Janet Hunter wrote:


> My question(s) is would an illegitimate child be included in the definition
> of "all my surviving children" in a will even if not named?

        No.

 > Would he or she
> have any rights in a later chancery court case?

        No.
> Would it have made any
> difference if there had been some sort of court acknowledgement, or a bastardy case?

        No.

        Those are the short answers.  Now for the long answers.  The very
definition of the word "illegitimate" means that the child has no legal
or "legitimate" claim to a parent's estate.  So there would be no way
that such a child would be included by the court under the phrase "all
my surviving children".
        The same reasoning applies to the later chancery court case.  You are
going to have to very closely examine the circumstances of the court
case and what you know about the family.  I know of only a few reasons
why a legitimate child might not be mentioned in a will.  First, in the
days of primogenitor, sometimes the oldest son might not be mentioned
because it was automatically assumed that he would take possession of
all properties not disposed of by the will.  So there would be no need
to make special provisions for him.  Even after the demise of
primogenitor, some older people still wrote their wills with that in mind.
        Another reason some might not be named in a will is because they were
born after the will was written.  One of the clues that this might be
the case is that there will be a long period of time following the death
of the testator and the selling off of the estate which may have been
left more or less intact until the youngest children were of age or
close to it or the widow died.
        That your Davenport was included in the suit is an indication that he
is a "legitimate" heir, either as a child born after the will was
written or as a grandchild whose parent was deceased.  You may want to
examine ages, etc., to determine if the recording of the will was
correct in naming as a "brother" an individual who was actually a
"nephew".  Thus your Davenport and the other individual might possibly
be grandchildren or they are legitimate children by a later wife.
        A third reason for not mentioning a child would be if other
arrangements had been prior to the writing of the will.  For instance, a
daughter might be given a gift of land at the time of her marriage with
the understanding that the gift represented her portion of the father's
estate and that she would not receive a portion in the will.
        HOWEVER...this was a pretty risky thing to do because unless there was
written proof, once primogenitor had been discontinued, the law assumed
that all children of a marriage would share in the estate.  Not to
mention and leave a token, even if it was just a dollar, to a legitimate
heir, was to invite a challenge to the will at a later date.  (Don't
make the mistake of thinking that a child who receives just a token
amount has been disinherited.)

        Hope this helps.

Renee L. Dauven


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