I've read this discussion straight through at one sitting.

Like most legal questions, it's important that you stay in the right boxes.
For that reason, I like Paul's careful distinction between testate (with a
will) and intestate (without one).   Without a will, it makes sense that,
regardless of whether there was a strict legal (as opposed to equitable) bar, that
illegitimate children would not inherit.   There would simply be nothing from
which to infer such an intent.

On the other hand, a testator, again as Paul stated, has a right to name
anyone as a beneficiary (subject to "policy" rules designed to protect a spouse or
conventional children from being entirely cut out).   So if the testator said
"I bequeath my black horse and rifle to John Jones, my illegitimate son," I
have no doubt but that the bequest would be honored.   In that sense, it is not
true that an Illegitimate child "could not" inherit.   I have examples in my
own line where illegitimate children were named (though not otherwise
described) and appear to have peacefully taken their bequests.   Certainly a will
would not be "invalid" merely on that ground.

But the original question appears to have posed, not a question of legal
capacity to inherit, but rather a question of interpretation,i.e. would have an
illegitimate child have been routinely viewed as
included within in the phrase "all of my children."   I suspect that in the
18th century that issue of interpretation, without more, would probably have
been answered in the negative.   It may have been, as Paul infers, that an
illegitimate child would have had an equitable claim (with evidence of
acknowledgment) that would lie in a chancery court; but the discussion so far seems not to
have given a definite answer on that question.

I agree with the others that this is an entertaining and useful discussion.

Jack Fallin

To subscribe, change options, or unsubscribe please see the instructions at
http://listlva.lib.va.us/archives/va-roots.html