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lawfully born, the real and personal estate of the father. In Louisiana, bastards, (being defined to be children whose father is unknown,) and adulterous or incestuous children, have no right of inheritance to the estates of their natural father or mother. But other natural or illegitimate children succeed to the estate of the mother in default of lawful children or descendants, and to the estate of the father who has acknowledged them, if he dies without lineal or collateral relations, or without a surviving wife. (c) 2
This relaxation in the laws of so many of the states, of the severity of the common law, rests upon the principle that the relation of parent and child, which exists in this unhappy case, in all its native and binding force ought to produce the ordinary legal consequences of that consanguinity. The ordinance of Justinian, to a certain extent, and with exceptions, allowed a bastard to inherit to his mother; (d) and, * in several cases in the * 214 English law, the obligations of consanguinity between the mother and her illegitimate offspring have been recognized. The rule that a bastard is nullius filius, applies only to the case of inheritances. (a) It has been held to be unlawful for him to marry within the Levitical degrees ; (6) and a bastard has been considered to be within the Marriage Act of 26 Geo. II., which required the consent of the father, guardian, or mother, to the validity of the marriage of a minor. (c) He also takes and follows the set
(c) Civil Code of Louisiana, art. 220, 912, 913, 914. By a statute in Louisiana, in 1831, white fathers or mothers may legitimate their natural children by an act made before a notary and two witnesses, provided they be not colored children ; and free people of color may legitimate their colored offspring ; but the natural children must be the issue of parents who might have lawfully contracted marriage, and the parents must have no ascendants or legitimate descendants. A putative marriage is one contracted in good faith, on the part, at least, of one of the parties, and in ignorance of any unlawful impediment; and, in some parts of Europe, the children of such a connection are held to be legitimate. Burge's Com. on Colonial and Foreign Laws, vol. i. p. 152.
(d) Code, lib. 6, 57, 5. (a) Buller, J., 1 Term Rep. 101. Bow v. Nottingham, 1 N. Hamp. 260. (6) Hains v. Jeffel, 1 Lord Raym. 68. (c) King v. Inhabitants of Hodnett, 1 Term Rep. 96. Horner v. Liddiard, 1 Hagg.
* By the laws of Maine, 1852, ch. 260, the mother of an illegitimate child can inherit. In Massachusetts, the illegitimate is an heir to his mother. Laws of 1851, ch. 211. In New York, in default of lawful issue of the mother, her illegitimate children may inherit her real and personal estate. (Laws, 1865, April 18.) By a law enacted in Pennsylvania, April 27, 1855, bastards shall bear the name of the mother, and she and they shall inherit from each other.
tlement of his mother. (d) With the exception of the right of inheritance and succession, bastards, by the English law, as well as by the law of France, Spain, and Italy, are put upon an equal footing with their fellow-subjects ;(e) and in this country we have made very considerable advances towards giving them also the capacity to inherit, by admitting them to possess inheritable blood. We have, in this respect, followed the spirit of the laws of some of the ancient nations, who denied to bastards an equal share of their father's estate, (for that would be giving too much countenance to the indulgence of criminal desire,) but admitted them to a certain portion, and would not suffer them to be cast naked
and destitute upon the world. (f)
* The mother, or reputed father, is generally in this
country chargeable by law with the maintenance of the bastard child ; and in New York it is in such way as any two justices of the peace of the county shall think meet; and the goods, chattels, and real estate of the parents are seizable for the support of such children, if the parents have absconded. The reputed father is liable to arrest and imprisonment until he gives security to indemnify the town chargeable with the maintenance of the child. (a) These provisions are intended for the public indem
Cons. 337. But the consent of the natural parents of illegitimate minors is not sufficient, and there must be a guardian appointed by chancery. Ibid. The prohibition of marriage between relatives in the ascending and descending lines, and between brothers and sisters, applies equally to illegitimate children and relatives. N. Y. Revised Statutes, vol. ii. p. 139, sec. 3.
(d) 3 Johns. 15. 17 Johns, 41. 12 Mass, 429. 5 Conn, 584.1
(e) Oeuvres D’Aguesseau, tom. vii. pp. 384, 385. Butler's note, No. 176 to lib. 3. Co. Litt. I Blacks. Com. 459.
(f) Potter's Greek Antiq. vol. ii. p. 340. Gentoo Code, by Halhed, p. 73. The protection and tenderness which the goddess Fortune is supposed to bestow upon found. lings is, says Mr. Gifford, one of the most amusing and animated pictures that the keen and vigorous fancy of Juvenal ever drew :
Stat fortuna improba noctu,
Sat. 6, v. 603-605. (a) N. Y. Revised Statutes, vol i. pp. 646–656. In Ohio, the courts of common pleas ascertain and enforce the duty of the putative father to maintain his bastard child. Statutes of Ohio, 1831.
1 But see Bethlem v. Roxbury, 20 Conn. 298.
1 If the father offers to maintain the child, and the authorities decline to deliver it to the parent for that purpose, they cannot charge the father for its subsequent maintenance. Bownes 0. Marsh, 10 Ad. & El. N. S. 787.
nity, and were borrowed from the several English statutes on the subject; and similar regulations to coerce the putative father to maintain the child, and indemnify the town or parish, have been adopted in the several states.
The father of a bastard child is liable upon his implied contract, for its necessary maintenance, without any compulsory order being made upon him, provided he has adopted the child as his own, and acquiesced in any particular disposition of it. (b) The adoption must be voluntary, and with the consent of the mother, for the putative father has no legal right to the custody of a bastard child, in opposition to the claim of the mother;2 and except the cases of the intervention of the town officers, under the statute of provisions, or under the implied contract founded on the adoption of the child, the mother has no power to compel the putative father to support the child. (c) She has a right to the custody and control of it as against the putative father, and is bound to maintain it as * its natural guardian ; (a) though * 216 perhaps the putative father might assert a right to the custody of the child as against a stranger. (6)
(6) Hesketh v. Gowing, 5 Esp. N. P. 131. But except in such a special case, the putative father is not liable except upon an express promise, or upon an order of filiation under the statute. Cameron v. Baker, 3 Carr. & Payne, 36. Furillio v. Crowther, 7 Dowl. & Ryl. 612. Moncrief v. Ely, 19 Wend. 405.8
(c) In England, under the statute of 4 & 5 Wm. IV. ch. 76, the mother of a bastard child had no remedy against the father for its maintenance. But by the statute of 7 & 8 Vict, ch. 101, the mother has relief, and the father may be summoned before the petty sessions, and ordered to pay 5s. for each of the first six weeks after birth, 12s 6d. for every subsequent week until the child is thirteen years of age. The money is to be paid to the mother, and may be recovered from the father by distress and imprisonment. This is a just and wise improvement in the law.
(a) The King v. Soper, 5 Term, 278. Ex parte Ann Knee, 4 Bos. & Pull. 148. The People v. Landt, 2 Johns. 375.. Carpenter v. Whitman, 15 Johns. 208. Wright v. Wright, 2 Mass. 109. Mass. Revised Statutes, 1836. Acosta v. Robin, 19 Martin (Louis.) 387. The power of the putative father over the illegitimate child was denied in the Roman law, and it is equally so in the Spanish law. Ibid.
(6) Rex v. Cornforth, Str. 1162. A person standing in loco parentis has been allowed to maintain an action on the case per quod servitium amisit, for the abduction of his daughter's illegitimate offspring. Moritz v. Garnhart, 7 Watts, 302.
· The People v. Kling, 6 Barb. S. C. 366. The court, in such cases, is authorized to exer. cise a sound discretion as to the custody of the child. The right of the mother was sus. tained in Robalina v. Armstrong, (15 Barb. 247,) in opposition to the claim of the putative father.
• Wiggins v. Keizer, 6 Porter, (Ind.) 252.
There are cases in which the courts of equity have regarded bastards as having strong claims to equitable protection, and have decreed a specific performance of voluntary settlements made by the father in favor of the mother of his natural child. (c) On the other hand, there are cases in which the courts of equity have withheld from the illegitimate child every favorable intendment which the lawful heir would have been entitled to as of course. Thus, in Fursaker v. Robinson, (d) a natural daughter brought her bill against the heir at law, to a supply a defective conveyance from her father to her, but the chancellor refused to assist her, on the ground that she was a mere stranger, being nullius filia, and not taken notice of by the law as a daughter, and that the father was not under any legal obligation to provide for her as a child, though he might be obliged by the law of nature, and so the conveyance was voluntary, and without any consideration. This hard decision was made by Lord Cowper, in 1717; but the language of Lord Ch. J. King, in a subsequent case, to which I have just
alluded, (e) is certainly much more conformable to justice * 217 and humanity. “If a man,” says he, *“ does mislead an
innocent woman, it is both reason and justice that he should make her reparation. The case is stronger in respect to the inno cent child, whom the father has occasioned to be brought into the world in this shameful manner, and for whom, in justice, he ought to provide.” In Knye v. Moore, (a) the vice chancellor, in pursuance of the doctrine of Lord King, assisted to uphold and enforce a deed by the father, making provision for the mother and his illegitimate children after his death. So, in Pratt v. Flamer, (b) a devise by the father to an unborn illegitimate child, in which the mother was described, was held valid; and there are other cases in which bequests by will, in favor of illegitimate children, have been liberally sustained. (c)
(c) Marchioness of Annandale v. Harris, 2 P. Wms. 432. Harten v. Gibson, 4 Desaus. 139. Bunn v. Winthrop, 1 Johns. Ch.. 338.
(d) Prec. in Ch. 475. 1 Eq. Cas. Abr. 123, pl. 9. Gib. Eq. 139, 256.
(c) Beachcroft v. Beachcroft, 1 Madd. 234, Phil ed. 430, London ed. Gardner v. Heyer, 2 Paige, 11. But in Wilkinson v. Wilkinson, before Vice Ch. Bruce, 1842, a provision in favor of future illegitimate children was held to be clearly void. N. Y. Legal Observer, vol. i. 191. i Younge & Coll. Cas. in Ch. 657.1