Bill,
This refers to post-Revolutionary legal changes --- From Inheritance in
America From Colonial Times to the Present by Shammas, Salmon and Dahlin,
1987.
"Virginia, and Maryland to a lesser extent, were also aggressive in defining
the rights of illegitimate children. Common law rules giving illegitimates
no inheritance rights at all continued in most states after the Revolution.
According to Tapping Reeve, who wrote the first American treatise on
domestic relations, published in 1816, an illegitimate child was "filius
nullius... having no inheritable blook." As a matter of policy, "to
discourage illicit commerce betwixt the sexes," a child born out of wedlock
could inherit from neither father nor mother unless they included a
provision for the child in their wills. for the same reason, an
illegitimate child could transmit to no one but spouse and children, "for
all other kindred but his children must be traced through a common ancestor
to him and the relations. But he has no ancestor: He therefore, can have no
relations in the ascending or collateral line; and if he should die
intestate, without any issue, no person could lay claim to his estate"
Reeve admitted that this reasoning could not apply to a child's mother but
noted that in Connecticut, his own state, the Supreme Court supported the
rule. Pennsylvania also upheld until 1855. A virginia inheritance statute
enacted in 1785, however, gave illegitimates the power to inherit from and
transmit to their mothers as though they were legitimate. Along with
Maryland, Virginia law-makers also gave men the power to legitimize children
by marrying their mothers and acknowledging paternity. Other than South
Carolina, which acted only to limit the inheritances of illegitimate to no
more than one hundred pounds, other states made no provisions for children
born out of wedlock.
Illegitimate children benefited under the Virginia statute in several ways.
As noted, they became assured of inheriting intestate mothers' property and
of transmitting their own estates to their mothers if they died intestate.
This aspect of the law obviated the necessity of making testamentary
dispositions. But another aspect of the statutory change was even more
beneficial. By giving illegitimate children the rights of legal heris,
Virginia lawmakers allowed them to succeed to property through their mothers
as well as from their mothers. They became the heirs of those who gave
property to women and their legal :issue" or women and their "heirs". After
1785 in Virginia illegitimate children occupied a place in the line of
succession, alongside the legitimate children of their mothers and ahead of
the mothers' ascendant and collateral relatives. While children always had
been able to inherit under specific testamentary bequests, they had never
before been recognized as heirs in the general line of succession."
I don't know how adoption influenced this, but maybe it will help a bit.
Bonnie
----- Original Message -----
From: "Moonlightgems" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Tuesday, December 22, 2009 8:25 AM
Subject: Re: [VA-ROOTS] Guardian's/Ward's "Legal Rights" in VA in 1822
There was and I believe still is an obscure law on the books in
Virginia that while a woman's children are automatically her heirs -
a man's children are NOT automatically his heirs... I have heard that
this was to protect an estate from any claims of illegitimate children
a man may have.
I don't know about "adopted" children though.
On Mon, Dec 21, 2009 at 6:03 PM, Bill Davidson <[log in to unmask]> wrote:
> I have a case where a "Smith infant/toddler" was taken-in by John and
> Mary (Bennett) Brown around 1817-1820 in Middlesex Co., VA. DNA
> testing on a living male descendant shows that this infant/toddler was
> a "biological Smith" who was a member of the same overall Smith
> family as the John Smith who married Sarah Waller (daughter of Judge
> Benjamin Waller of Williamsburg) around 1788. This child was named
> and reared as Smith W. BROWN, however, by his new "Brown
> guardians."
>
> It appears that John Smith and Sarah Waller MAY very well have been
> the parents of this child, and it appears that Mrs. Sarah (Waller)
> Smith was dead by at least the 1820 census (she MAY have died as a
> result of having the referenced child...she would have been about the
> age of 50 in 1817). If Smith W. Brown was, in fact, a child of John and
> Sarah (Waller) Smith, it appears that the widower John Smith gave this
> son to his "new Brown guardians" while John Smith was still alive
> (though John Smith was probably in ill health at the time, and perhaps
> unable to care for an infant son, since John Smith was also dead by at
> least 1822).
>
> Note: Mrs. Mary (Bennett) Brown was also a descendant of the
> referenced overall Smith family (but out of a different "branch" of that
> family), so she and her husband John Brown were "viable candidates" to
> have taken-in a Smith child.
>
> In 1822, there was a chancery court case where the "representatives of
> the heirs of John Smith" were to divide the "estate of Maurice Smith"
> (Maurice Smith was the father of John Smith, and when Maurice Smith
> died back in 1795, he left his entire estate to his only son John
> Smith...though John Smith had three sisters). This 1822 chancery case
> distributed the remaining estate of Maurice Smith (which MAY have
> been slaves only, but I am not sure about that) to
> three "representatives of the heirs of John Smith." The division was not
> equal....i.e., it was not simply 33 1/3 to each of these
> three "representatives"...so the percentage that each "representative"
> was to receive MAY have been dependent on all of the younger (and
> unnamed) family members in each of these "three branches of the
> Smith family."
>
> Note: I have seen what appears to be only a SUMMARY of the
> referenced chancery case (this "summary" was found in the papers of
> George H. S. King at the Virginia Historical Society). I need to read the
> entire/full court case, but I will have to go to the Middlesex courthouse
> to do it, since the Middlesex chancery cases available at the LOVa stop
> in 1820...and I need the cases from 1822.
>
> The three people listed as "representatives of the heirs of John Smith"
> were: 1) the husband of one of John Smith's living sisters, 2) the
> husband of one of John Smith's own daughters, and 3) the only adult
> son of John Smith in 1822 (James Smith). This excluded any mention of
> the Brown family, who had taken-in Smith W. "Brown." Is this
> particularly surprising, or do guardians of a child...and/or the child
> himself/herself...forfeit any "direct/automatic" benefit from the
> distribution of an estate from the child's "original/biological family?"
>
> What I am trying to determine, of course, is whether or not the
> exclusion of Smith W. Brown and/or his "Brown guardians" in the above
> chancery case necessarily means that Smith W. Brown was NOT a son
> of John Smith and Sarah Waller after all. It appears that the "heirs of
> John Smith" were to divided the estate of John Smith's FATHER Maurice
> Smith....versus dividing the estate of John Smith himself....and I can't
> help but wonder if that MIGHT be a "significant detail" in all of this.
>
> Comments on the above? Thanks.
>
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