[log in to unmask] wrote:

> I had to enter the discussion as I am enclosing a minor part of a will from a
> man in S.C. that in a way sort of answers the question. Maybe it all depends
> on the state.

> Does this help in any way?  I always give to Paul as feel he is more
> knowledgeable than I altho I have done reserach for almost 50 years. I am still not
> satisfied that I have covered all the bases or done it all right.

        It seems to be that there is a good deal of confusion and thus
conflicting opinions on this so perhaps a bit more discussion of the
fundamentals is in order.  So let's start at the beginning and make sure
that we are all talking about the same thing.
        First, there are two types of estate, intestate (no will) and testate
(with will).  The rules (laws or precedents) of intestate are the
foundation.  The existence of a will can and does change some of those
rules.  Thus, under the law of intestacy, an illegitimate child can not
inherit.  However, if specifically identified in the will, he can
inherit anything that the testator choices to give him, within limits.
By "within limits", I mean that if the testator disinherited all of his
legitimate children and left his entire estate to an illegitimate child,
there would probably be a tremendous law suite challenging the validity
of the will.  In that case the decision of who gets what would be up to
a judge and jury who may or may not strictly interpret the law.
        While the presence of a will does change some of the rules, the rules
of intestacy continue to cover areas which the will does not cover.  For
instance, a man's first wife dies in 1772 and he decides that his own
time is not far away and he writes a will in that year in which he
parcels out all of the 150 acres of land that he owns to his 3 children.
  However, he doesn't die at all but goes on to marry again and has 3
more children and buys another 150 acres.  Then, in 1782 he finally dies
but he has never changed his will.  What to do?
        Well, in this case, the younger children, could legally get shafted.
The will stands so that the older children get to divide up the first
150 acres between them as the will states.  The remaining 150 acres are
divided according the rules of intestacy so that the 150 acres is
divided equally amongst the 6 children.  However, one of those younger
children might challenge that will and if they are successful, the will
would be declared invalid and ignored and the laws of intestacy would
apply so that all 6 children share equally in the division of 300 acres.

        So, that brings us to the examples that you have given and which Janet
gave earlier.  Both of these are examples of testate estates, meaning
that there is a will.  Remember, the existence of a will does change the
rules.  So in your example where apparently illegitimate children are
mentioned and/or identified, they will inherit whatever the parent
desired that they should get.
        In the example that Janet gave, the child in question is not mentioned
in the will.  Under the rules of testacy, any situation not covered by
the will, is to be governed by the rules of intestacy.  In those rules,
illegimate children could not inherit.  So the question arises as to the
identify of an individual who is not named in the will but who does
share in law suites over the distribution of the estate with the legal
standing of heir-at-law.  There are a number of options available:
        1) an older child who had already received his portion of the estate as
an earlier gift;
        2) a younger child born after the will was written;
        3) a grandchild whose parent was deceased.
        An illegimate child would only be included in this list if, subsequent
to its birth, it had been made legitimate and that, as far as I know,
was accomplished in one of two ways:  1) the subsequent marriage of the
parents and 2) formal, legal adoption.  Making paternity payments,
bastardy bonds etc. was not considered sufficient action to legitimate
the illegimate.

        Finally, it is important to bear in mind that the definitions for what
constituted a legal marriage changed from time to time and it is going
to depend on the laws at the time as to whether or not the court would
recognize a "common law" marriage or not in considering whether or not a
child was to be deemed legitimate or illegitimate.  If common law
marriages had legal standing, then the children born to that marriage
were legitimate.  If it did not, then they were considered illegimate.

        So...the answer to Janet's question is...we don't know because we still
don't have enough information.  Given the little bit that we do know, I
would assume that her Davenport fit one of the three categories listed
and not illegitimacy.  To learn more, Janet is going to have to do two
things:
1.) Find exactly what laws applied at the time and in the jurisdiction
2.) Hire a researcher who can go to Louisa Co courthouse and get
permission to search for the actual case papers and to copy everything
that relates to the case:  docket, jackets, pleadings (complaints and
answers), depositions, testimony...anything, to see if they shed further
light on the case.

        Boy, I hopes this helps and doesn't just make things murkier!

Renee L. Dauven

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