
    Ash v. Way’s Adm’rs & als.
    July Term, 1845,
    Lewisburg.
    Bastards — Recognition by Parent —Inheritance.—A bastard marries, and dies, leaving a legitimate child; and then the parents of the bastard marry. The father of the bastard, before the father’s marriage, and in the lifetime of the bastard,' recognizes her as his child; and so recognizes her after his marriage, which is after her death. Held. The child of the bastard may inherit through his mother, from her father.
    Robertson Way was the father of an illegitimate child named Mary Ann, by - one Nancy Edwards. ‘ This child *grew up, and married Erancis J. Ash; and died leaving one child" named James Ash. After the death of Mary- Ann, Robertson Way her father, married her mother, Nancy Edwards. Before his marriage, and during the life of Ma'ry Ann, Robertson Way frequently recognized her as his child, and after his marriage with her mother, and of course, after Mary Ann’s death, he recognized her as his daughter, and James Ash as his grandchild.
    Robertson Way died intestate: and James Ash by his next friend, filed this bill against the administrators of Way, and others; in which, after stating the foregoing facts, he claimed a distributable share of Robertson Way’s estate. The defendants demurred to the bill; and the Court below sustained the demurrer, and dismissed the bill. From this decree, the plaintiff obtained an appeal to this Court.
    The cause turned upon the construction to be given to the act, 1 Rev. Code, ch. 96, 1 19, p. 357 ; and was elaborately argued here, in writing, by Marshall, for the appellant, and Williams and Patton, for the appellees.
    Marshall, for the appellant.
    1. The word “children,” in the act, should be construed to embrace all “descendants;” so as to make a recognition of any descendants of such a connection, legitimate the descendants.
    The act is purely a remedial statute. Its object is in the highest degree humane; and dictated by sound public policy. And in applying to it the liberal principles of construction, to which, from its object, it is entitled, it should be construed to embrace all cases coming clearly within its policy. It surely needs no argument to prove that this act was intended to benefit the issue *or descendants of natural born children, as well as such children themselves. And in construing an act so humane, remedial, and politic, every reason which operates in the construction of a testator’s will, to give to the word “children” a meaning which will embrace the issue, will authorize a like liberal interpretation of the same word, in this statute.
    2. A recognition of the child by the father before the marriage, will, upon the subsequent marriage of the parents, legitimate the child.
    The language of the statute is not “if subsequently recognized by him.” It is, “if recognized by him.” Recognition either before or after marriage, will, therefore, satisfj' the language of the act.
    This clause in our statute is taken from the civil law. By the civil law, subsequent marriage of the parents rendered the prior born children legitimate, peremptorily, and absolutelj', against the consent of both parents and children. So, if a prior born child died before the marriage of the parents, still the child was legitimated ; and if there was issue of the child, such issue were the legitimate grandchildren of the father; and entitled to heirship as such. Hargrave’s Note to Coke Hitt. 245 a, and the authorities there cited. It is true, we have modified the civil law rule; but it is clear, we have adopted the policy of that law, in preference to the common law on the same subject.
    The civil law, it is believed, made no special provision for ascertaining the fact of paternity in these cases; but it was left to be ascertained in the ordinary modes of proceeding before the judicial tribunals. Our statute has corrected this; and has referred it to the father, who is certainly better qualified than the Courts to pass upon the question, and to decide the fact of paternity. If “recognized by him” the children are legitimate; if not “recognized bj- him,” they are illegitimate. This, then, is the sole object of the modification of the civil law *made by our statute. What is there in it that renders a recognition after the marriage of the parents more appropriate, more safe,, more in accordance with the object and policy of the law, than a recognition of the same fact by the same person upon the same knowledge, before the marriage.
    It may be said that recognition after marriage, must be intended to legitimate the child, but that recognition before marriage may not be intended for any such object. This is to assume that the statute intended to submit the question of legitimation to the father’s will and pleasure. But the matter, and the only matter submitted to him, is the fact of paternity. He best knows that fact; and it is referred to' his decision. But it never was designed, that, if the father admitted or recognized his paternity, the legitimacy of the child should depend upon his will, or intention. It may be that the declaration by the father of the paternity of the child, after marriage, would be thought to be more solemn and well considered than such a declaration before marriage. But that refers itself merely to the sufficiency of the evidence of recognition; and cannot have any weight against the validity of a previous recognition, made in such a manner as to leave no doubt of the fact.
    Upon this question, the Court is referred to the opinions of the Judges in the case of Coutts v. Greenhow, 2 Munf. 365.
    3. If the statute requires a recognition by the father subsequent to the marriage, this recognition may be subsequent to the death of the child.
    This recognition is required by the act to precede, and produce legitimation. Its consequence is legitimation. The first en-quiry then is, whether the effect intended, to be produced by the recognition can be produced when the child is dead. Can there be a post mortem legitimation?
    ^Legitimation, whether before or after death, involves no change of the; fact of natural bastardy. It involves, only, the removal of legal bastardy; a removal of the legal consequences attached to the fact of natural bastardy. Legislation cannot alter the natural fact of bastardy, either before or after the death of the bastard; but the legal consequences of bastardy, legislation can alter, because it creates them : and if these legal consequences survive the bastard, a fact which no one doubts, they may be altered after the death of the bastard, as easily as before. If the act only contemplates a benefit to the child, then of course there can be no legitimation after the child’s death; but if a benefit to the descendants is also contemplated, and the object is to remove the general taint of blood, which cannot be doubted, then the object of the law survives the bastard, and the policy of the act, therefore, requires that the legitimation should be effected after his death, in favour of his descendants. Indeed, wherever the civil law prevails, there is post mortem legitimation: Which could scarcely be if it involved a natural absurdity.
    Assuming then, that there may be a post mortem legitimation; and that the object and policy of the act requires it should be, for the benefit of the descendants of a bastard, we come to the last remaining question : Can the recognition required by this act take place after the death of the child to be recognized?
    To recognize a child, within the meaning of this statute, is, obviously, to acknowledge it to be his. That is clear, whether you look to the meaning of the word or the object of the provision.
    The object- is’ to ascertain the paternity of the child. This may be done, and is done by an acknowledgment of the fact by the father, either orally or in writing. In Coutts v. Greenhow, before referred to, it was conceded that the mention of the children as his by the father, in the deed of settlement, was a sufficient acknowledgment.
    *Then, taking “recognize” tornean acknowledge, and paternity the fact to be acknowledged, that acknowledgment may, so far as the nature of the act to be done is concerned, be made as well after, as before the death of the child. The existence of the child cannot be necessary to enable the father to ascertain the fact to be acknowledged. If the fact existed before the death, it would continue to exist after the death ; and might just as well be known to the father, and be as formally and distinctly acknowledged by him after, as before the death.
    Looking, then, to the object, policy, provisions, and phraseology of the statute, we insist: 1st. It does not require a recognition subsequent to the marriage. 2d. That if a recognition subsequent to the marriage is required, a recognition after the death of the child is sufficient.
    Philip Williams and Patton,for appellees.
    In the legitimation of children born bastards upon the part of the father, our law has followed neither the common nor the civil law. The former did not allow any acts of the parents to legitimate them; the latter annexed legitimation as a necessary, and inseparable consequence of the marriage, without any other act; provided the parents could legally have married each other when the children were begotten. Our law, on the contrary, requires both the marriage of the parents and recognition on the part of the father.
    It is conceded on' all hands, that Mary Ann, the daughter of Robertson Way, was a bastard, unless she was legitimated by our statute and the acts of the parties under it. On the other hand it is conceded, that the complainant is not, and never was, a bastard; but a legitimate child. He claims, however, to inherit from Robertson Way, through his mother; and her capacity to transmit the inheritance depends upon her being legitimate.
    *Our statute does not provide that bastards, if recognized by their father, shall be capable of inheriting or transmitting an inheritance on the part of the father; but it confers a personal benefit, and legitimates the children where the father shall marry the mother and recognize them; and when once legitimated, they are precisely in the same state as if born legitimate.
    1. The first proposition of appellant’s counsel is, that the word “children” in the statute should be construed to embrace “all descendants,” so as to make a recognition of any descendants of such a connection legitimate the descendants.
    To sustain this position, he refers to the construction given to the word “children” in wills. But even in wills it is only construed descendants when the devise would otherwise fail. But it is unnecessary to discuss the question in relation to wills. Ho statute can be found in which “children” has been construed to include grandchildren. And in the case of Blunt v. Gee, &c., S Call 481, which arose on the 13th section of our statute of descents, the Court unanimously held, that “children” did not include grandchildren.
    We come now to the question, whether Mary Ann, the mother of the complainant, was the legitimate child of Robertson Way?
    That she died a bastard must be conceded; because it requires both marriage and recognition to legitimate her; and she died before marriage. Having lived .and died a bástard, we insist she must so continue.
    2. The precise question stated in the second proposition of the counsel for the appellant is, whether the recognition before the death of the child, and the marriage after the death, legitimated her who had died a bastard?
    We insist, that the recognition must be cotemporaneous with, or subsequent to the marriage; and that it must have been made at the time when the law annexed ^legitimation to the act of recognition. In the case of Coutts v. Greenhow, referred to by appellant’s counsel, there was both the cotempora-neous, and subsequent recognition ; and it is, therefore, no authority for the proposition, that recognition before marriage is sufficient.
    Though not disposed to press the mere order in which the acts follow each other in the statute: 1st, the birth of the children; 
      2d, the marriage; and 3d, the recognition, yet it affords some guide to the intention of the Legislature; and we ought not to transpose it, unless to give effect to its provisions. One must precede the other. But there is this difference: marriage before, and without recognition, is not a void act; but it imposes duties, and confers rights: recognition before marriage, imposes no legal duty, and confers no legal rights, either upon the parent or the child: but is, when performed, a void act. But recognition, after marriage, at once makes the child legitimate; and brings into existence all the rights, duties, and' obligations arising out of the relation. It is most reasonable so to construe the law as to enable the father to perceive the consequences of his recognition at the time he makes it. To hold a previous recognition sufficient, will give to it an effect which the father did not intend at the time; and which the law did not then attach to it.
    3. The third position of the appellant’s counsel, is, that recognition after the death of the child is as effectual as if made during her lifetime.
    We say, that recognition necessarily implies the existence of the person recognized at the time of the recognition. Whatever sense you give to the word “recognize,” whether restricted or extended, it implies the existence of the person recognized.
    The counsel for the appellant refers to the civil law, by which the marriage of parents legitimated the issue of a child who died before the marriage. By the civil law, legitimation is an incident inseparably annexed to *the marriage of the parents, without respect to the purposes or wishes of either parents or children ; if the parents might lawfully have married at the time the child was begotten: and the legitimation related back to the birth of the child. In fact, the cohabitation was treated as contractum matrimonii. But this fiction of law was not permitted where the parties might not lawfully have married; nor where the relation back would injure the rights of others. Thus, it will be seen that the legitimation of the issue of a child who died before the marriage, by the civil law, grows out of the fiction of the relation of the marriage to the birth of the child.
    Our law does not legitimate the child without the recognition of the father, and against his consent; neither does the marriage relate back to the birth of the child; nor does the legitimation of the child depend upon the legal competency of the parties to marry each other at the time it was begotten. It rests upon no fiction or relation ; but upon the marriage and recognition ; and takes effect from the moment that the law gives it validity, without any retroactive operation.
    We therefore submit that the mother of the appellant was not the legitimate child of Robertson Way; and that the appellant cannot inherit to his grandfather through her.
    
      
      Bastardy. — See monographic note on “Parent and Child” appended to Armstrong v. Stone, 9 Gratt. 102, and principal case cited in Greenhow v. James, 80 Va. 650.
    
    
      
      That act says: “Where a man having-by a woman one or more children, shall afterwards Intermarry with such woman, such child or children, if recognized by him, shall be thereby legitimated.”
    
   STANARD, J.,

delivered the opinion of the Court.

The Court is of opinion, that the decree of the Court below, sustaining the demurrer of the appellees to the bill of the appellant, is erroneous. Therefore, it is adjudged, ordered and decreed, that the said decree be reversed; and that the appellees pay to the appellant the costs by him expended in the prosecution of his appeal in this Court. And this Court proceeding to render such decree as the Court below ought to have rendered, doth adjudge, order and decree that the demurrer to the bill be overruled; and that the defendants demurring in the *Court below, answer the said bill. And' the cause is remanded for further proceedings proper on, and in pursuance of this decree.

ALLEN and BALDWIN, J., dissented.  