be heirs to each other through the mother, jure representationis. (e) In Maryland, by the Act of 1825, ch. 156, illegitimate children, and their issue, are declared capable in law to take and inherit real and personal estate from their mother, and from each other, and from the descendants of each other, in like manner as if born in lawful wedlock. (f) In North Carolina, bastards inherit to their mothers, if there be no legitimate child; and bastard brothers and sisters inherit to each other, if one of them dies intestate and without issue. The mother is excluded. (g) The rule in Illinois and Tennessee goes as far as that in North Carolina in respect to the capacity of bastards to inherit to their mother. (h) *415 In Louisiana, the recognition of the rights of natural or illegitimate children, is (with the exception of those whose father is unknown, or the offspring of adulterous or incestuous connections) carried beyond any other example in the United States. If they have been duly acknowledged, 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 from their illegitimate offspring; and in default of parents, and ascendants and descendants, the estate goes to the natural brothers and sisters of the bastard and to their descendants. (a) 2

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The laws of different nations have been as various and as changeable as those in the United States, on this painful but interesting subject. By the Roman law, as declared by Justinian, the mother

(e) Brown v. Dye, 2 Root, 280.

(f) See Brewer v. Blougher, 14 Peters U. S. 178, on the construction of the Maryland statute.

(g) Flintham v. Holder, 1 Dev. Eq. 345, Statute of 1799. North Carolina Revised Statutes, 1837, p. 237.

(h) Bastards are enabled, in North Carolina, to inherit the real estate whereof the putative father might die seised, provided he petitioned a court of justice for the purpose, and showed that he had intermarried with the mother, or that she was dead, and obtained an order for the legitimation of the child. 1 North Carolina Revised Statutes, 1837, p. 92.

(a) Civil Code of Louisiana, art. 912-917. Laclotte's Heirs v. Labarre, 11 Louis. 179.

1 An acknowledgment, in Louisiana, by the father of natural children by his own slave, besides being offensive to morals, is a mere nullity. Turner v. Smith, 12 Louis. 417.

Molasco v. Lurty, 13 Louis. 100.

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. (b) The French law, before the revolution, 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. (c) In June, 1793, in the midst of a total

* revolution in government, morals, and law, bastards, duly *416 recognized, 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 the parents who died without lawful heirs, and to ratable 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. (a) The French law, in imitation of the Roman, distinguishes between two classes of bastards; and while it allows to the child of an adulterous and incestuous intercourse only a bare subsistence, the other and more fortunate class of illegitimates, are entitled to the succession, to the qualified extent 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 tribunals. (b)

In Holland, bastards inherit from the mother; and they can

(b) Inst. 3, 3, 7. Ibid. 3, 4, 3. Code, 6, 57, 6. Novel 18, 5, 5. Gibbon's Hist. vol. viii. 67, 68.

(c) Domat. tit. Successions, part 2, sec. 12. Ibid. b. 1, tit. 1, sec. 2, art. 8. Ibid. b. 2, tit. 2, sec. 2, art. 10. D'Aguesseau, Dissert. sur les Bastards, Œuvres, tom. vii. 881. 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 provisions of the Roman law. Répertoire de Jurisprudence, par Merlin, tit. Bastards. Bastards, as we have already seen (see supra, vol. ii. 208), were legiti mated, under the civil law, by the subsequent marriage of the parents; and this was the ancient law of the Duchy of Normandy. Grand Coustumier, c. 27.

(a) Code Napoleon, art. 723, 756, 757, 758, 765.

(b) Toullier's Droit Civil Française, tom. iv. secs. 248-270. He gives detail of some of those controverted points.

transmit by descent to their own children, and, in default of them, to the next of kin on the mother's side. (c)

• 417

*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 children capable of succeeding to the estate of the mother in default of lawful issue. The alteration only goes to enable the mother, and her relations, to succeed to the child's intestate estate. If a discrimination was to be made, and the right of descent granted to one party only, then surely the provision should have been directly the reverse, on the plain principle that the child is innocent, and the mother guilty of the disgrace attached to its birth. The parents are chargeable with the disabilities and discredit which they communicate to their offspring; and the doctrine has extensively prevailed, that the law ought not to confer upon such parents by its active assistance, the benefits of their child's estate. The claim for the interposition of the law in favor of the mother and her kindred, and especially in favor of the putative father, is held, by high authority, to be destitute of any foundation in public policy. (a)

(c) Institutes of the Laws of Holland, by Van der Linden, translated by Henry, b. 1, c. 10, sec. 3. Commentaries of Van Leeuwen, b. 1, c. 7, § 4, b. 3, c. 12, § 4. 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 honorable office, and even to be incompetent witnesses against persons of legitimate birth. Heineccius wrote a dissertation entitled, De Levis Notæ Macula, and he 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 insigniti; but he admits that the rule is different in Germany. They are excluded from the inheritance, and bear the mark of disgrace; semper levi nota adspersi fuisse videntur. Heineccius then enters into an eulogium on this branch of German jurisprudence, and, with the zeal of a patriot, undertakes to show, even from Tacitus downwards, that no nation surpassed the Germans in the value which they set upon the virtue of chastity. Heineccii Opera, tom. ii. Exercitatio 7, secs. 32, 34. In 1771, the King of Denmark declared, by ordinance, that illegitimate birth should no longer be considered a dishonor, and bastards were placed on an equality with children born in wedlock, in regard to ecclesiastical rights and employments in the church. Dodsley's Ann. Reg. for 1771, p. 125.

(a) See the remarks of Ch. J. Parker, in 4 Pick. 95. Lord C. B. Gilbert places the exclusion of bastards from the feudal succession on high and lofty principles of honor and morality. "The lords would not be served by any persons that had that stain on their legitimation, nor suffer such immoralities in their several clans." Gilbert on Tenures, 20.

IV. There is generally, in the statute laws of the several states, a provision relative to real and personal estates, similar to that which exists in the English statute of distribution, con- *418 cerning an advancement to a child. If any child of the intestate has been advanced by him by settlement, either out of the real or personal estate, or both, equal or superior to the amount in value of the share of such child which would be due from the real and personal estate if no such advancement had been made, then such child, and his descendants, are excluded from any share in the real or personal estate of the intestate. But if such advancement be not equal, then the child, and his descendants, are entitled to receive from the real or personal estate, sufficient to make up the deficiency, and no more. The maintenance and education of a child, or the gift of money, without a view to a portion or settlement in life, is not deemed an advancement. An advancement of money or property to a child is prima facie an advancement, though it may be shown that it was intended as a gift, and not an advancement. (a) 3

3

This is the provision as declared in the New York Revised Statutes, (b) and it agrees in substance with that in the statute laws of the other states. (c) The basis of the whole is the provision in the statute of distribution of 22 and 23 Charles II., though there are a few shades of difference in the local regula

(a) The Distributees of Mitchell v. Mitchell, 8 Ala. 414.2

(b) Vol. i. 754, secs. 23, 24, 25, 26. Ibid. vol. ii. 97, secs. 76, 77, 78. (c) Mass. Revised Statutes, 1836, part tit. 2, c. 61. Purdon's Penn. Dig. 552. Elmer's N. J. Dig. 130. North Carolina Revised Statues, 1837, vol. i. 236. Revised Statutes of Vermont, 1839, p. 293. Alabama Statute, Clay's Digest, 197, § 25.

1 But if it appears that such was the parent's intention, it will be an advancement. Riddle's Estate, 19 Penn. St. 43.

2 Brown v. Burke, 22 Geo. 574. Hodgson v. Macy, 8 Ired. 121. Grattan v. Grattan, 18 Ill. 167. Lawrence v. Mitchell, 3 Jones Law (N. C.), 190. Proseus v. McIntyre, 5 Barb. (N. Y.) 424. Notes of a child, held by the parent at the time of his death, will be considered evidences of debt, not of advancement. Varden v. Hance, 1 Head (Tenn.) 300.

8 In South Carolina it has been held, that a gift for mere purpose of pleasure and amusement, as a saddle-horse, is not to be considered an advancement. Ison v. Ison, 5 Rich. Eq. 15. It is a question purely of intention. Lawson's Appeal, 23 Penn. St. 85. If originally intended as a gift, it cannot subsequently be treated as an advancement. Ibid. Sherwood v. Smith, 23 Conn. 516. If charges are made in testator's book, parol evidence of his intention is inadmissible. Weatherhead v. Field, 26 Vermont, 665. A conveyance of property, to take effect at the grantor's death, was held an advancement. Hook v. Hook, 13 B. Mon. 526. See Murrel v. Murrel 2 Strobh. Eq. 148.

tions on the subject. (d) The statutes in Maine, Vermont, and Massachusetts have mentioned the requisite evidence of the advancement; and it is to consist of a declaration to that effect in the gift or grant of the parent, or of a charge in writing to that effect by the intestate, or of an acknowledgment in writing by the child. The provisions in those states, and in Kentucky, applies equally to grandchildren; whereas the language of the provision is, generally, in the other states, like that in the statute of distribution, confined to an advancement to the child of the parent. (e) It is declared in New York, that every estate or interest given by a parent to a descendant, by virtue of a beneficial power, or of a power in trust, with a right of selection, shall be deemed an advancement. (ƒ) In New Jersey, the statute uses the 419 word issue, which is a word of more extensive import than the word "child;" though children, as well as issue, may stand, in a collective sense, for grandchildren, when the justice or reason of the case requires it. (a) It would have been better, however, if the statutes on this subject had been explicit, and not have imposed upon courts the necessity of extending by

*

(d) Edwards v. Freeman, 2 P. Wms. 435. Weyland v. Weyland, 2 Atk. 635. Barber v. Taylor's Heirs, 9 Dana (Ken.), 85.

(e) In Pennsylvania, as the question of advancement depends upon the intention of the parent, it is held that the declarations of the parent at the time, or the admissions of the child, at the time or afterwards, are evidence of it. Daniel King's Estate, 6 Wharton, 370.6

(ƒ) New York Revised Statutes, vol. i. 737, sec. 127. In Ohio, the provision applies when any child or its issue has been thus advanced. Statutes of Ohio, 1881.

(a) Wyth v. Blackman, 1 Vesey Sen. 196. Royle v. Hamilton, 4 Vesey, 437. Dick inson v. Lee, 4 Watts, 82. The statute of North Carolina, of 1784, speaks of son or daughter having such advances. And in Vermont, by statute, the word issue, as applied to the descent of estates, included all the lawful, lineal descendants of the ancestor. Revised Statutes of Vermont, 1839, p. 53.

4 A written acknowledgment, signed by husband and wife, and found among the deceased's papers, in this form: "Received of A. B. [the deceased], $500, it being part of my wife's pertion," is sufficient evidence of an advancement, under the statute. Hartwell v. Rice, 1 Grav, 587. See, also, Treadwell v. Cordis, 5 Gray, 341.

5 There is a similar statute in Rhode Island. Mowry v. Smith, 5 R. I. 255. Sayles r. aker, Ibid. 457.

6 If the parent, on advancing money to his son, take a bond for re-payment, either with of without interest, it will be held a debt and not an advancement. High's Appeal, 21 Penn. St. 283. Springer's Appeal, 29 Penn. St. 298. Christy's Appeal, 1 Grant, Cases (Penn.), 869. West v. Bolton, 23 Geo. 531. Arnold v. Barrow, 2 P. & H. (Va.) 1. A gift † › a grandchild is not an advancement. Shiver v. Brock, 2 Jones Law (N. C.), 137.