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of the laws of England above all other laws. So natural, and so powerful, is the impression of education and habit, in favour of the long established institutions of one's own fountry. .
There are some other rules and regulations on the subject of descents, of which it would be proper to make mention before we close our examination of this title.
1. Posthumous children, as has been already mentioned, inherit, in alt cases, in like manner as if they were born in the lifetime of the intestate, and had survived him. This is the universal rule in this country. It is equally the ac knowledged principle in the English law, and for all the beneficial purposes of heirship, a child in ventre sa mere is considered as absolutely born.d
2. In the mode of computing the degrees of consanguinity, the civil law, which is generally followed in this country upon that point, begins with the intestate, and ascends from him to a common ancestor, and descends from that ancestor to the next leir, reckoning a degree for each person, as well in the ascending as descending lines. According to this rule of computation, the father of the intestate stands in the first degree, his brother in the second, and his brother's children in the third. Or, the grandfather stands in the second degree, the uncle in the third, the cousins in the fourth, and so on in a series of genealogical order. In the canon law, and which is the rule of the common law, in tracing title by descent, the common ancestor is the terminus a quo. The several degrees of kindred are deduced from him. By this method of computation, the
a Hale's Hist. of the Common Law, vol. č. 74. 6 Supra, p. 385. CN. Y. Revised Statutes, vol. i. 754. sec. 18. and Griffith's Regis. ter, h. t. and the statute laws of the several states.
d Statute 9 and 10 William III. c. 16. Doe v. Clarke, 2 H. Blacks. Rep. 399.
brother of A. is related to him in the first degree, instead of being in the second, according to the civil law; for he is but one degree removed from the common ancestor. fThe uncle is related to A. in the second degree, for thoughi the uncle be but one degree from the common ancestor, yet A, is removed two degrees from the grandfather, who is the common ancestor.
(3.) Under the English law, illegitimate children cannot take by descent, for they have not, in conteniplation of law, any inheritable blood. Nor can they transmit by descent, except to their own offspring, for they have no other heirs. The New-York Revised Statutege have continued the rule of the English law denying to children and relatives who are illegitimate, the capacity to take by die soent; but the estate of an illegitimate intestate may do. scend to his mother; and if she ble dead, to his pela tives on the part of the mother, the same as if he had been legitimate. · This introduction of a provision into the law of descents in New-York, in favour of the mother of a bastard, falls short of the extent of the provision in relation to them in some of the other states. In the states of Maitte, NewHampshire, Massachusetts, Rhode Island, New Jersey, Pennsylvania, Delaware, Maryland, South Carolina, Georgia, Alabama, and Mississippi, bastards are; indeed, placed 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. But in the states of Vermont, Virginia, Kentucky, Ohio, Indiana, and Missouri, bastards
a 2 Blacks. Com. 206. 224. 504.
can inherit from, and transmit to, their mothers, real and personal estates. The principle prevails, also, in Connecticut, Illinois, 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 Connecticut 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. In North Carolina, bastards can inherit as lawful children to their mothers, but it would seem, that in default of their own issue, their mother does not take, but their brothers and sisters by the same mother. The rule in Illinois, and Tennessee goes as far as that in North Carolina in respect to the capacity of the bastard to inherit, but I am not informed whether it be carried further; and, in Tennessee, the bastard does not inherit to the mother, unless she dies intestate without lawful issue. In Louisiana, the recognition of the rights of bastards is carried beyond any other example in the United States. 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 to their illegitimate offspring, and, in default of parents, the estate goes to the natural brothers and sisters of the bastard, and to their descendants.b
a 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.
b Civil Code of Louisiana, art. 912--917.
The laws of different nations have been as various and as changeable as those in the United States, on this painfył, 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 revo. lution, 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 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 rateable 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 adulterops and incestuous intercourse, only a bare subsis. tance, the other, and more fortunate class of illegitimates, are entitled to the succession to the qualified extept 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 the tribunals.
a Inst. 3. 3. 7 Ibid. 3. 4.3. Code, 6. 57. 6. Nov. 18. 5. 5. Gibbon's Hist. vol. viii. 67, 68.
b Domat, vol. i. tit. Successions, part 2. sec. 12. Ibid. b. 1. tit. 1. sec. 8. Ibid. b. 2. tit. 2. sec, 11. 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 provision of the Roman law. Repertoire de Jurisprudence, par Merlin, tit. Bastard.
c Code Napoleon, art, 756,757,758.765.
In Holland, bastards inherit from the mother, and they can transmit by descent to their own children, and, in de fault of them, to the next of kin on the mother's side,
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 chil. dren capable of succeeding to the estate of the mothor in default of lawful issue. The alteration only goes to ena. ble the mother, and her relations, to succeed to the child's
Touillier's Droit Civil Français, tom. 4. sec. 248-270. He gives a detail of some of those controverted points,
Institutes of the Laws of Holland, by Vander Linden, translated by Henry, p. 165. Commentaries of Van Leeuwen, p. 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. Heince. Oiwa Wrote a dissertation entitled, De Levis Notæ Afacula, and be 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 insigmiti ; but he admits that the rule is different in Germany. They are excluded from the inheritance, and bear the mark of disgracesemper lei nola adspersi fuisse videntur. Heineccius then enters into an eulogium on this branch of Germanie jurisprudenee, and, with the zeal of a patriot, undertakes to show, evon from Tacitus down. wards, that no nation surpassed the Germans in the value which they sot upon the virtue of chastity. Heineccii Opera, tom. 2. Exerci. tatio 7. sec. 32. 34.