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1820.

Heirs

V.

and complete capacity of inheritance, through the maternal line, both lineal and collateral. By nothing Stevensons short of this can the terms of the law be satisfied. It is said, however, that the terms of the law are Sullivant. 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 the part of the mother, in like manner as if they had been lawfully begotten of such mother."

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Sullivant.

Mr. Doddridge, contra, stated, 1. that in examinStevenson's ing the appellants' claim to hold the lands in question,

as the legal representatives of Hugh Stephenson, under his will, he 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 fronı 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 the 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 inde

1820.

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Sullivant.

pendent, they had asserted no claim whatever to the crown lands, such a promise would have appeared absurd. The first mention of a land bounty will be found in the acts of the first regular General Assembly at their October session in 1776, chapters 11. and 21. enacted after the death of Hugh Stevenson. The practice of giving bounties in land was followed up by the acts of October, 1778, c. 45, May, 1779, c. 6., and the manner of carrying them into grant was provided for by the acts of May, 1779, c. 18. and of October 1779, c. 21. But these laws having omitted to provide for the heirs of those who were, or should be, lost in the service, two others were passed. By the first a promise was made to the officers and soldiers, then living, in these words: "and when 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, soldier or sailor, respectively, had he been living." The second is in the following words, (comprehending the case of H Stevenson :) “ That the legal representatives of any officer, on continental or State establishment, who may have died in the service, before the bounty in lands promised by this or any former act, shall be entitled to demand and receive the same in like manner as the officer himself might have done if living. It is observable, that the latter act only respects the heir of an officer who had fallen before any land bounty was promised

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1820. to any person ; whereas the former is an encourage

ment held out to the living officer, soldier, and sailor,

&c. By the latter act, it is evident that the bounty conSullivant. ferred 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 widow or 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 comprehend what is meant by the opposite counsel, when he speaks of those 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 they mean any thing, they mean the persons to

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whom the party had devised the property in question. But could Hugh Stevenson devise the property in Stevenson's question ? Real estate in Virginia was never devisable at the common law. In 1776, the English Sullivant: 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 1785, 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; 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 children, 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

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