Bennett v. Toler

• Decision Date: 22 May 1860
• Citation: 56 Va. 588
• Court: Virginia Supreme Court
• Parties: BENNETT & als. v. TOLER & als.

56 Va. 588

BENNETT & als. v. TOLER & als.

Supreme Court of Appeals of Virginia.

May 22, 1860

Upon a devise to a daughter for life, and at her death the property to be equally divided among her children; an illegitimate child of the daughter will take with her legitimate children.

This was an appeal from the decree of the Circuit court of Pittsylvania, in a suit instituted by the children of Henry Toler deceased, against Crafton Bennett and others. The only question in the case arose on the construction of the sixth clause of the will of Joseph Toler deceased.

Joseph Toler died in 1819, and his will was duly admitted to record in the County court of Pittsylvania. The sixth clause is as follows:

" 6th. I give to my beloved daughter Mary Bennett, the tract of land she now lives on, bought of Creps. Also the following negroes: Aggy, Lazenberry, Locky and Sapy. My will is, at the death of my daughter Mary Bennett, that the land and negroes given to her shall be equally divided amongst her children."

The facts are, that Mary Bennett, before her marriage with Lewis Bennett, became the mother of a natural child; and after the birth of this child she married Lewis Bennett and had by him several children, who or whose descendants were the defendants in this case. This natural child, who was called Henry Toler, was born sixteen or eighteen years before the death of Joseph Toler, and was known and recognized by Joseph Toler as the child of Mrs. Bennett. At the death of Joseph Toler, Mrs. Bennett was married to Bennett and had several children by him then living. Henry Toler was then alive; but died intestate in the lifetime of his mother, having married and leaving the plaintiffs his children, his heirs and distributees. Mrs. Bennett afterwards died, and this suit was brought by the children of Henry Toler, claiming that he took under the will of Joseph Toler, as one of the children of Mary Bennett. The court below decreed in their favor; and the defendants obtained an appeal to this court.

The case was argued orally before a court of four judges, by Macfarland & Roberts, for the appellants, and Grattan, for the appellees: and the court having directed that it should be argued again before a full court printed notes of argument were submitted by Read and Macfarland & Roberts, for the appellants, and Grattan for the appellees. The reporter trusts that on a question of such interest he will be excused for giving the argument at length.

Read, for the appellants:

There is no rule of construction, we submit, better settled by an unbroken chain of English and American decisions, than this Where there are legitimate and illegitimate children in existence at the death of the testator, gifts to " " children" as a class exclude illegitimates. And no case can, we think, be cited in which legitimate and illegitimate children have taken under the same description. 2 Jarm. Wills, 2 Amer. ed. p. 93-4, and American cases cited; Bagley v. Mallard, 4 Cond. Eng. Ch. R. 563. In the last case cited, the testator gave the residue of his property, after the death of his wife and daughter, to all the children of his sons James and William and of his daughter Sarah, in equal shares. William was dead and had an only surviving daughter, Elizabeth. It was held that Elizabeth took no part of the residue, although the testator had, in a previous clause in the same will, devised to her a leasehold in trust, describing her " as his grandchild Elizabeth, the only surviving child of his son William." We also refer to Lomax on Executors, edition of 1857, vol. 2d, top p. 34-36. The same author in his Digest, vol. 3, p. 235-36, lays down the same rule, and adds, " Nor will the application of this rule fail, though the children were described in reference to the mother." In a note on the same page (236), the question is asked, " Has the Virginia statute, as to the capacity of bastards to inherit, any influence in changing this doctrine?" But in his late work on executors, the broad rule of the English courts is laid down, without adverting to the Virginia statute. Lomax on Ex'ors, p. 34.

It will doubtless be conceded that this canon of constructions is entirely settled as a part of the common law of England, and as such, binding in our own courts, unless it is abrogated by our act of descents, which permits bastards to inherit from their mother.

If the act referred to had legitimated all bastards and removed all their disabilities, they might answer the description of " children." But surely a statutory provision which merely removes one of the disabilities of a bastard, in permitting him to inherit from his mother, cannot have the effect of changing his designation and bring him under the description of " children," in a will or deed.

The expression " children," unless qualified, means, in legal technicality and construction, ex vi termini, lawful children. This is its legal meaning in wills and deeds, unless qualified; and every testator in a will or grantor in a deed is presumed to use the word in its technical sense, unless the contrary intention manifestly appears from the face of the instrument itself. But it was contended in the court below, that by the common law a bastard was filius nullius, and that it was for this reason that he did not take under a bequest to children. It should be borne in mind, however, that the rule that a bastard is " filius nullius, " applied only to cases of inheritance: he was subject to no other disability--he had all the privileges of citizenship--he could hold real and personal estate, and give and convey to others. And so far as devises and bequests were concerned, he never was regarded as filius nullius. Jarman says that illegitimate children, born at the time of making the will, may be objects of a devise or bequest by any description which will identify them. 2 Jarm. Wills, p. 94. By the common law a bastard cannot take by descent, but he might always take under a bequest. Now, the reason that in a bequest " children" means lawful children, is founded doubtless on the presumed intention of every testator, in the absence of qualifying expressions, to provide for lawful, in preference to spurious offspring. It is true, that in its primitive sense its more literal meaning, in common vocabulary, might have been legitimate offspring-- Qui ex damnato coitu nascuntur, inter liberos non computenter. We have an instance in the Epistle to the Hebrews from which we infer that the word " sons" in common parlance at that day meant only legitimate sons--" Then are ye bastards, and not sons." But doubtless the controlling motive in giving such a construction to the word " children" was, as we have stated, that in a great majority of cases the testator is presumed to prefer, as objects of his bounty, legitimate children to bastards. Such a preference tends to discourage vice--to encourage purity and chastity. Such a preference is a reproof and punishment to the mother; and the parent, as an example and warning to his other children, in legal construction, only intends to provide for legitimate offspring, when he makes a bequest to his " children." The same motive would be presumed to influence a testator who is a collateral relation, or a stranger in blood to the children of the mother who are the objects of the testator's bounty. And while the legislature, acting on the supposed natural affections of the mother, casts her estate on the unfortunate offspring of her own illicit connexion, and thus in default of a last will provides for the bastard out of the property of one who brought it into being, such a legislative provision could throw no light on the intention of a testator, who is under no legal or moral restraint to provide for the children of the guilty mother; and is presumed by considerations of public morality and decency, to discriminate, in dispensing his bounty, in favor of lawfully begotten offspring.

The argument on the other side seems to us to be no more than this: Whereas by a rule of testamentary construction as well settled as any principle of the common law, children in a bequest means only legitimate children, and the testator is always presumed to intend only legitimate children; yet the act of assembly which permits bastards to inherit from their mothers, changes the supposed intention of the testator, and furnishes the new rule of construction, that " children in testaments shall embrace bastards."

If the English rule is once broken in upon, it would be difficult to foresee all the consequences that would result from its abrogation.

If bastards of a particular female come under the description of children, then in all deeds and in all wills, limiting estates over after the death of a female, to her children, in all instruments in which property is granted or given to the children of nieces or aunts, or to the grandchildren of a particular female, or to grandchildren generally, the words children and grand-children would let in bastards. Powers of appointment to dispose of property among the children of a particular female would be improperly executed, unless bastard children shared in the distribution. A gift to the grandchildren of A, under such a construction, might let in a bastard grandchild whose mother also was a bastard: And possibly the precedent might be stretched to embrace unprocreated and unborn bastard offspring, under the idea that they can inherit from the mother as soon as they come into existence: and even a gift to the " lawful issue" of the mother, might embrace illegitimates, for the argument is, they are lawful issue to inherit, and should be deemed legitimate in a bequest.

All the cases show that " child," taken simpliciter, means a legitimate child only. Wigram V. C. in ...