that is, the son of no one, or as he is sometimes termed, filius populi, that is, the son of the people, (or any one else that has no kindred,) dies intestate, and without wife or child, it hath formerly been held, that the ordinary might seize his goods, and dispose of them in pios usus, or in pious uses. But the usual course now is, for some one to procure letters patent or other authority from the king; and then the ordinary of course grants administration to such appointee of the crowns (7). Hence it may be perceived, that a bastard is utterly incapable of taking any real estate by descent, and that he cannot be heir to any one; neither can he be entitled to any share in the distribution of an intestate's personal estate; when born he is capable of taking by devise, and the lawful issue of a bastard is capable of inheriting or taking by descent or otherwise such estate as the parent might die possessed of, but no person except his wife or lawful issue can claim any part of his estate as kindred; for he can have no collateral kindred.- Bastards are children born out of wedlock, or before matrimony; but if a child be begotten while the parents are single, who afterwards marry, and thereby the child is born in lawful wedlock, he is no bastardt. And children born so long after the death of the husband, that by the usual course of gestation, they could not be begotten by him, are bastards. But this being a matter of some uncertainty, the law is not exact as to a few days" (8). So s 2 Black. Com. 505. Doug. Rep. 542. 2d edit. t Co. Litt. 244. (7) Where a person of legitimate birth dies intestate without next of kin, and leaves no widow, or a bastard dies intestate without issue and not leaving a widow, the king, as ultimus hæres, becoming entitled to what would otherwise have gone to the next of kin, will, in either case, take the whole of the intestate's personal estate, subject to his debts. Megit v. Johnson, Dougl. 548. Rex v. Bank of England, Ibid. 526. 4 Burn's Eccl. Law, 474. (8) In Alsop v. Stacy, Palm. 9. a child born 40 weeks and ten days after the husband's death was held legitimate, upon children born during wedlock may in some circumstances be bastards: as in case the husband be out of the kingdom of England (or, as it is commonly phrased, without the four seas) for above nine months, so that access to his wife cannot be presumed, her issue, during that period, will be bastards (9). But generally during the coverture access of the husband is presumed, unless the contrary be proved". V ▾ Co. Litt. 244. w 3 P. Will. 276. Stra. 925. the principle that courts are always in favour of legitimacy. (9) The doctrine that unless the husband was out of the kingdom during the whole time of gestation, access must be presumed, and the child must be deemed legitimate, being upon examination found unsatisfactory, has been long exploded; and it is now holden that non-access (that is, the non-existence of sexual intercourse) may be proved to bastardize the issue, although it should appear that the husband was within the kingdom during the whole period of gestation. Pendrell v. Pendrell, Stra. 905. Rex v. Bedall, Ibid. 1076. Goodright v. Saul, 4 T. R. 356. The general principle to be deduced from the authorities on this subject, as it was laid down and confirmed by the case of The King v. Luffe, 8 East, 193. appears to be this, that where there are circumstances which shew an impossibility that the husband could be the father, whether arising from his being under the age of puberty, or from his labouring under disability occasioned by natural infirmity, or from the length of time elapsed since his death, or from his continued absence, or from the birth of a child very shortly after he had access, the presumption in favour of legitimacy is at an end, and the child will be deemed illegitimate. And this point has been since established by the opinion of the judges in the case of the Banbury claim of peerage, in which it was held, that where the husband and wife are not proved to be impotent, and have had opportunity of access to each other during the period in which a child could be begotten and born in the course of nature, the presumption of legitimacy, arising from the birth of the child during wedlock, may be rebutted by circumstances inducing a contrary presumption, and the fact of non-access, or of non-generating access, as well as the fact of impotency, may always be lawfully proved by In case of a divorce in the spiritual court a vinculo matrimonii, or from the band of matrimony, all the issue born during the coverture are bastards, for such an absolute annulling of the marriage can only take place where some cause is shewn, which made the marriage unlawful from the beginning (10). Besides what has been mentioned concerning bastards, it should be observed, that it must be consanguinity or relationship by blood, and not affinity, or relationship by marriage, whereby persons may be entitled as kindred to an intestate's estate; for as to such as have married with any of the intestate's family or relations who have died before him, no advantage can accrue to them by such marriage; for example, suppose A was to die intestate, and the only issue he ever had were a son and a daughter, both of whom had married, and died before him, leaving a wife and husband, who survived him; neither this wife nor husband would have any part of A's real or personal estate, but his wife (if such were living,) would have the whole; but if none of them were living, the whole personal estate would go to his next of kindred in such manner as has been shewn, and the real estate to such as are described in the ensuing chapter. And if A had died intestate without wife or child, and his only kindred had been a brother and sister, both of whom had married and died before him, leaving means of such legal evidence, as is strictly admissible in every other case where a physical fact is to be proved. Selw. N. P. (5th ed.) 731. See also Head v. Head, 1 Simons and Stuart, 150. (10) And after a divorce a mensa et thoro, it is the intendment of law, that the parties did not cohabit in disobedience to the sentence of the Ecclesiastical Court, and therefore children subsequently born are prima fácie bastards; yet if actual access, though contrary to such sentence, should be expressly proved, the former presumption is destroyed, and the issue are accounted legitimate; for the relation of husband and wife is not dissolved. See 1 Woodd. Lect. 392. Parish of St. George v. St. Margaret, 1 Salk. 123. a wife and husband, who had survived him; neither this wife nor husband would be entitled to any part of A's estate; but in this case he would die without kindred, and his real estate would escheat to the king, or lord of the manor, or any other person who might be entitled thereto by virtue of any grant from the crown, and his personal estate would vest in the king, as we have lately hinted; and thus it would be in respect to the husband of A's mother, and the husband or wife of any one that were his next of kin, and had married and died before him. But in case his son or daughter, brother, sister, or mother, or any other who were his next of kin, had survived him, and died in ever so short a time after, then the husband or wife of him, or she that had survived him, might be entitled; that is, the husband in right of the wife, and the wife in respect of her husband; but neither of them as being of kin to A. The right of the distributive share vests immediately on the intestate's death. Although by the statute no distribution is to be made within a year; yet the share of the deceased person is an interest vested and transmissible to his executors or administrators. CHAPTER IV. OF THE DESCENT OF REAL ESTATES, OR ESTATES OF INHERITANCE. HOW THE LAW DISPOSES THEREOF TO THE HEIR; THE HUSBAND OF A DECEASED WIFE, AND THE WIFE OF A DECEASED HUSBAND. SECTION I. How the Law disposes of the Inheritance to the Heir. ALL freehold estates are called real estates, and may be of inheritance, or not of inheritance. The principal freehold estates of inheritance are fee-simple and fee-tail. There are also estates of inheritance, which descend according to the custom of gavelkind, borough-english, and the customs of manors, yet do not all come under the legal description of freehold; with those latter, as well as the former, an administrator, as such, has no concern, except it be with the estate held pur auter vie. To avoid confusion, those latter estates will be defined towards the end of this chapter. Fee-simple is where a man hath lands, tenements, or hereditaments, (the latter of which comprehend not only all kinds of grounds, as arable or ploughed ground, meadows, pastures, woods, moors, marshes, and all kinds of houses, edifices, or buildings, which are called corporeal hereditaments, but also advowsons or rights of presentation to churches, commons, ways, offices, dignities, pensions, annuities, and rents, which are called incorporeal hereditaments); to hold to him and his heirs for ever, generally, absolutely, and simply, without any particular heirs being mentioned, but that being referred to his own pleasure, or the disposition of the law, in case he makes no disposition thereof himself, as he may to whom he thinks fit. And hence we may perceive, that this estate may consist both of corporeal and incorporeal hereditaments, or either. But no person can be properly such an ancestor, as that an inheritance in lands or tenements can be derived from him, unless he hath had actual seisin of such lands, either by his own entry, or by the possession of his own or his ancestor's lessee for years, or by receiving rent from a lessee of the freehold; or unless he hath had what is equivalent to corporeal seisin in hereditaments that are incorporeal; such as the receipt of rent, a presentation to the church in case of an advowson, and the like. And therefore all the cases which will be hereafter mentioned (respecting descent to the heir), are upon the supposition that the deceased was the last person actually seised of the inheritance. For the law requires this notoriety of possession, as evidence that the a 2 Black. Com, 209. |