Stevenson's

1820. as his children. In July, 1775, he made his will, in which he described the appellants as the children Heirs of himself, and of his wife Ann, and devised the Sullivant. whole of his property to them, and to their mother.

v.

Feb. 18th.

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 and two-thirds 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. Brush, for the appellants, stated, that the appellants insisted, that, as representatives of their father, Hugh, the warrant in question ought to have issued to them. All the laws of Virginia, granting military land bounties, were passed after the death of Hugh Stephenson. The act which extends the bounty to those who had died before any bounty was

1820.

Heirs

v.

provided, is that under which the warrant issued. It assigns the bounty to the "legal representatives" of Stevenson's the person upon account of whose services it was granted. We maintain, that the term, representa- Sullivants tives, is used purposely not to exclude the heir, but to embrace others than the legal heir, under the then existing laws. It never could be intended to give a bounty to elder brothers and uncles, who might be in arms against the country; but to the immediate objects of the soldier's attention and care, whom, by his will, he had appointed to represent him, or to that class of relatives, among whom personal property was distributed by the statute of distributions; certainly more just and liberal in its provisions, than the feudal course of descents, by which real estate was cast on the eldest male relative in a collateral line. But, waving this point, the complainants maintain that they are heirs at law of Richard Stephenson. And they maintain this upon two grounds. First. By the Virginia law, regulating the course of descents, passed in 1785, they were legitimated: Second. By the same law, as bastards, they were made capable of inheriting to their deceased brother, on the part of the mother.

1. The ancestor of Richard never had any interest in the subject that constitutes the estate. It is a gratuity given to his representative, who most clearly took as a purchaser, and the estate he held, upon his decease, passed to his heirs generally, without reference to the channel through which he derived it. The estate originated under the laws of Virginia. The parties resided in Virginia, until the establishment of

1820.

Stevenson's

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

1820.

Stevenson's
Heirs
v.
Sullivant.

1820.

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

Stevenson's
Heirs

v.

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