legitimation have been passed by some of the state legislatures in the United States. As persons thus legitimated move from land to land, and claim by force of descent property in various countries, interesting questions in this respect are likely to constantly arise. These questions are often very complex. (1.) The child may be born, before the parents' marriage, in their domicil in a country where subsequent marriage does not work legitimation; the parents may subsequently marry in such country, and then move to a domicil where marriage has such retrospective legitimating effect. (2.) Or, after the birth of the child, they may move to such second legitimating domicil, and there marry. (3.) Or, by the law of the domicil, both of the birth and of the marriage, such legitimation may ensue. (4.) Or, after the birth of the child in such legitimating domicil, the parents may move to a domicil where the law has no such retrospective force, and there marry. (5.) Or a child may be born illegitimate in a state which does not admit legitimation by subsequent marriage; but the father is domiciled in a state which admits of such legitimation, and afterwards, retaining such domicil, marries the mother in the state which does not admit such legitimation. In considering these contingencies, the older jurists have indulged in conflicting speculations which have been faithfully given by Judge Story, and which it is not necessary here to reproduce.1 It will

1 §§ 93 et seq. In Massachusetts, the principal at his death to his lawif the parents of illegitimate children ful heirs.' After the Revised Statintermarry, and the father acknowl- utes took effect, the son, whose domedge them as his, the children, by St. icil also was and continued to be in 1853, c. 253, are legitimated to all in this commonwealth, had two illegititents and purposes. Monson v. Pal- mate children in Germany by a Germer, 8 Allen (Mass.), 551. Subseman woman, and afterwards married quent marriage and acknowledgment, her there in a form authorized by the legitimate in Kentucky anterior chil- law of the place, and there acknowldren. Dannelli v. Dannelli, 4 Bush edged them as his children. This (Ky.), 51. And so in Louisiana. court held that by the Rev. Sts. c. 61, Caballero's Succession, 24 La. An. § 4, such children must be deemed legitimate for all purposes, except of taking by inheritance as representing one of the parents any part of the estate of the kindred, lineal or collateral, of such parent; and that the children took directly under the will of their grandfather, and not as the represen

573.

"In Loring v. Thorndike, 5 Allen, 257, a testator domiciled in this commonwealth, by a will admitted to probate before the Revised Statutes were passed, bequeathed a sum in trust to pay the income to his son for life, and

be sufficient, at this moment, to state what, in this respect, is the present English and American law; and what are the positions taken by those German and French jurists who exercise a controlling authority on European practice.

§ 241. Legitimation by subsequent marriage takes place by English law only when permitted (1.) by the father's personal law at the time of the child's birth; and (2.) by his personal law at the time of the marriage.2 In this country the law in this relation

tatives of their father, and were therefore not within the exception of the statute, but were entitled to the benefit of the bequest." Gray, C. J., in Ross v. Ross, 129 Mass.

1 Wright, in re, 2 K. & J. 595; Udny v. Udny, L. R. 1 S. & D. A. 447; Goodman v. Goodman, 3 Giff. 643.

2 Dalhousie v. McDouall, 7 Cl. & F. 817; Munro v. Munro, 7 Cl. & F. 842. As to domicil of legitimated children, see supra, § 38.

The status of a child, with respect to its capacity to be legitimated by the subsequent marriage of its parents, depends wholly on the status of the putative father, not on that of the mother; and according to the English law, where, at the time of a bastard's birth, the father has his domicil in England, no subsequent change of domicil can render practicable the bastard's legitimation. Udny ». Udny, 1 S. & D. Ap. 441.

S., when domiciled in England, had three children by T., a woman with whom he there cohabited. He subsequently became domiciled in Holland, where he married T., and, before and after such marriage, had other children by her. It was held by the court, that as the law of Holland admitted of retroactive legitimation by marriage, all the children born during the Holland domicil were legitimate; but as the test was the period of

In England both place

laws of

of birth and of

marriage cur to ef

must con- i

the child's birth, those born in England were illegitimate. The question was, not inheritance to realty, but right to take under a bequest to the children of S. Goodman v. Goodman, 3 Giff. 643. That children illegitimate by the law of the domicil of their birth cannot be subsequently legitimated by their parents' change of domicil to a state where such legitimation is the law, and their subsequent marriage in such state, is ruled also in Munro v. Sanders, 6 Bligh, 468.

On the same state of facts it is now finally held, that "brothers' and sisters' children," in the English statute of distributions, means children legitimate by English law. Goodman, in re, L. R. 14 Ch. D. 619; 43 L. T. 14.

we

In Ross v. Ross, 129 Mass. have the following criticism by Gray, C. J.:

"The leading case in Great Britain on this subject is Shedden v. Patrick, briefly reported in Morison's Dict. Dec. Foreign, App. I. No. 6, and more fully in 5 Paton, 194, which was decided by the House of Lords, on appeal from the Scotch Court of Session, in 1808, and in which a Scotchman, owning land in Scotland, became domiciled in New York, and there cohabited with an American woman, had a son by her, and afterwards married her, and died there; and the son was held not entitled to inherit

fect such legitimation.

is unsettled. We have an Alabama ruling consistent with the position that the law of the father's domicil

his land in Scotland. Two questions were argued 1st. Whether the plaintiff, being by the law of the country where he was born, and where his parents were domiciled at the time of his birth and of their subsequent marriage, a bastard and not made legitimate by such marriage, could inherit as a legitimate son in Scotland, the law of which allows legitimation by subsequent matrimony. 2d. Whether, being a bastard, and therefore nullius filius at the time of his birth in America, he was an alien and therefore incapable of inheriting land in Great Britain; the act of Parliament of 4 Geo. II. c. 21, making only those children, born out of the ligeance of the British crown, natural-born subjects, whose fathers were such subjects' at the time of the birth of such children respectively.' The Court of Session decided the case upon the first ground. In the House of Lords, after full argument of both questions by Fletcher and Brougham for the appellant, and by Romilly and Nolan for the respondent, Lord Chancellor Eldon, speaking for himself and Lord Redesdale, said that, as it was not usual to state any reasons for aflirming the judgment of the court below, he should merely observe that the decision in this case would not be a precedent for any other which was not precisely the same in all its circumstances,' and thereupon moved that the judgment of the Court of Session should be affirmed, which was accordingly ordered. On a suit brought forty years afterwards by the same plaintiff against the same defendant, to set aside that judgment for fraud in procuring it, the House of Lords in 1854, without discussing the first point ex

cept so far as it bore upon the question whether there had been any fraudulent suppression of facts relating to the father's domicil, held that the plaintiff was an alien at the time of his birth, and could not be afterwards naturalized except by act of parliament. Shedden v. Patrick, 1 Macq. 535.

But the remark of Lord Eldon above quoted, in moving judgment in the original case, and the statements made in subsequent cases by him, by Lord Redesdale, who concurred in that judgment, and by Lord Brougham, who was of counsel in that case, clearly show that the judgment in the House of Lords, as well as in the Court of Session, went upon the ground that the child was illegitimate because the law of the foreign country, in which the father was domiciled at the time of the birth of the child and of the subsequent marriage of the parents, did not allow legitimation by subsequent matrimony. Lord Eldon's judgment in the Strathmore Peerage case, 4 Wils. & Sh. App. 89-91, 95; S. C., 6 Paton, 645, 656, 657, 662. Lord Redesdale's judgment in S. C. 4 Wils. & Sh. App. 93, 94, and 6 Paton, 660, 661; expounded by Lord Lyndhurst, in the presence and with the concurrence of Lord Eldon, in Rose v. Ross, 4 Wils. & Sh. 289, 295-297, 299; S. C. nom. Munro v. Saunders, 6 Bligh N. R. 468, 472– 475, 478. Lord Brougham in Doe v. Vardill, 2 Cl. & Fin. 571, 587, 592, 595, 600; S. C., 9 Bligh N. R. 32, 75, 80, 83; in Munro v. Munro, 7 Cl. & Fin. 842, 885; S. C., 1 Robinson H. L. 492, 615; and in Shedden v. Patrick, 1 Macq. 622.

"That decision is wholly inconsist

at the time of birth controls, though the case may be placed on the ground that in matters of succession the law of the decedent's last domicil determines.1 Judge Story contents himself with giving at large on this point the views of prior jurists with. out advancing a positive opinion of his own. He intimates, however, that the law of the place of the birth of the child, and not the law of the place of the marriage of the parents, is to decide whether a subsequent marriage will legitimate a child or not.2 But this is based on English decisions, which, as we have seen, now tend to the conclusion that the applicatory law is that of

the father's domicil at the time of marriage and the time of birth, and not that of the place of birth itself. Mr. Wheaton's general statement is that "legitimacy or illegitimacy" are among "universal personal qualities;" and "that the laws of the state affecting all these personal qualities of its subjects travel with them wherever they go, and attach to them in whatever country they may be resident." 1

If we look at the matter on principle, it is hard to see how the law of the father's domicil at the time of the child's birth can affect the issue. It is a petitio principii to say that the father's domicil at the time controls, since the question of fatherhood is not determined until afterwards on the marriage and recognition.2 § 242. In a celebrated case, which was decided finally in the In respect English House of Lords in 1840, it was determined tate, terri- that a legitimation by a subsequent marriage, though

to real es

1 Ed. 1863, 172.

2 The rulings of Lord Hatherley in Wright, in re, and Udny v. Udny, are shown by Mr. Westlake (1880, p. 85) to be founded on a misapprehension of prior rulings.

In Ross v. Ross, 129 Mass. Gray, C. J., said: "It may require grave consideration, when the question shall arise whether the legitimacy of a child, depending upon marriage of its parents or other act of acknowledgment after its birth, should not be determined by the law of the domicil at the time of the act which effects the legitimation, rather than by the law of the domicil at the time of the birth, or even of the marriage, when some other acknowledgment is necessary. See Sir Samuel Romilly's argument in Shedden v. Patrick, 5 Paton, 205; printed more at length in 1 Macq. 556-558; Lord Brougham in Munro v. Munro, 7 Cl. & Fin. 882; S. C., 1 Robinson H. L. 612; Lord St. Leonards in Shedden v. Patrick, 1 Macq. 641; Stevenson v. Sullivant, 5 Wheat. 207, 259; 2 Touillier Droit Civil (5th ed.) 217; Savigny's Private

International Law, § 380 (Guthrie's ed.), 250 and note, 260."

In Smith v. Kelly, 23 Miss. 167, where, at the time of the birth of an illegitimate child and of the subsequent marriage of its parents, they were domiciled in South Carolina, in which such marriage did not make the child legitimate, and afterwards removed with the child to Mississippi, by the law of which state subsequent marriage of the parents and acknowledgment of the child by the father would legitimate it, and the child was always recognized by the father as his child, it was held that the child, having had the status of illegitimacy in South Carolina, retained that status in Mississippi, and could not inherit or succeed to either real or personal property in Mississippi. See Scott v. Key, 11 La. An. 232, cited infra, § 250.

8 Birtwhistle v. Vardill, 7 Cl. & F. 940. This case was first heard in 1826, 5 B. & C. 438, and in 1830 in the House of Lords, 2 Cl. & F. 571. The appeal was then ordered to be further argued before the judges, and