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the State of Kentucky, where Richard died. The descent was cast, either under the laws of Virginia, Heirs or Kentucky; and, in this respect, they are the same. Sullivant. The act of 1785, provides, that "where a man

v.

having by a woman one or more children, shall afterwards intermarry with such woman, such child or children, if recognized by him, shall thereby be legitimated." In the case of Rice v. Efford, and in the case of Sleighs and Strider, cited by Judge Tucker, and given in a note, it is decided, that this act includes cases of births and marriages, antecedent to its passage. This is its plain and natural interpretation. It was meant, as the Judges say, " to protect and provide for "the innocent offspring of indiscreet parents, who had already made all the atonement in their power for their misconduct, by putting the children, whom the father recognized as his own, on the same footing as if born in lawful wedlock." It meant to put them on the same footing, not only as it respected their father's estate, but in relation to the estates of each other, and the estates of all their kindred. In both the cases above cited, the father died after the act of 1785 took effect; and, in that point, the present case is to be distinguished from them. It would appear, from the case of Rice v. Efford, that the Chancellor considered it a material point, that the recognition of the illegitimate children took place after the act of 1785 was in operation. And Judge Roane expressly says, that the interpretation adopted, "applies to cases only, where the father has died posterior to the passage of the act." This observation of Judge Roane may properly be termed an obiter dictum. The case before him did not require that point to be decided; and, we conceive, that the dictum is demonstrably incorrect, as is also the intimation of the Chancellor. The object of the act was to " protect and provide for the children," by giving them a complete capacity of inheritance. To give them this title, the law requires two facts; the marriage, and the recognition by the father. But, it is said, that although the law embraces the case of an anterior marriage, the recognition must be subsequent. Why this distinction? The grammatical construction of the sentence does not require it. The terms, " shall afterwards intermarry," are correctly referred to the birth of the children, not the date of the act. In relation to the marriage and the recognition, the statute speaks from the same time. The whole structure of the sentence necessarily connects them. The active participle, "having," in reference to the birth of the children, and the passive participle, recognized," in relation to their acknowledgment, are the only terms which could properly be used to describe both anterior and subsequent cases with reasonable precision. Surely it would be a strange construction, by which the active participle is made to embrace both the past and future, while the passive participle, in the same sentence, is confined to future cases only! This can only be done by interpolating the word hereafter, so as to make that part of the sentence read, " such child or children, if HEREAFTER recognized by him." The object of the statute does

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Heirs
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Sullivant. 1820.

Stevenson's
Heirs

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not require, but absolutely forbids such interpolation. It was designed, as the Court say, in the case of Stones v. Keeling, to establish the most liberal and Sullivant. extensive rules of succession to estates, " in favour of all, in whose favour the intestate himself, had he made a will, might have been supposed to be influenced." It operates solely upon the children, and it must have been designed to operate equally upon all in the same situation, whether the acknowledgment was made before or after the passing of the act. The dictum of Judge Roane, evidently grew out of an argument suggested by himself, that the interpretation adopted by the Court, might be considered an invasion of private right. We see no difficulty on this ground; but if there were any, it is not remedied by applying the act to cases only where the father died posterior to its passage.

The possible interest which children have in the father's property, during his lifetime, is not of that absolute character which the legislature cannot control. If it were, every change of the law of descents, would be an invasion of the rights of expectants under the existing law. A descent cast by the death of an intestate, cannot be disturbed by subsequent laws; but that is no reason why the legislature should not change the law, or give to individuals new capacities of inheritance. The security of existing rights remains inviolable, notwithstanding this is often done. By the death of H. Stephenson, before the act of 1785, his property passed

a 3 Henn. & Munf. 228. in note.

to his legitimate child. If, under that act, the ap- 1820. pellants were legitimated, in 1787, they, thereby, Stevenson's could not prejudice the rights of Richard. Their Heirs new capacity was altogether prospective. From Sullivant.

that day, they enjoyed a character to inherit rights which might thereafter accrue; and, in relation to those rights, we do not see what bearing the time of their father's death has upon the question. In the case of Sleighs v. Strider, W. Hall devised land to his son, R. Hall, for life; and after to his eldest son and his heirs forever: but if no male issue, to his eldest daughter and her heirs. Richard Hall had an illegitimate son born in 1776: in 1778 he married the mother, and recognised the son till his death, in 1796. He had also daughters after the marriage. It was determined that the son was legitimated, by the act of 1785, and entitled under the devise from his grandfather. It would seem, from the dictum of Judge Roane, that if Richard Hall had died before the 1st of January, 1787, the grandson never could have been legitimated. Whether he could or not, the eldest daughter must have taken. But suppose that the grandson had lived until 1788, and, in the lifetime of his father, had died leaving issue: would such issue, or the eldest daughter of Richard, have taken under the devise ? We maintain that the issue of the deceased son would have taken: from which we infer that the time of death is immaterial. The interpretation of the Virginia Courts can only be made rational and intelligible by rejecting the limitations suggested by the Chancellor and Judge

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Roane, and applying the statute to all persons within its literal meaning, without reference to the time of Heirs the recognition, or the death of the father. By this Sullivant. course, the new capacity, in all, will take date from the 1st of January, 1787, and will confer rights from that day only; as in cases that have arisen since the statute, the legitimate rights of the children, born before marriage, all take date from the marriage, without any reference to the time of recognition, or the death of the father.

2. We insist that the appellants, being the bastard brothers and sisters of Richard on the part of the mother, are his heirs at law. The law of 1785 contains this provision: "Bastards also shall be capable of inheriting and transmitting inheritance, on the part of the mother, in like manner as if lawfully begotten of such mother." In adopting a rule for the interpretation of this provision, we insist, in the language of the court, in the case of Stones v. Keeling," that "the act relates to the disposition of property only; and proceeds to show who shall be admitted to share the property of a person dying intestate, notwithstanding any former legal bar to a succession thereto; and in that light the law ought to receive the most liberal construction; it being evidently the design of the legislature, to establish the most liberal and extensive rules of succession to estates, in favour of all, in whose favour the intestate himself, had he made a will, might have been supposed to be influenced." It gives to bastards a full

a 3 Henn. & Munf. 228. note.