Majority — Washington J.
p. 207(Chancery and Local Law )Stevenson’s Heirs v. Sullivant.Syllabus
Previous to the year 1775, H. S. of Virginia, cohabited with A. W., and had by her the appellants, whom he recognized as his children. In July, 1775, he made his will, which was duly proved after his ¡deceasé, in which he described them as the children of himself, and of his wife A., and devised the whole of his property to them and their mother. In June, 1776, he was appointed a colonel in the Virginia line, upon the continental establishment, and died in the service, having in July, 1776, intermarried with the mother, and died leaving her pregnant with a child, who was afterwards born, and named R. S. After the death of FI. S., and the birth of his posthumous son, a warrant for a tract of military lands was granted by the ■State of Virginia to the posthumous son, R. S., who died in 1796, in his minority, without wife or children, and without having located or disposed of the warrant. His mother also died before 1796. Held, that the children of H. S. were not entitled to the lands, as devisees under his will, under the act of Assembly; nor did the will so far operate, as to render them capable of taking under the act, as beiDg named his legal representatives in the will.The appellants were not legitimated by the marriage of H. S. with their mother, and his recognition of them as his children, under the 19th section of the act of descents of Virginia, of 1785, which took effect on the 1st of January, 1787.
The appellants were not, as illegitimate children of H. S. and A. W.,capable of inheriting from R. S. under the act of descents of Virginia,
Appeal from the Circuit Court of Ohio. This was a suit in Chancery, and the case upon the facts admitted by the parties, was as follows: Previous to the year 1775, Hugh Stephenson, of Virginia, lived and cohabited with Ann Whaley, and had.by her the appellants in this caus.e, whom he recognized
p. 208as his children. In July, 1775, he made his will, in which he described the appellants as the children 0f bimself, and of his wife Ann, and devised, the whole of his property to them, and to their mother. In July, 1776, he intermarried with the said Ann Whaley, and died the succeeding month, leaving her pregnant with a child, which was afterwards born, and was named Richard. The will was duly proved after the death of the testator. In June, 1776, the testator was appointed a colonel in the Virginia line, upon continental establishment, and died in the.service. After his death, ánd the birth of Richard, a warrant for 6,666 and two-thirds acres of military lands, was granted by the State of Virginia to the said Richard, who died in the year 1796, in his minority, without wife or children, and without having located or disposed of the above warrant. His mother also died before the year 1796. The defendant claimed the land in controversy under John Stephenson, the elder paternal uncle of Richard; and the appellants having filed their bill in the Court below to recover the premises in question, the same was dismissed, and the cause was brought by appeal to this Court.,
Mr. Brush, for the appellants,
stated, that the appellants insisted, that, as representatives of their father, Hugh, the warrant in question ought to have issued to them. All the laws of Yirginia, granting military land bounties, were passed after the death of Hugh Stephenson. The act which extends the. bounty to those who had died before any bounty was
p. 209provided, is that under which the warrant issued. It assigns the bounty to the “ legal representatives” of the person upon account of whose services it was granted. ' We maintain, that the term, lives, is used purposely not to exclude the heir, but to embrace others than the legal heir; under the then existing laws. It never could be intended to give a bounty to elder brothers and uncles, who might be in arms against the country; but to the immediate objects of the soldier’s attention and care, whom, by his will, he had appointed to represent him, or to that class of relatives, among whom personal property was distributed by the statute of distributions; certainly more just and liberal in its provisions, than the feudal course of descents, by which real estate was cast on the eldest male relative in a collateral line. But, waving this point, the complainants maintain that they are heirs at law of Richard Stephenson. And théy maintain this upon two grounds. First. By the Virginia law, regulating the course of descents, passed in 1785, they were legitimated Second. By the same law, as bastards, they were made capable of inheriting to their deceased brother, on the part of the mother.1. The ancestor of Richard never had any interest in the subject that constitutes the estate. It is a gratuity given to his representative, who most clearly took as a purchaser, and the estate he held, upon his decease, passed to his heirs generally, without reference to the channel through W’hich he derived it. The estate originated under the laws of Virginia. The parties resided in Virginia, until the establishment of
p. 211posterior to the passage of the act.” This observation of Judge Roane may properly be termed an obiter dictum. The case before him did not require that point to be decided ; and, we conceive, that the dictum is demonstrably incorrect, as is also the intimation of the Chancellor. The object of the act was to “ protect and provide for the children,” by giving them a complete capacity of inheritance. To give them this title, the law requires two facts ; the marriage, and the recognition by the father. But, it is said, that although the law embraces the case of an anterior marriage, the recognition must be subsequent. .Why this distinction ? The grammatical construction of the sentence does not require it. The terms, “ shall afterwards intermarry,” are correctly referred to the birth of the children, not the date of the act. In relation to the marriage and the recognition, the statute speaks from the same time. The whole structure of the sentence necessarily connects them; The active participle, having,” in reference to the birth of the children, and the passive participle, “ recognized,V in relation to their acknowledgment, are the only terms which could properly be used to describe both anterior and subsequent cases with reasonable precision. Surely it would be a strange construction, by which the active participle is made to embrace both the past and future, while the passive participle, in the same sentence,' is confined to future cases only! This can only be done by interpolating the word hereafter, so as to make that part of the sentence read, such child or children, ¿/"hereafter recognized by him” The object of the statute does
p. 213to his legitimate child. If, under that act, the appellants were legitimated, in 1787, they, thereby, could not prejudice the rights of Richard. Their new capacity was altogether prospective. From that day, they enjoyed a character to inherit rights which might thereafter accrue; and, in relation to those rights, we do not see what bearing the time of their father’s death has upon the question. In the case of Sleighs v. Strider, W. Hall devised land to his son, R. Hall, for life ; and after to his eldest son and his heirs forever : but if no male issue, to his eldest daughter and her heirs. Richard Hall had an illegitimate son bom in 1776: in 1778 he married the mother, and recognised the son till his death, in 1796. He had also daughters after the marriage. It was determined that the son was legitimated, by the act of 1785, and entitled under the devise from his grandfather. It would seem, from the dictum of Judge Roane, that if Richard Hall had died before the 1st of January, 1787, the grandson never could have been legitimated. Whether he could or not, the eldest daughter must have taken. But suppose that the grandson had lived until 1788, and, in the lifetime of his father, had died leaving issue: would such issue, or the eldest daughter of Richard, have taken under the devise ? We maintain that the issue of the deceased son would have taken : from which we infer that the time of death is immaterial. The interpretation of the Virginia Courts can only be made rational and intelligible by rejecting the limitations suggested by the Chancellor and' Judge
p. 215and complete capacity of inheritance, through the maternal line, both lineal and collateral. By nothing short of this can the terms of the law be satisfied. It is said, however, that the terms of the law are fully satisfied when it is extended to inheritance direct, between the bastard and the mother; thus excluding collateral'descents between bastards altogether. This doctrine is founded upon an entirely erroneous rule of construction.. It is assumed that the statute being an innovation upon the common law, must be construed strictly, and extended only so far as the letter absolutely requires. The Virginia Courts, in the cases referred to, have adopted a different rule; and a rule more consonant to reason and justice, and to our free and equal principles of government. The incapacities of bastards grew out of the feudal system, and originated in the dispositions of the feudal lords to multiply escheats and forfeitures. Most undoubtedly it was the intention of the Virginia legislature, to cut up the whole system root and branch. If bastards cannot inherit from a legitimate brother, .they cannot inherit from each other. Neither can they inherit from, or transmit inheritance to, uncles, grandfathers, or any collateral relative whatever. By the same rule, legitimate brothers and sisters cannot inherit from bastards, or their descendants. And if this be the case, who can say that bastards are capable of inheriting “ and transmitting inheritance, on thé part of the mother, in like manner as if they had been lawfully begotten of such mother.?-’'
p. 216Mr .Doddridge, contra,
stated, 1. that 1. that examining the appellants’ claim to hold the lands in question, as Hie legal representatives of Hugh Stephenson, under his will, lie would contend, what indeed seemed to be admitted on the other side, that Richard Stephenson took by purchase from the State, and that Hugh never had an interest in the subject, legal or equitable, which he could devise, or which could pass from him in a course of descents If this be so, it would certainly follow, that upon the death of Richard, under age and without issue, after having survived his mother, the estate passed from him to his heirs general, according to the letter of the act directing the course of descents, as the appellants’ counsel contend, and without reference to the channel through which he obtained it. But we shall insist, that according to the equity of the 5th section of the act of descents, the land passed to thé. fraternal kindred.One of the laws of Virginia on the subject of land bounties refers to them, as having been “ promised by ordinance of Convention.” This circumstance made a search for that ordinance necessary. There were three sessions of a Convention held in the year 1775. By an act of the last, the Convention of 1776 was regularly elected. The present controversy has had the effect of collecting the journals of both Conventions. They are now, for the first time, published. A perusal of them will show, that the Conventions,, although they provided for raising troops, never made a promise of land bounty to any description of the public forces. Indeed, until, they declared the State iride
p. 218to any person ; whereas the,former is an encourage-out to the living officer, soldier, and sailor, &c. By the latter act, it is evident, that the bounty conferred by it was not given to those who died before any bounty was provided ; nor to the legal representatives of those, on account of whose services the same was given, as such. The bounty is directly given to the legal representative for the loss of an ancestor ; and is so much as the father would have been entitled to had he lived or fallen in the service, &c. Here, if the heir took quasi heir, the debts of his ancestor might sweep the gift away. The difference between pay and bounty cannot well be overlooked. The first is a vested estate, and, as such, subject .to debts and legacies. Bounties to the widowor.heir, are in the nature of compensation, or of gratuities for a loss, and are taken directly from the hand that gives. Hugh Stevenson had not, at the time of his death, even a promise of the bounty in question, nor of any other bounty. His services entitled him to his pay and subsistence alone.It is difficult to cómprehend what is meant by the opposite coiinsel, when he speaks of those a whom by his will he had appointed to represent him, or to that class of relations among .whom personal property was distributed by the statute of distributions.” As to the statute of distributions, it is enough to say, that then, as well as now, it no more embraced a bastard than the feudal law of descents. And as to the terms “ appointed by his will to represent him,” if tjiey mean any thing, they mean the persons to
p. 219whom the party had devised the property in question. But could Hugh Stevenson devise the property in question ? Real estate in Virginia was never devisable at the common law. In 1776, the English statute of wills was in force. . Under that statute, those only who were seised, could devise. The construction of that statute was the same in England and Virginia. Those lands only, which the testator had at the time of making his will, could be devised. The Virginia statute of wills empowers a party to devise such estates, real or personal, as the party hath, “ or at the time of his death shall have,” &c. This statute passed in 1786, and began its operation on the 1st of January, 1787. It is, then, obvious that the appellants cannot claim as devisees, neither at the common law, nor under the English statute of wills ; nor even under the Virginia statute of wills, if it had been then in force j because neither at the time of making his will, nor at the time of his death, had the testator any interest in the premises.2. The appellants claim as heirs at law to Richard, under the 19th and 18th sections of the act directing the cause of descents. The 19th section is in these words : “ Where a man having, by a woman, one or more childreh, shall afterwards intermarry with such woman, such child or children, if recognized by him, shall be thereby legitimated.” The issue also in marriages deemed null in law, shall, nevertheless, be legitimate. And the 18th section is in these words: “In making title by descent, it shall be no bar to a party that any ancestor through
p. 220whom he derives his descent, was, or shall have been, an alien. Bastards also shall be capable of inheriting or transmitting inheritance on the part' of their mother, in like manner ás if lawfully begotten of such mother.”In the construction of statutes no authority need be quoted for the following rules of interpretation. 1st. All the acts passed at any one session of a legislative body are: to be taken together as one act. 2d. Consequently, the same words or phrases, as often as they occur, are to be construed to have the same meaning when that can be given them without gross violation of the sense. 3d. The acts of the same session, made in pari materia, are to be taken together as one act. The marriage act, the act of descents, the statute of wills and distributions, and the act respecting dower, were made in pari materia. Marriage is the source of all legitimate birtfy and,. as' such, the cause of dower, of descents, and of distributions. These laws have extraordinary claims io be considered as oné statute. They were compiled at the same time, by the same committee, composed of the ablest lawyers and civilians of their . country — pnacted at the same session of the same legislative body, in the same, year, .(1785;) and, lastly, ali went into operation at the same time, on. the 1st of January, 1789. They will be foupd to contain a complete code for the government of domestic relations, without any contradictions or discrepancies. These four . statutes contain 164 sections ; in almost every one of which the future verb shall occurs, and in all of'which, with the exception
p. 221of the 7th section of the marriage act, ("which confirms past irregular marriages,) its future operation cannot be disputed, nor never has been disputed.With the rules of construction already stated, and this view of the four Statutes, we will proceed to show, that the appellants’ construction of the 19th section is incorrect. . And this, 1st, on principle, and, 2dly, on authority. First. The rules of construction entitle us to give to the verb shall, in this section, the same meaning intended whenever it occurs in any of the statutes. If the legislature had intended to confer legitimacy on those recognized before the 1st of July, 1787," they certainly would have left us nothing for construction. They would not have been less cautious than in the preceding section they had shown themselves oil a less important subjec; “ is or hath been an alien,” &c. Again ; it is the obvious policy of a just legislature, that this act should operate prospectively, not .retrospectively. Words which might bear both constructions, ought to be expounded according to that policy; to give a statute a retroactive effect without evident necessity, is inconsistent with this policy. To give to this act an operation upon past births and marriages, is to carry the liberality of construction far indeed. But to cause it to operate on the past recognitions of the father who is dead, before the commencement of the statute itself, would be unjustifiable. The principle of the law is, that after marriage, the father, if he. pleases, may render his children legitimate. Legitimation, in this view, is the effect of the father’s agreement; an effect of which he must be sensible.
p. 222to make it his act. It is easy to conceive of cases in which a father, willing to soothe his wife, and make the best of his case, might be brought to say that her children, born before their marriage, were his, at a time when such acknowledgment would have no legal effect whatever; but who, with the provisions of this statute before him, would make such an acknowledgment; an acknowledgment which would make the child his heir, and pledge him to the mother and the world to provide for it as such; To construe the act as having a retrospective effect on past recognitions, would, therefore, be against the general policy of legislation: contrary, often, to the wish of a deceased individual; and might be productive of much injury to private rights.But, it is said, that the possible interest which children have in the property of their father in his. life time, is not of that absolute character which the legislature cannot control. This is admitted, and the statuteof descentsis an exercise of such a control. But the new rule of descents created by that act, is known to the prop; ietor in his life time, and if that pleases him not, the statute of wills, of the same date, is placed in his hands, and enables him to control the act of descents. . Again ; it is a maxim that nemo est hceres viventis. In life, the relation of father and child exists between legitimates, but not between illegitimates. The relation of ancestor and heir, presumptive or expectant, may exist while the former is still living. But the legal relation of ancestor and heir never does exist until the death of the father. The moment the eyes of the father are closed in death, is
p. 225the fconunon and civil law, was always a competent witness to establish the fact of the father’s identity, and yet never resorted to for the purpose of making her child heir to the father, we have a right to conclude, that the recognition required by the statute, is something more than mere evidence of the facto3. The appellants claim as heirs of Richard Stevenson, under the 18th section, .and in support of this claim they contend, that the terms, “ inheriting or transmitting inheritance on the part of the mother,, in like manner as if they had been lawfully begotten of such mother,” confer a capacity to inherit and transmit inheritance in the ascending as well as descending line, and also from and among collaterals. Their doctrine amounts plainly to this : that by the true construction of the second member of the 18th section, bastards are made the legitimate children of their mothers, at least for the purposes of inheritance.in expounding the statute of descents, it has been justly remarked by Judge Tucker, that the framers of it were eminent sages of the law, and complete masters of its technical terms. This being the case, it would be reasonable to look for the same technical language, in all cases where the same thing was intefided. When in the 19th section of the act of de^ scents, and also in the marriage act, they remove from certain classes of bastards all the disabilities under which they laboured, they employ that legal term which conveys their meaning clearly, and leaves nothing for construction. They say they shall be “ legitimate,” not that they shall be capable of inheriting {l on the part of their mothers and fathers :” leaving
p. 229the statute, “ of inheriting and transmitting inheritance on the part of his mother.” ,But, we insist, that although Richard Stevenson, the son, took by purchase from the State; yet he took quasi heir, to.hold as such to the use of his male ancestry, under the equity of the 5th section of the act of descents: “ Provided, nevertheless, that where an infant shall die without issue, having title to any real estate of inheritance derived by purchase or descent from the father ; neither the mother of such infant, or any issue which she may have by any person other than -the father of such infant, shall succeed to, or enjoy the same, or any part thereof, if there be living any brother or sister of such, infant on the part of the father, or any brother or sister of the father, or any lineal descendant of either of them.” The principle of this section is, that the estate which came from a male ancestor, shall return to his stock. The principle of the 6th section, immediately following it, is the same ; that the estate which came from a female ancestor, shall return to her stock. It is admitted, that the case of Richard Stevenson is not within the letter of the' 5th section ; but is it not within the equity of it ? The es’tate came not from the father by descent, or by gift; but in equity we may pursue the consideration of the grant, and have a right to inquire, whether that consideration was furnished in common, by the paternal and maternal kindred; and, therefore, ought to pass to both lines. The consideration of the grant to Richard Stevenson, is his father’s military service, and his death in that service. Loss is, a valúa».
p. 232decided, and though its correctness may have beén 01'iginaliy doubtful, yet extreme inconvenience follows the disturbance of a rule of property which has been so long settled; and that this argument ab inconvenienti, was of great weight in the estimation of the Court of Appeals itself, may be seen from the proposition to reconsider the decision of that Court in the celebrated case of Tomlinson and Delland, The original decision in that case, which subjected the succession to personal property, tó the feudal principle, which, .in relation to lands, respected the blood of the first purchaser, had been made in 1801. It having produced great excitement in the State, and being very generally disapproved, a reconsideration was most strenuously pressed in 1810, nine years only after the original decree; but a majority of the Court was of the opinion, that the inconvenience of overthrowing what was already considered as a settled rule of property, was too great- to be encountered, even if the decision were erroneous at first. It is true, that they thought the decision called for by the stern language of the law ; but from one of the Judges this opinion was wrung with such manifest reluctance, that it was believed he would have come to a different result had the question heen res integra. Here the rule having been settled, the Court will say how far it ought now to be considered as the settled law of the State.If, however, these precedents be open to question at all, they are open throughout; and if the Court of
p. 234to suspend its operation until the 1st of January, 1787. Again: this act commences with a general ® ^ ® declaration, most unequivocally prospective. The fh'st clause is, “ be it enacted by the general assembly, that henceforth, when any person having title, &c.” According to settled rules of construction, therefore, the force of this expression, henceforth, runs through every subsequent clause. The 19th section under consideration ought to be read thus : “ Be it enacted that, henceforth, [that is, after the 1st of January, 1787,] 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 thereby be legitimated."’ Is this language so irresistibly retrospective, in relation to the date of the law, that the Court is constrained to give it that construction ? is it not, on the contrary, so obviously future and prospective, that it requires subtility and violence to wrest it to a retrospective meaning ? The verbs which indicate the acts that are to produce the effect of legitimation, are in the future tense. It is insisted, therefore, that the clause has no application to any case, but to one in which all the facts on which it is to operate, shall happen after its passage; the birth of the children, the marriage, and the recognition. It is true, that in speaking of the children, the present participle is used, “ having one or more children.” But the present tense of this participle relates, not to the time of passing the act, but to the time of the marriage, “ having,” at the time of the marriage, u one or more children.” This is not a new use of the present tense; grammarians tell us that the present tense is occasion
p. 235ally used to point at the relative time of a future action. The true reading of this part of the act is this, ° , ' cc where” (i. e. in all cases, hereafter, m which) “ a ■man shall marry a woman, having by him, at the J , . ,, m, , . . , time, one or more children. I hus, the participle, although present at the time of the marriage, is future in relation to the passage of the act. This is no unusual application of this participle ; — if I say, ££ if a man shall go to Rome, and having a dagger in his hand, shall strike it to the heart of the Popethe present participle is properly used in it; it is present in relation to the action with which it stands connected, though future, in relation to the time of speaking. So the present participle here is present in refer* ence to the act with which it clearly stands connected, the act of marriage ; although future in relation to the date of the act. The sense is the same as if the legislature had said, “ wherever, hereafter, a man shall have one or more children bj a woman, and shall, afterwards, intermarry with her,” &c. It is only by this construction which considers both the birth and marriage as future, that the word “ after - wards,” used in the act, acquires a grammatical sense, or, indeed, any kind of sense. To prove this, let us see what the effect will be of considering this participle, as used in the present tensé, in reference to the time of passing the act. Then the sense will be, t£ where a man now having one or more children by a woman, , shall afterwards intermarry with her it is clear that the word, aftenvards, becomes insignificant and senseless. It adds nothing to the meaning; for if a man noto having one or more children by a woman, shall intermarry with
p. 237passage, has said, the terms, u shall afterwards intermarryf are correctly referred (by the Court) to the birth of the children, not to the date of the act. This is not accurate: it is not the three words, shall afterwards intermarry, that are referred by the Court to the birth of the children: but the word, after-wards, alone. This, we admit, is correctly referred to the birth of the children : but the Court having correctly gained this conclusion, forget the force of. the future verb,t£ shall intermarry.” We say, that the force of this future verb requires that the marriage shall be after the act. That henceforth, £i where a man having by a woman one or more children, shall afterwards intermarry with such woman,” irresistibly demands a marriage future to ,the date of the act: that the words, shall intermarry, make the marriage future in relation to the act. The word, afterwards, removes the marriage farther off, and marks its futurity in relation to another event, the birth of the children; which other event, although expressed by the present participle, is itself drawn forward into futurity by the force of the word, after-wards, to which it is attached. That such an intention is utterly inconsistent with the prospective character given to the whole act, by the force of the word henceforth, and in the commencement. That the force of this word runs through the whole act; and that, used in the clause under consideration, it would render the retrospective construction of that clause absurd. In the passage cited, Judge Roane says, that no good reason could possibly have existed with the legislature, for varying the construction of a
p. 238section embracing two descriptions of cases, standing on a similar foundation. This might have been a . good argument oil the floor of the legislature, to induce them to embrace past cases; but it is no argument to prove that they have embraced them. Whether they ought to have embraced them is a very different question from whether they have, actually done so. The first is purely a legislative question; the last purely a judicial question, and the only question in the case for the Court.But it is said, the appellants do not seek to give the act a retrospective effect; they say that the act, from the time it took effect, clothed the /appellants with a new capacity of inheritance, not in relation to rights previously vested, but in relation to inheritances which might thereafter fall. Let it be admitted that their position is such ; let it also be admitted, that the legislature had the right to clothe them with such new capacity in relation to future inheritances. But the question still remains, have they done so : is it to persons in their predicament that this new capacity of inheritance is extended ? We have endeavoured to. show that it is not: whether the Court look to the exposition of the statute by the tribunals of the State, or whether they look to the construction of the sthtute, perse. The Court of Appeals of Virginia, while they admit the application of this statute to antecedent births and marriages, decide that the law applies to cases only where the father has died posterior to the passage of the statute. The reasoning on which the Court ground this distinction is not fully developed by them : the appellants’ counsel infers their reason
p. 239ing, and, as we may safely admit, contests it with suecess. But there is a reason for requiring that the father should continue in life after the act, which applies with equal force both to the marriage and the reeognition, and corroborates the construction drawn from the, language ,of the law, that both those facts should be posterior to the act. It is this: the statute attaches new legal consequences to the act of marrying a woman by whom the man had, previously, had children; and to the act of recognizing such children. Make the law prospective in those particulars, and the citizens for whose government it was intended, have it in their choice, by performing those acts thereafter, to incur those consequences or not. But attach those consequences to a past marriage and recognition, and yoii change the legal character of. a past transaction by an ex post facto law. By a subsequent law you attach consequences to an act which did not belong to it when it was performed. It is precisely for this reason that ex post facto laws are prohibited: because consequences are attached to an act which did not belong to them at the time; and which, consequently, could not have entered into his consideration of the question, whether he would commit it or not. You surprise him by a new case, on which his judgment was never called to pass, and when it is too late to retract the step and avoid ■ the new consequences.3. The next ground taken by the claimants is, that if they were not legitimated by the 19th section of the law of descents, they were made capable of inheriting from Richard by the 18th section of that
p. 242from or through. In our case, the Virginia statute furnishes an opposite inference. The expressions, « on the part of the father,” and “ on the part of the mother,” occur in the 5th section of the law of descents. It is the only instance in which they do occur, . and there they are indisputably synonymous with “ of” and “ jfrom” any brother or sister of such infant on the part of the father, and so vice versa. It is said, that this provision places the natural children on the footing of legitimate children to all the purposes of inheritance. But, we would ask, does it enable the mother to inherit from them ? Does it enable the mother’s ancestors or collateral relations So to inherit ? The provision is, that the natural children may inherit from the mother. But where is the provision that the mother may inherit from them, or that her relations may inherit from them P It is not to be found; the legislature did not look upwards beyond the mother. It was not their object to force her natural issue upon a family which she had dishonoured and offended by bringing them into the world. That they should have connected them with her was just and proper; she could not complain. But to have connected them with a family from which she had probably been expelled on account of her infamy, and to have given them a capacity to inherit the estates of that family, would not have been quite so just or reasonable. We contend, that the legislature have not done it; but that the capacity.to transmit applies only to inheritances descending from the mother, and from each other. Again; if the expression,ie on the part of the mother,” is of the extent contended for,
p. 243then the capacity to inherit on the part of the mother, is a power to take inheritances from, or through her, in right of her. But the inheritance claimed is not of this description; it is a direct inheritance from a mother, which, both at the common law, and under the statute, is not an inheritance on the part of the mother; it does not come from, or through her, it does not come in her right. So say the Court in the case of Barnitz v. Casey, before cited.® That was on the statute of Maryland ; the statute of Virginia, in case there is no father, gives the estate to the mother, brothers and sisters, per capita, so that the shares taken by the brothers and sisters, are cast at once from the deceased brother on them, and do not come to them, from, or through, or in right of the mother. This is the inheritance which the appellants claim, and which they claim in virtue of their specific and single capacity to inherit on the part of the mother.Mr. Hammond, for the appellants,
in reply, stated, that the argument on the other side, involved the general construction of the act, as well as its operation upon this particular case. It asserts, that the recognition must, in all cases, be subsequent to the marriage 5 thus proving the consent of the father to the legitimation. Now, if the legitimation does not result from the agreement, or depend upon the assent of the father, this argument is of no avail. The principle is adopted from the civil law. And it is reasonable to suppose, that when the ablest lawyers
p. 245the legal proof of the facts , and this the statute has. defined. There must be,a recognition by the father: 1 , .. . .. . , . i nii , and this is considered a third fact, though as a fact it must exist; yet its existence is only necessary to establish the first fact; that the husband of the mother is, in verity, the father of the child. No legal consequences can result, until facts are established by proof. We insist, that the terms il>if recognized by him,” axe inserted for the single purpose of defining the proof upon which the material facts should be established, and are to be regarded only as prescribing a rule of evidence for the particular case. Had .the legislature intended this recognition as one fact, a principal condition upon which the legitima* cy was to be founded, they could easily have connected it with the other facts, so as to have left no doubt about it. The act would have read thus: “ Where a man, having by a woman one or moré children, shall afterwards intermarry, with such woman, and recognize such child or children, they shall thereby be legitimated.” As the words now stand in the, sentence, they are of very different import. The two principal facts are first enumerated ; then proceeding to declare the result, the mode of proof is set down, as it were, in a parenthesis, hypothetically, and indefinite as to time: As much as to say, “ when the father and mother intermarry, if, suppose that, allow that the father recognized the children, they shall be legitimate.” If the recognition of the father is a principal fact; if the legitimacy is the consequence of that recognition, tire child could only be legitimate . from the time of the recognition. This would in
p. 247recognized as his own, on the same footing as if born in lawful wedlock.” If birth and marriage are the facts upon which the act operates, and recognition nothing but evidence of those facts, the decisions already cited are decisive in our favour. It is settled, that the act extends to cases of birth and marriage before its passage 5 and it is perfectly clear, that the enacting part of the act is prospective. The parties upon whom it is acknowledged to operate, could claim no rights, but those which accrued after the first of January, 1787. It was at that period, and not before, that their new capacity commenced. We have shown, that this interpretation of the act interferes with no vested right: And we have shown how interests in possession may be affected, upon the principle decided in the Virginia Court of Appeals. In the view we take of the case, the death of the father, before the passage of the act, is a circumstance of no importance. It is upon the children, and not upon the father, that the act operates. It attaches upon existing cases, and gives a character to transactions already past. Were he alive, he could not recaí the birth, the marriage, or the recognition. A solemn disavowal of the children could not restrain the operation of the law ; for we have shown, that legitimation results from the facts, and not from the inclination or pleasure of the father.The common law rules of succession, both as to real and personal estate, were exceedingly narrow and illiberal. Where those rules have been enlarged by statute, Courts have-always given the act a liberal, interpretation in favour of the persons let hi,
p. 252succession except in a lineal descent from himself. There was no blood to convey succession, either to ascendants- or collaterals. Having in law no mother, there could be no source from which a bastard could derive inheritable bipod, and no channel through, which his blood could communicate with that ..of others. But as this, was a provision of positive lawj a new provision could restore the connection. Such is-the effect of . the provision under consideration. “ Bastards.also shall be capable of inheriting, and transmitting inheritance, on the.part, of theír mo.thsb, in like manner as if lawfully begotten of such mother.”, Henceforth there shall be heritable blood between the bastard and the mother. The bastard has;thus a .legal mother ; and having a mother* a channel is opened-through which he can have brothers and sisters, and every other relative in the ascending and collateral.line. It was because the bastard had no.;fnother; that he could have no .brothers and sisters, f The act gives him a mother. He can inherit from, and ,transmit-inheritance.to. her direct. Heritable blood can -flow from the’mother to her bastard child, arid'be traced; from the child to the mother, and through the.mother ,to brothers and. sisters, and uncles- and daunts... The .bastard is not-legitimated : .But.his .blood-is. made heritable through that parent about whom there can he no doubt. The. character-, of, bis -blood, being changed,, he is restored to his kindred in matters of inheritance; the only case in, which the law separated him from them. It is true that the appellants were not the brothers and sisters of Richard at the time of his birth, as far as concerned inheritance. Brit, the
p. 253act of 1785 has effected a change in’ their condition.; and from the day it took effect, they were in law, and for the purposes of succession.to estates, his brothers and sisters of the half , blood. Had Richard left brothers and sisters of the whole blood, the 15th section of the act would expressly embrace their case. There was no occasion to make éxpress provision for the succession of bastards, either in the law of descents, or in Judge Tucker’s table, because the general provision for the half blood included their case. This is clearly the mode of succession contemplated. They shall inherit in like manner as if lawfully begotten.It is argued that, on the part óf,\ are technical terms of the law, which only import immediately from. The operation of the act is thus, limited to a descent immediately from the mother. If we are mistaken in the consequence, which we suppose even this intercommunication of blood must work in the legal condition of a bastard, we must still inquire whether the terms of the act can be satisfied by this narrow construction.. We do-not admit that the terms, on the. part of, import no more than immediately from. We insist that they are used to describe the ancestral kindred in the line of each parent. On the part of the mother, means, from or through the mother, or her relatives. Thus, brothers and sisters of the same mother, but different fathers, are brothers and sisters on the ..part of the mother, and are described as such in the 6th section of the act. And in the case of ■Barnitz’s lessee v. Casey, before cited, the counsel-upon both sides, and the Court,.seem to havé understood these terms in the sense we contend for.
p. 254The capacity of transmitting inheritance, conferred by act> can have no operation, if the terms, ün the part of, be interpreted to mean, immediately from the mother. The bastard must transmit the inheritance to or through, whether it pass to ascendants or callaterals.The common law disabilities-of bastards are, like the canons of descent, of feudal origin : for it must be remembered that this disability relates entirely to inheritance. Escheats are the fruits and consequences, as Blackstone says, of feudal tenure resulting from the frequent extinction of heritable blood, according to the feudal tenure of inheritance. A bastard, being the son of nobody, could have no heritable blood, consequently none of the blood of the first purchaser. The feudal doctrine of carrying the estate through the blood of the first purchaser, inevitably excluded inheritance among bastards. In this sense the disability of bastards was the consequence of feudal policy, and totally inconsistent with the liberal and equitable canons of descent, introduced by the act of 1785. The preference of the male ascending line,. preserved by the statute of 1786, is not founded upon feudal doctrines. The inheritance is directed first to the father ; not because he is the most worthy of blood, but because be is., the head of the family, who can best dispose of the estate among his surviving children: And upon this same principle; the grandfather is preferred to the grandmothers and aunts. This is no prefetenee of the male ancestors ; but simply a preference of the husband or father, if in- existence, to the wife or children:of the same person; and the principle of
p. 255this-doctrine is-directly repugnant to that of the feudal or common law.. Corruption of blood by * convictions for crimes, alienage, and bastardy, were three fruitful sources of escheats at the common law. The principle of extinguishing the inheritable blood, applied to each case. The first was cut up by the constitution of Virginia..' :The act of 1785 laid the axe to the root of the other two. Not by authorizing aliens to hold lands, or by legitimating bastards.In the one case it permits a citizen, claiming by descent, to- trace his relation to an intestate through an alien.. In the other, it confers a capacity of inheritable blood upon bastards. The object of both provisions is the same : to enable the kindred of the intestate to obtain the property he left, instead of rapaciously seizing it for the government. The act is clearly remedial, and should be construed liberally in furtherance of the object of the legislature, conformable to the opinions of the Virginia Courts already quoted.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
p. 256Virginia, 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,
p. 257and. 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,
p. 259the 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 cha
p. 260racter 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- “<• ¡nhfStevenson!"R'
The 3d question is, are the appellants, as bastards, ■* J L L '• capable of inheriting from Richard Stevenson ?
The 18th section of the law of descents, under which this question arises, is as follows: “ In making title by descent, it shall be no bar to a party that any ancestor through whom he derives his descent from the intestate, is, or hath been, an alien. Bastards also 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.”
In flie construction of this section, it is never to be lost isight of, that'thc appellants are to be considered, as bastards, liable'to all the disabilities to which the common ■ law subjects them, as such, except those froth which the section itself exempts them.' Though illegitimate, they may inherit and transmit'inheritance, on the part of the mother, in like manner as if they had been lawfully begotten of the mother. What is the legal exposition of these expressions ? Wé understand it to be, that they shall have a capacity to take- real property by descent immediately or through their mother iii the ascending line ; and transmit the same to their line as descendants, in like manner as if they were legitimate. This is uniformly the meaning of the expressions, “ on the part of the mother or father,” when used- in reference to the course of dcscentof real property, in the paternal or maternal
p. 261line. As bastards, they were incapable of inheriting the estate of their mother notwithstanding they were the innocent offspring of her incontinence, and were, therefore, in the view of the legislature, and consonant to the feelings of nature, justly entitled to be provided for out of such property as she might leave undisposed of at her death, or which would have vested in her, as. heir to any of her ancestors, had she lived to take as such. The current of inheritable blood was stopt in its passage from, arid through the mother, so as to prevent the descent of the mother’s property and of the property of her ancestors, either to her own illegitimate children, or to their legitimate offspring. The object of the legislature would seem to have been, to remove this impediment to.the transmission of inheritable blood from the bastard in the descending line, and to give him a capacity to inherit in the ascending line, and through his mother. But although her bastard children are, in these respects, quasi legitimate, they are, neverthe - less, in all others bastards, and as such, they have, and can have neither father, brothers, or sisters. They cannot, therefore, inherit from Richard Stephenson, because, in contemplation of law, he is not their brother : and even if he weré their brother, they would not inherit their estate under this section, on the pari of their mother, but directly from Richard, the descent from brother to brother being immediate. Upon no principle, therefore, can this section help the appellant’s case. His estate never vested in the mother. so as for her bastard children to inherit from
p. 262her; nor did it pass through her in the course of de~ scen<; to the bastard children.
Decree affirmed, with costs.