49 ents of an illegitimate child did not legitimate such issue. It is notorious that the Barons at Merton, in 1235, expressly refused to receive the civil law on this point in the celebrated words, "Nolumus leges Angliæ mutari.” 59 Marriages within the forbidden degree are, in New York, absolutely void, and the children of such marriages illegitimate.51 But where a marriage is only avoided by decree of the court, the prior issue are not illegitimate. Before the Revised Statutes, when the common law prevailed, a bastard could not inherit. He was nullius," or "filius populi" or even "filius terrâ." 53 52 filius Legitimation per Subsequens Matrimonium. In the modern Latin States the principle of the Roman law,5 "that a subsequent marriage of parents legitimates their prior offspring," prevails. It is also the law of Scotland, and it is, as such, recognized on Scotch appeals to the House of Lords, where the rule, "legitimatio per subsequens matrimonium," is frequently applied to intestate succession by Scotchmen.55 This principle is also recognized by the courts of New York, in a proper case where the law of the domicile of origin is applied. So rational is the principle of the Roman law, touching legitimation of children by subsequent marriage of their parents, that it was in 1895 converted 49 I Black. Comm. 454; 2 Kent Comm. 208; Miller v. Miller, 18 Hun, 507; s. c. revd., 91 N. Y. 315; Fortescue "De Laudibus," etc., chap. 39. and note by Amos, p. 156, ibid; Doctor & Student, Dialogue 1, chap. 7; I Wooddeson, Law Lect. 236; Hale's Hist. Com. Law, 52. Cf. Bollerman v. Blake, 24 Hun, 187, 94 N. Y. 624. 50 Selden, chap. 9, § 2; Stubbs, Const. Hist. II, 52; Scrutton, 72. 56 531 Black. Comm. 454; 2 id. 247; Co. Litt. 8a; 2 Kent Comm. 212, and cases cited below under this section. 54 C. 5, 27, 10; Nov. 89, 8; 78, 3; 12, 4; Miller v. Miller, 18 Hun, 507, 520; s. c., 91 N. Y. 315; 1 Wooddeson, Law Lect. 233 seq. 55 See note II, 2 Wend. Black. 248; Lauderdale Peerages, L. R., 10 App. Cas. 692; s. c., 17 Abb. N. C. 439. 56 Miller v. Miller, 91 N. Y. 315; s. C., 18 Hun, 507, 520, revd., Olmstead v. Olmstead, 190 N. Y. 458. Cf. Bollerman v. Blake, 24 Hun, 187, 23 Alb. L. J. 165. 66 into a law of this State by statute,57 and it is now perpetuated by the Domestic Relations Law." 58 These acts are not retroactive, and they saved vested rights either of administration or in estates of persons, under prior limitations to such parents, with remainders over for defaults of issue, etc.59 60 A legitimation per subsequens matrimonium under chapter 531, Laws of 1895, and its several re-enactments, does not operate to defeat rights vested prior to that act. Where a will was made before the statute but testator died after it, it was held that a devise of remainder "to lawful issue" did not entitle an illegitimate son whose parents had intermarried before the statute to take the remainder.61 64 In order to legitimate issue, the subsequent marriage must be that of the putative parents.2 Children thus made legitimate by statute do not take under this section of this act, but they take as legitimate lineal descendants under the Table of Descents, now embodied in section 81 of this act. How far a statutory legitimation by a subsequent marriage of the parents entitles such issue to take real estate, situated in another State, by comity, is the subject of an interesting monograph, to which it may be useful to refer.65 In Pennsylvania and other States, it has been held that such legitimation, under the laws of a foreign State, produces no such result in Pennsylvania or such other States; but such is not the rule in New York.66 57 Chap. 531, Laws of 1895. 58 Chap. 272, Laws of 1896, being chap. 48 of "The General Laws," § 18, amd., chap. 725, Laws of 1899; chap. 742, Laws of 1907; all now $ 24, chap. 14, Consol. Laws, as enacted by chap. 19, Laws of 1909. 59 Ferrie v. The Pub. Admr., 3 Bradf. 249; Wissel v. Ott, 34 App. Div. 159; Matter of Barringer, 29 Misc. 457. Cf. Smith v. Lansing, 24 id. 566. 60 Wissel v. Ott, 34 App. Div. 159. Cf. Matter of Barringer, 29 Misc. 457: Matter of Schmidt, 42 id. 463. 61 U. S. Trust Co. v. Maxwell, 26 Misc. 76. 62 Matter of Pfarr, 38 Misc. 223; Matter of Del Genovese, 56 id. 418. 63 § 89, Decedent Estate Law. 64 Townsend v. Van Buskirk, 33 Misc. 287. 65 23 Alb. L. J. 165; and see Matter of Hall, 61 App. Div. 266, 277; Olmsted v. Olmsted, 118 id. 69, 190 N. Y. 458. 66 Smith v. Dorr's Admr., 34 Pa. St. 126; Barnum v. Barnum, 42 Md. 250; Lingin v. Lingin, 45 Ala. 410; Stoltz v. Doehring, 112 Ill. 603. Cf. Scott v. Key, II La. 232; Miller v. Miller, 91 N. Y. 315; Matter of Lutz, 43 Misc. 230; Olmsted v. Olmsted, 100 N. Y. 458. Foreign Legitimation. If a child is legitimated, under the laws of a foreign country, where the marriage took place and the putative parents are domiciled, he may inherit in this State as heir of the father provided the marriage of such parents is not polygamous, incestuous or prohibited by law.68 69 Status of Legitimacy. Children are always presumed to be legitimate until the contrary is shown. A recognition by the family, general reputation, matrimonial cohabitation of parents, are sufficient to establish legitimacy in this State, especialy after a great lapse of time.70 In this State, concensus, non concubitus, facit matrimonium," and the maxim, "omnia præsumuntur pro matrimonio," is very liberally applied in order to legitimate children.72 Mother the Heir, When. At common law an intestate bastard was incapable of transmitting real and personal property, except to his wife and lineal descendants.73 But when the status of illegitimacy is once fixed upon a male child, his mother, if living, is, under this section, his universal heir, unless he leaves lawful issue surviving. Neither the illegitimate children of an illegitimate male nor his collaterals, however, inherit from him, under this section, but his mother, or her stock, excludes them in the succes 74 67 Bates v. Virolet, 33 App. Div. 436; Matter of Hall, 61 id. 266, 276. 68 Olmsted v. Olmsted, 190 N. Y. 458. 69 Cross v. Cross, 3 Paige, 139; Montgomery v. Montgomery, 3 Barb. Ch. 132; Davis v. Davis, 27 Misc. 455; Tully v. Tully, 28 id. 54; Matter of Rawson, 29 id. 534, 540; Matter of Kelley, 46 id. 541; Mayer v. Davis, 122 App. Div. 393. 70 Gall v. Gall, 114 N. Y. 109, 118; Hynes v. McDermott, 91 id. 451, 459; Cramsey v. Sterling, 11 App. Div. 568, 576; Geiger v. Ryan, 123 id. 722. 71 Fenton v. Reed, 4 Johns. 52; Gall v. Gall, 114 N. Y. 109. 72 Caujolle v. Ferrié, 23 N. Y. 90, 95; Hynes v. McDermott, 91 id. 451; Montgomery v. Montgomery, 3 Barb. Ch. 132; Matter of Schmidt, 42 Misc. 463; Tracy v. Frey, 95 App. Div. 579; Mayer v. Davis, 119 id. 96, 122 id. 393; Matter of Garner, 59 Misc. 116; Matter of Spink, 62 id. 158. Cf. Osborne v. McDonald, 159 Fed. Rep. 391. 73 Wooddeson, Law Lect. 236, 237748 89, supra; Matter of Mericlo, 63 How. Pr. 62; St. John v. Northrup, 23 Barb. 25, 32; Rousseau v. Rouss, 180 N. Y. 116, 122. sion. But the mother of an illegitimate female does not inherit to the exclusion of the illegitimate offspring of such female. This section of the Decedent Estate Law covers that case. Sister Heir, When. If an illegitimate die intestate after his mother and leaving an only sister, born of the common mother, but no brother, the sister inherits, and has the right to administer. 76 Alien Mother of Illegitimate. If the mother be living and excluded by alienage, it seems that a brother of the deceased (but born in wedlock of the same mother) can not inherit." 75 Matter of Mericlo, 63 How. Pr. 62; Miller v. Miller, 18 Hun, 507, 516; St. John v. Northrup, 23 Barb. 25, 32; Kiah v. Grenier, 56 N. Y. 220, 224. 76 Matter of Lutz, 43 Misc. 230. 77 St. John v. Northrup, 23 Barb. 32. § 90. Relatives of the half-blood. Relatives of the halfblood and their descendants, shall inherit equally with those of the whole blood and their descendants, in the same degree, unless the inheritance came to the intestate by descent, devise or gift from an ancestor; in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance. Formerly $ 290, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896: 8290. Relatives of the half-blood.- Relatives of the half-blood and their descendants, shall inherit equally with those of the whole blood and their descendants, in the same degree, unless the inheritance came to the intestate by descent, devise or gift from an ancestor; in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance.78 § 290 was formerly 1 Revised Statutes, 753, § 15: § 15. Relatives of the half-blood shall inherit equally with those of the whole blood in the same degree; and the descendants of such relatives shall inherit in the same manner as the descendants of the whole blood; unless the inheritance came to the intestate by descent, devise, or gift of some one of his ancestors; in which case, all those who are not of the blood of such ancestors, shall be excluded from such inheritance.79 Rule V of Descents. The rule that collaterals of the half blood are now admitted into the existing "Table of Descents," 80 although subject to the provision that such collaterals of the half blood are excluded when the inheritance came to intestate by descent, devise or gift from an immediate ancestor not of their blood, forms Rule V of the existing canons of descent, it being an innovation on the common law of descents.81 Rule V of Descents is fully and clearly expressed in this section of the Decedent Estate Law, and needs no paraphrase. Account of Section 90, Decedent Estate Law. The English common law did not admit those of the half blood into collateral 78 Repealed by § 130, Decedent Estate Law. 79 Repealed, chap. 547, Laws of 8081, Decedent Estate Law. |