited’ by the parents who shall have recognized them. (Ib. art. 765.) And in case the parents are deceased, the property received from them, is inherited by the legitimate brothers and sisters of the bastard; and all his other property by his illegitimate brothers and sisters, or their descendants, (lb. art. 766.}

' By the -law of Scotland, the • king succeeds as ultimiis hieres, to 'the estates of bastards, and they cannot dispose of their property by will, unless to their lawful issue, without letters of legitimation. But these letters do not enable’ the bastard to succeed to'his natural father ¿ to the exclusion of lawful faeirs ; for the,king cannot, by any prerogative, cut off the private right of third parties. But he may, by a special clause in the letters of legitimation, renounce his right to the bastard’s succession, in favour of him who would have been the bastard’s heir bad he been born in lawful marriage, as such renunciation ftoes not encroach upon the rights of third parties. (Ershine's hist. B. 3. tit. 10. s.-3.) A bastard-is not only excluded, 1. From his father’s succession, because the law knows no father who is apt marked Out by lawful marriage ; and, 2. From all heritable succession, whether by the father -or mother ; because he cannot be pronounced lawful heir by tbe inquest, in terms of the "brief; but, also, 3. From tbe moveable succession of his mother ; for, though the mother be known, the bastard is not her lawful child, and legitimacy is implied in all succession deferred by law. But though he cannot succeed jure sanguinis, he may succeed by destination, where he is specially called to the succession -by an entail or testament. (Ib. s. 4.)

The laws of England respecting illegitimate children, are too well known to render any particular account of them necessary in this place. Vide 1 Bl. Comm. 454. et seq. Co. Litt. by Hargr. & Butler, 3 b. note 1. Id. 123. a. note 8. Id. 123. b. note 1, '2. Id. 243. b. note "2. Id. 244. a. note 1, 2. Id. 244-. b. note 1.