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