U.S. Supreme Court Stevenson's Heirs v. Sullivant, 18 U.S. 5 Wheat. 207 207 (1820)
Stevenson's Heirs v. Sullivant
18 U.S. (5 Wheat.) 207
APPEAL FROM THE
CIRCUIT COURT OF OHIO
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 decease, 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 H.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 being 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 nineteenth section of the Act of Descents of Virginia, 1785, which took effect on the first of January, 1787.
The appellants were not, as illegitimate children of H.S. & R.A.W., capable of inheriting from R.S. under the Act of Descents of Virginia.
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 cause, whom he recognized
as his children. In July, 1775, he made his will, in which he described the appellants as the children of himself 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 and the birth of Richard, a warrant for 6,666 2/3 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. JUSTICE WASHINGTON 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 favorable to the claim of the appellants than that of
Virginia, 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 appellants object to the decree of the court below upon the following grounds:
1. That the land warrants ought to have been 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 under the will of Hugh Stephenson; such a claim would be clearly inadmissible inasmuch as the testator was not only not seized 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 so far operates upon the subject as to name them the representatives of the testator and to render them 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
and receive the same quantity of land as would have been due to such officer, &c.;, had be been living.
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 his 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 1 January, 1787. This section declares that
"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."
There can be no doubt but that the section applied to bastards in esse at the time the law came into operation, as well as to such as might thereafter be born. But it is contended by the counsel for the appellants that the section is in every other respect prospective not only as to the fact of legitimation, but as to the two circumstances of marriage and recognition, which entitle the bastard to the benefits of the law, and consequently that to bring a case within the operation of this section, both the marriage and recognition must take place after 1 January, 1787. On the other side, it is admitted that the privilege of legitimation is not conferred upon a bastard prior to the above period, but it is insisted that, as to the marriage and recognition, the law should be construed as well retrospectively as prospectively.
In the case of Rice v. Efford, decided in the Court of Appeals of Virginia, 3 Henn. & Munf. 225, the marriage took place prior to 1 January, 1787, but the father recognized his illegitimate children and died after that period. The whole court seem to have been of opinion, that the word "afterwards" referred not to a time subsequent to 1 January, 1787, but to the birth of the children, and therefore that the marriage, though prior to that period, legitimated
the children before born if they should be recognized by the father. But it was stated by judge Roane in giving his opinion that the construction of the act applies only to cases where the father has died posterior to 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 1 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 be 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 some respects at least, partake of the character
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 3d question is are the appellants, as bastards, 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 the construction of this section, it is never to be lost sight of that the appellants are to be considered as bastards, liable to all the disabilities to which the common law subjects them as such except those from 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? We understand it to be that they shall have a capacity to take real property by descent immediately or through their mother in 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 descent of real property in the paternal or maternal
line. 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 and 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 nevertheless, 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 were their brother, they would not inherit their estate under this section, on the part 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
her, nor did it pass through her in the course of descent to the bastard children.