CONTENTS

1. INTRODUCTION

2. STATUTORY PROVISION AND RIGHTS OF A ILLEGITIMATE CHILDERN

UNDER PERSONAL LAW AND PRIVATE INTERNATIONAL LAW

3. SUCCESSION OF AN ILLEGITIMATE CHILD

4. CONFLICT OF LAWS WITH REGARD TO THE SUCCESSION OF

ILLEGITIMATE CHILD

5. CONCLUSION

CITED CASES

1. Bischoffsheim, Re [1948] Ch 79, [1947] 2 All ER 830

2. Brown vs. Finley, 21 L. R. A. (N. S.)
3. Van Horn vs. Van Horn, 107 Ia. 247, 77 NW 846
4. J v. C [2007] Fam 1 (CA)
5. In Re, Wilson, (1954) CH 733
6. In re, Wilby, 3 [1956] 2 W.L.R. 262
7. Thompson v. Thompson, 0 (1950) 51 S.R.N.S.W. 102
8. Boyes v. beadle, (1863) 1 H. & M. 798.

CASE ANALYSIS

1. In Re, Estate of Spano, 229 A.2d 645, 49 N.J. 263

2. Fuhrhop v. Austin, 385 Ill. 149 (Ill. 1943)
3. In Re, Crossley's Estate, 135 Pa. Super. 524 (Pa. Super. Ct. 1939) , 7 A.2d 539
4. Wolf Vs. Gall, 163 P. 346 (Cal. Ct. App. 1916)
 REVIEW OF LITERATURE

THE STATUS OF CHILDERN IN THE CONFLICT OF LAWS - GEORGE

WILXRED STUMBERG( Professor of law, University of Texas)

The above article descriptively talks about the status of children under the conflict of laws
bearing different scenarios and perspective. It is frequently assumed that principles of
conflict of laws, at least as they are understood in the United States, make local domicil a
necessary jurisdictional prerequisite to the creation by a state of any of those conditions of
person which are customarily grouped together under the broad descriptive term "status."'
Consistent resort to this assumption for the solution of problems involving state power
with respect to the status of children would require that when legitimacy is in issue, the
circumstances be such as would legitimize under the law of the domicil at the time the
circumstances occur, and that in the case of adoption3 or of custody, the judicial
proceedings confixning the adoption or awarding custody take place at the domicil.

INHERITANCE BY AND FROM BASTARDS by Chester G. Vernier and Edwin P.

Chuerchill(professor of law, Stanford university, author of American family laws)

At common law, the illegitimate child is considered filius frinullius. This doctrine has
been coldly and logically applied in the field of inheritance rights with the result that
there are no common law rights of inheritance by or from the bastard except as between
himself and his issue or spouse. A great deal of variation is found in the statutes, both as
to language used in them, and as to the substantive rights conferred by them. Also, some
set out the scheme of distribution in detail; others content themselves with a statement
that certain classes of persons have rights of inheritance, leaving the scheme of
distribution to be determined from the general statutes dealing with descent and
distribution. In this article, it will be impossible to do more than point out certain features
of a general nature

LEGITIMACY AND MARRIAGE- by Joseph Cullen Ayer, Jr , Harvard Law

review

A childs relation to his parents may be regarded from the standpoint of morality or from
the standpoint of law. He is a member of a family, physically connected with his father
and mother, and the respective rights and duties of parent and child are a matter of
elementary morality. The principal legal difference between a legitimate and an ille-
gitimate child is that, in general, only the former is capable of inheriting either from an
intestate father or through a father de- ceased. He cannot iniherit name, titles, or honors
from or through his father
 SUCCESSION OF ILLEGITIMATE CHILD RELATING TO PERSONAL LAW AND

PRIVATE INTERNATIONAL LAW

INTRODUCTION:

“There are no illegitimate children- only illegitimate parents”1

The term “ILLEGITIMACY” has been abolished in the family jurisprudence of many
western countries but where as in India the word illegitimacy has wider scope and
resemblance the status of a person and has certain rights in the family. For example
succession, maintenance etc.., in this project I would go with the succession of illegitimate
child along with the conflict of laws. The branch of Indian law, in contradistinction to the
ordinary local or domestic law of India, which is concerned with cases having a „foreign
element‟, is known as the conflict of laws or private international law. And foreign element
means a contact with some system of law other than the Indian law.2 Conflict of Laws is not a
law governing relations between independent States rather is simply a branch of civil law of
the States evolved to do justice between litigating parties in respect of transactions or
personal status involving a foreign element. 3 Legitimacy in layman’s language means the
status acquired by a person who is born to parents who are married to one another at the time
of the birth. Legitimation means that a person who has not been born to married parents
acquires the status of legitimacy as a result of some act. Adoption involves the extinction of
the parental links between the child and the biological parents and the creation of similar
links between the child and the adoptive parents.4

The migration of persons between the two countries and jurisdictions with different
legal systems has been the source on the problems of conflict of laws, among such conflict of
laws arises when a child who is born illegitimate and later acquires the rights under the law
of different country seeks to inherit under the law of another country. A child is, or is
presumed to be, legitimate if it is born anywhere in the world in lawful wedlock Illegitimacy
is a state which not only imposes a social stigma, but deprives a person of rights of
succession to the estate of his/her father

STATUTORY PROVISION AND RIGHTS OF AN ILLEGITIMATE CHILDERN

UNDER PERSONAL LAW AND PRIVATE INTERNATIONAL LAW.
1
Leon R Yankwitch
2
What is meant by the Conflict of Laws, Conflict of Laws, Halsbury Law Journal, Vol:10, p. 75.001
3
R Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, AIR 1963 SC 1 at 10, [1963] 3 SCR 22.
4
Cheshire and North‟s Private International Law, 14th edition, Oxford University Press
 Inheritance and succession rights are based under the laws of different countries on
varying conceptions. In some cases this matter is regarded as an extension of the personal
rights deriving from consanguinity. Succession by operation of law has priority over
testamentary succession. The question here is whether an illegitimate child can inherit the
property? The inheritance rights of illegitimate child come after those of legitimate children.
The system and practice of denying an illegitimate child the right to inherit his father’s
property has changed drastically in England. 5 In Re Bischoffsheim,6 a single Judge has laid
down the rule that English courts would recognize the status of legitimacy if the child is
regarded as legitimate by the law of the domicile of the parents at the birth of the child. This
judgment is severely criticized as it is difficult in application where parents have different
domiciles. However, a step forward is taken by the Law Commission in England to answer
the difficulties i.e. it suggested that the lex domicilii to be adopted should be that with which
the child was most closely connected.

There are different types of succession

1. Succession ab intestate
2. Testamentary succession

SUCCESSION AB INTESTATO

Succession ab intestate which means succession by operation of law. The position of

an illegitimate child differs according to the category to which they belong. In many
countries children born out of adulterous or incestuous intercourse are excluded from
inheritance. For example France, Italy etc.,

In the case of Brown vs. Finley 7the rule is different as to the personal estate. Here,
expect if changed by rule, it is well settled that the personal property or the individual
property, where ever situated, will be distributed as provided by the rules and law in force at
the place or the jurisdiction where the descendent was domiciled at the time of his death. The
place where the owner of the land was domiciled at his death is immaterial. In accordance
with the general doctrine, the state of the situs may refuse inheritance rights in local land to
one born out of wedlock but subsequently legitimated by the subsequent marriage of the
parents, thus requiring something more than legitimacy for inheritance.8

5
Conflict of Laws, 14th edn., paras 20-002 and 20-010 c.f. Setalvad, Atul M., Conflict of Laws, 2 nd edn
6
Bischoffsheim, Re [1948] Ch 79, [1947] 2 All ER 830.
7
7, 21 L. R. A. (N. S.)
8
Birtwhistle v. Vardill, 7 C1. F
In Van Horn vs. Van Horn9, it was held that, on the other hand it may be allow an
illegitimate child to inherit local land and impose such requirements as it sees fit concerning
the recognition of the offspring by the parent. The law of the situs must likewise determine
whether one may inherit local land from another for whose death he is criminally responsible.
Whether, and under what circumstances, an adopted child may inherit local land is also, as
would be expected, a question for the law of situs to determine.

In Venezuela, if the deceased was a man and left no legitimate posterity, he is succeeded by
his legitimate or illegitimate ascendants, his illegitimate children or their legitimate
descendants and his wife, and his estate is divided into three parts, one to go to the
ascendants, another to the wife and the third to the illegitimate children or their descendants.
Should there be no wife, half of his estate goes to his ascendants and the remainder to his
illegitimate children or their legitimate descendants. Should there be no ascendants, half of
his estate goes to his wife and the remainder to his illegitimate children or their legitimate
descendants. Should there be neither ascendants nor wife, the estate goes to his illegitimate
children or their legitimate descendants, but they are on the same footing as any surviving
legitimate brothers of the deceased and any legitimate children of brothers who have
predeceased him. Illegitimate children of a daughter or legitimate female descendant enjoy
equal rights with the legitimate descendants of illegitimate children.10

As regards the question of rights of succession by operation of laws, a distinction m ay be

made between four groups of persons : father and mother, descendants, ascendants and
collaterals. This classification does not of course correspond to the assignment of succession
rights in general, which necessarily starts from the deceased, whereas the present study takes
as its starting-point the illegitimate child. The position of the illegitimate child under the laws
of the different countries largely depends on their conception of the legal relationships
created by the illegitimate birth.

ACKNOWLEDGMENT:

9
107 Ia. 247, 77 NW 846
10
1 Venezuelan law accords rights of succession to illegitimate children and their descendants whose filiation is
proved either by express acknowledgment or by a judicial declaration specifying the father or mother of the
illegitimate child, or whose maternal filiations is proved by the register of births or by the possession of an
official document establishing the status of the person concerned
 Acknowledgment plays an important role in many countries. The illegitimate child
may inherit from his father or mother only if he or she acknowledged him. In some countries
acknowledgement by the father is necessary to enable the child to inherit from him. In Japan,
an unacknowledged child succeeds to the head of the household i.e., of the family but only
after the legitimate or acknowledged children. The countries of different legal systems
doesn’t provide for or abolished the mere distinction between the legitimate and illegitimate
children, the acknowledgment confers the status of the legitimate child

TESTAMENTARY SUCCESSION:

Where the deceased has left a will, the question of illegitimacy appears to arise in connection
with the reserved portion of the estate—i.e., the portion that passes to the direct heirs—the
capacity to inherit under a will and the interpretation of the term “ child ” in the text of the
will. “Testamentary succession refers to succession resulting from a legally executed
testament. Testamentary succession is also known as the right of inheritance. A testamentary
succession is fixed and determined at the moment of a decedent’s death.”11

Several countries (such as Belgium, Italy and Spain ) stipulate that an acknowledged child
may not receive by will or donatio inter vivos more than he is entitled to according to the
established rules of succession. On the other hand, an illegitimate child incapable of
inheriting ab intestato may be made a legatee. Where illegitimate children merely have the
right to maintenance from their father or mother, this often constitutes a charge on the
succession. This appears to be the case in the Argentine, in certain Canadian provinces
where, however, the rights of the widow and legitimate children of the deceased are
safeguarded in the United Kingdom and in Uruguay. It also appears to apply to
unacknowledged children born of adulterous or incestuous intercourse, particularly in
Belgium, Ecuador, France, Italy, Monaco, the Netherlands and Spain.

Position in England

The system and the attitude of denying an illegitimate child the right to inherit his father’s
property has now markedly changed in England.12 Courts can, under the law, declare a person
to be legitimate if the applicant is, when he commences the proceedings, domiciled in
England, or was, for throughout a period of one year before the commencement of the
proceedings, habitually resident in England. A child conceived before marriage is regarded as
https://definitions.uslegal.com/t/testamentary-succession/ visited on 10/03/2020
11

12
Dicey, Morris & Collins, Conflict of Laws, 14th edn., paras 20-002 and 20-010 c.f. Setalvad, Atul M.,
Conflict of Laws, 2nd edn., LexisNexis Butterworths Wadhwa, Nagpur, 2009.
legitimate if born after the parents were married, and so also a child conceived before but
born after the parents were divorced. Child born after artificial insemination is legitimate
even if the donor is not the husband; unless it is proved that the husband did not consent to
the insemination. This rule only applies where the parties to the marriage are Man and
Women and, as decided in J v. C13, this rule does not apply where the women marries to a
transsexual person.

A child not born in lawful wedlock would, however, be regarded as legitimate in

England if, and only if, it is legitimate by the law of the domicile of both the parents at the
time it was born.

Traditionally, the children of polygamous marriage is not regarded as legitimate, however, in

England, they are regarded as legitimate if they are so regarded by the law of the country
where the parents were domiciled when the child was born.

In Re Bischoffsheim14, a single Judge has laid down the rule that English courts would
recognize the status of legitimacy if the child is regarded as legitimate by the law of the
domicile of the parents at the birth of the child. This judgment is severely criticized as it is
difficult in application where parents have different domiciles. However, a step forward is
taken by the Law Commission in England to answer the difficulties i.e. it suggested that the
lex domicilii to be adopted should be that with which the child was most closely connected

Position in India

In India, „Legitimacy‟ is a status of a child being born during the continuance of a valid
marriage between the mother and any man, or within 280 days after its dissolution if the
mother remains unmarried. Unless it is shown that the parties to the marriage had no access
to each other at any time when he could have been conceived, his birth is treated as a
conclusive proof of he being legitimate.

Under Section 112 of the Indian Evidence Act, 1872 (herein after referred to as ‘the Act’), if
the applicant is domiciled in India on the date of application, the Indian court has jurisdiction
to grant a declaration that he is the legitimate child of his parents.

Though there is no decision of the Supreme Court on the point, it has been held that
illegitimate children cannot succeed to their father‟s estate on intestacy 15 but can succeed
13
J v. C [2007] Fam 1 (CA)
14
[1948] Ch 79, [1947] 2 All ER 830
15
Daddo Atmaram Patil v. Raghunath Atmaram Patil AIR 1969 Bom 176
mothers‟ estate. If the child has born of a marriage which is null and void under section 11 or
12 of the Hindu Marriage Act, 1955, the child is deemed to be legitimate and consequently
can succeed to the estate of the father on intestacy.16

In Mahomedan law, applicable to Sunnis governed by the Hanafi School, illegitimate

children cannot inherit from the father, but can from the mother. But in case of Shias, the
illegitimate children can never inherit Illegitimate children cannot succeed to property on
intestacy under the Indian Succession Act, 1925, Christians, Parsis and other religious groups
are governed under this statute

“An illegitimate child can get maintenance from his father or mother if he/ she is not
able to maintain himself/ herself whether married or not. He/ She if has attained majority, and
by chance due to any physical or mental abnormality or injury is unable to maintain him/
herself then can also get maintenance under this section. This is the main section of the
Indian Law that is a boon for illegitimate children (who cannot maintain himself/ herself) as
it provides quick and legitimate maintenance to illegitimate children.”17

If we are to speak about the rights of a son who is born beyond a wedlock or an
illegitimate child, then the various decisions given by various courts in our country comes to
a lot of help. One such case is the Sujata v. Krishna Prasad where the honourable court
observed; that though the children born out of void marriages are made legitimate, section
16(3) of Hindu Marriage Act forbids the conferment of any right on them in the property of
any person, other than the parents. Therefore, the legitimatized son cannot get a share in the
property which belongs to coparcenary of which his father is a member and that the
legitimatised son should succeed to the property on the death of his parents.

IN CASE OF PARTITION OF A COPARCENARY PROPERTY:

There are two broad stem of schools that deals with the partition right of an
illegitimate child.

 The Mitakshara School

 The Madras and Bombay School

According to the Mitakshara School of Legitimacy, a child born as a Perfect

Legitimate child or Statutory Legitimate child will have the right to ask for partition of the

16
Gurnam Kaur v. Puran Singh (1996) 2 SCC 567
17
Section 125 of code of criminal procedure, 1973
ancestral/coparcenary property from his father during his lifetime and after his death to his
Grandfather. According to the Madras and Bombay School, a child born as a Perfect
Legitimate child or Statutory Legitimate child will not have the right to ask for partition of
the ancestral/coparcenary property from the Father during his lifetime. But after his death he
can ask to his grandfather.

SUCCESSION OF AN ILLEGITIMATE CHILD:

In common law, legitimacy is the status of a child born to parents who were legally
married to each other; and the child was conceived before they got legally divorced.
Conversely, illegitimacy (or bastardy) is the status of a child born outside marriage.
Illegitimacy also raises the question regarding right of maintenance of child and mother from
the putative father. According to Friedmann in his ‘Law in a Changing Society’, the very
least the law can do is to minimize the misfortunes of children born beyond wedlock. In the
first place, it can, and should, encourage the legitimacy of children by subsequent marriage.
Legitimacy is now recognized in number of laws. But this is subject to considerable
limitations. Under Scottish Law, for instance, a child could not be legitimated by the
subsequent marriage of his parents, unless they were free to marry at the time of its
conception. In England, the position is the same except that the relevant date is that of the
birth of the child. In the recent Report of the Royal Commission on Marriage and Divorce, a
minority of seven members argued persuasively that this differentiation stigmatized children
for the shortcomings of their parents

The most widely adopted statutory policy is to give to the bastard the right to inherit
from his mother. Statutes containing such a provision are found in forty-nine jurisdictions.
Furthermore, although Connecticut has no express provision, the word "children" in the
general statutes of descent and distribution has been construed to include illegitimate
children, so far, at least as to permit them to take from their mother 18. In Louisiana, it is
expressly provided that a bastard has no rights of inheritance, and is entitled only to a mere
"alimony". Although there are some exceptions, the general tendency is to permit the child to
inherit from the mother whenever a legitimate child would be able to do so. Thus, thirty
jurisdictions provide that the bastard is the heir of his mother and inherits her estate as if the
child were born in lawful wedlock five provide, simply, that the illegitimate child inherits
from his mother; three provide that the bastard is capable of inheriting on the part of the
mother as if lawfully begotten of her; while one provides that he inherits from the mother the
18
INHERITANCE BY AND FROM BASTARDS
same as those children who are born in wedlock. Several exceptions may be mentioned. In
the District of Columbia, the bastard may not take from the mother in case she is mentally
incapacitated from making a will and remains so until her death. Although, ordinarily,
illegitimate children may inherit from the mother in Florida, those resulting from a prohibited
marriage between white and colored persons may not. In North Carolina, an exception is
made denying the bastard the right to inherit property conveyed or devised to the mother by
the father of her legitimate children, if any of the latter survive her. In New York, the child
may take by descent only when no lawful issue of the mother survives. Inheritance by the
bastard from the father is possible in four states. The very advanced legislation in Arizona
and North Dakota provides that every child is the legitimate child of its natural parents and is
entitled to inherit from its natural parents and their kindred heir, lineal and collateral, the
same as if born in lawful wedlock.

In considering the statutes bearing upon this subject, it is well to remember that at
common law the lawful issue of an illegitimate child may inherit from him, that a surviving
spouse has rights of curtesy or dower, or is entitled to a statutory share under statutes of
descent and distribution. Some of the statutes herein discussed expressly recognize the rights
of the issue and spouse; but others merely make an affirmative statement to the effect that the
mother, her next of kin, or others, may inherit from the bastard. Under the latter type of
statute it will no doubt be held that the rights of the issue and spouse existing under the
common law are not destroyed. The statutes of forty-seven jurisdictions provide that the
mother may inherit from the illegitimate child. Connecticut and Louisiana possess no statutes
bearing upon the subject. In Arizona and North Dakota, where all children are declared to be
legitimate, there is an express provision concerning inheritance by the child from the parents,
but no mention is made of inheritance from the child. Since all children are declared to be
legitimate, a broad construction of the statute would result in their being treated as such for
all purposes of inheritance. It is possible, however, that the phrase conferring rights of
inheritance upon the child will be held to limit the effect of the statute upon inheritance so as
to deny the parents a right to inherit from the child.

CONFLICT OF LAWS WITH REGARD TO THE SUCCESSION OF AN

ILLEGTIMATE CHILD:
 A branch of English Private International Law which has received surprisingly little
judicial attention is that relating to the rights of children adopted overseas to succeed as
children or issue under English wills or on English intestacies.' Indeed, it was not until 1954
that an English case on this specific question found its way into the reports, this was the
decision of Vaisey J. in Re Wilson, Grace v. 19Lucas, which was followed two years later by
the decision of Barnard J. in Re Wilby.20 It will be recalled that in both cases it was held that
the only type of adoption the courts will recognise for the purposes of the English law of
succession is an adoption effected in terms of the Adoption Act, 1950, and that it is
impossible, for the above purposes, to bring a foreign adoption within the scope of section 13
of that Act.

English courts have recognised a foreign status of legitimacy conferred by

legitimation per subsequens matrimonium, and have allowed such children to succeed to
personal estate in England as legitimate children. Further, it appears from the cases that a
foreign status of legitimacy confers on the claimant a capacity in England to take property
under English will irrespective of his capacity or incapacity in this respect under his lex
domicilii. Accordingly, while the claimant's status is governed by the law of his domicile, his
capacity to take under an English will is governed by English law as the lex succession. If,
therefore, a status of legitimacy has been acquired through the operation of the lex domicilii,
an English court will attach to the child whose status is in question precisely the same
capcities and incapacities to which an English legitimate child is subject. From this position it
follows that if the status of legitimacy is conferred on a child through the operation of the
relevant adoption law that adopted child must have the same capacities and incapacities, for
the purposes of the lex successionis, as a child legitimate in England.

Thompson v. Thompson21, Archibald Thompson died in 1879 domiciled in New

South Wales. By his will, his trustees were directed to " divide the annual income of my said
trust estate equally share and share alike to and among my wife Jane Thompson and all my
children and the issue of any deceased child or children of mine . . . during their respective
lives or until the final distribution of my said trust estate." In earlier proceedings it had been
declared that the persons entitled to share in the income of the testator's estate until the death
of his last surviving child were his widow, his children alive from time to time, and the issue
of such one or more of the said children as should have died prior to the death of the last
19
(1954) CH 733
20
3 [1956] 2 W.L.R. 262
21
0 (1950) 51 S.R.N.S.W. 102
surviving child. The defendants, Eric Langdon Thompson and Oscar Macdonald Thompson,
werc born in England in 1898 and 1900 respectively. In 1930 their mother and their father,
Frederick Charles Thompson, who had since before 1927 been domiciled in England,
married, and the children were subsequently rendered legitimate under the Legitimacy Act,
1926, s. 1 (1). The question before the court was whether the two children of Frederick
Charles Thompson were entitled to take as “issue “under Archibald Thompson's will

It was held that the two defendants were entitled to share as “issue “under their grand-
father's will. If, therefore, a status of legitimacy has been acquired through the operation of
the lex domicilii, an English court will attach to the child whose status is in question precisely
the same capcities and incapacities to which an English legitimate child is subject. From this
position it follows that if the status of legitimacy is conferred on a child through the operation
of the relevant adoption law, that adopted child must have the same capacities and
incapacities, for the purposes of the lex successionis, as a child legitimate in England

In Boyes v. Bedale22 a testator bequeathed the sum of £5,000 to his nephew, Edmund Burns
Clegg, for life, the remainder to his wife for life, and the remainder among his "children " on
their attaining the age of twenty-one years. After the death of the testator, Clegg, having
acquired a French domicile, also acquired an illegitimate daughter by one Marie Anne Croc,
whom he subsequently married in France, the child being legitimated according to French
law by contemporaneous acknowledgment. The question was on the construction of a
bequest in the will of a domiciled Englishman to the children of a person named. The Vice-
Chancellor held that a child exactly in the same position as Hannah Pieret was not entitled
under the bequest. He said that the will being that of a domiciled Englishman it must be
construed according to English law, which in my opinion is correct so far as to require that
this word ' children ' shall be construed ' legitimate children.' But he held that English law
recognised as legiti- mate only those children born in wedlock

CONCLUSION

With the increasing transnational movement of the population and the growing
concept of global citizenship, the issue relating to legitimacy, legitimation and adoption has
become nothing less than „complex‟. The position in England has changed and has given
respect to the lex domicile. Foreign orders on legitimacy and legitimation are recognized in
England, though adoption is still governed under the domestic laws. On the other hand, in

22
(1863) 1 H. & M. 798.
India, adoption is majorly influenced by personal laws and with no recognition to
Legitimation. Consequently, it is natural that in the countries devoted to the principle of
domicil the law of the domicil of the family head at the birth of the child determines the
latter's legitimacy; furthermore, his law at the time of a legitimation or adoption governs the
conditions and effects of such acts, as at later dates it indicates the rights and duties following
from legitimate father-child relations. The inheritance law of a domicil acquired after
legitimate birth, legitimation, or adoption ought not to change any of their effects, unless
there is a distinct, exceptional public policy, either prohibitive or permissive, at the forum of
inheritance.

CASE ANALYSIS

In Re, Estate of Spano

TITLE OF THE CASE: In Re, Estate of Spano

CITATION:  229 A.2d 645, 49 N.J. 263

AUTHOR: C Thomas Schettino

FACTS OF THE CASE:

Santo Spano was born in Italy to parents who never married. When Santo was 7 years
old his father, Alberto Spano, immigrated to New Jersey, but continued to support him in
Italy until he reached majority. When Santo was 30 his father executed a document
acknowledging Santo as his natural child.2 Thereafter, Santo joined his father in New Jersey,
lived with him as his son, and became an American citizen. Alberto died intestate in New
Jersey, leaving no widow and no other children, and Santo claimed the right to inherit as
Alberto's sole heir

ISSUES:

1. Whether a child acknowledged by his natural father under Italian law is entitled to
inherit his fathers estate in New Jersy?
2. whether a particular child has acquired the requisite status of legitimacy to bring him
within the class of persons permitted to inherit in New Jersey
3. A preliminary determination must be made as to whether the effect of the
acknowledgment of Santo by Alberto is governed by Italian law or New Jersey law.
 4. The issue now becomes whether a child validly acknowledged under the law of Italy
has a status sufficient to enable him to inherit under New Jersey law. We hold that a
child so acknowledged may inherit under New Jersey law.

REASONING:

1. The administrator contends that Santo is not the legitimated child of decedent Alberto
Spano within the meaning of N.J.S. 3A:4-7, which provides:

"For the purpose of descent and distribution under this chapter to, through and from an
illegitimate child, such child shall be treated the same as if he were the legitimate child of his
mother, so that he and his issue shall inherit and take from his mother and from his maternal
kindred, including his maternal ancestors, descendants and collaterals; and they, from him
and his issue. When parents of an illegitimate child shall marry subsequent to his birth and
recognize and treat him as their child, such child shall be deemed to have been made the
legitimate child of both of his parents for the purpose of descent and distribution to, through
and from him under this chapter." the administrator argues that the status of an acknowledged
natural child under Italian law is not the equivalent of a legitimate child under Italian law
and, therefore, even if Italian law is applied to determine the legitimacy of Santo, his claim
must still be rejected. As Santo is not Alberto's legitimate child, he may not inherit from
Alberto.

2. It does not necessarily follow that for one to be the acknowledged natural son of his
father he must be such under the internal law of the situs of the land to be inherited,
for under New Jersey conflict of law rules, the status and relationship of a person to
another person are fixed by the law of the state or country having jurisdiction to grant
the status so claimed.
3. The status of an acknowledged natural child is a hybrid status between legitimate and
illegitimate child known to civil-law countries but not to common-law countries. The
early common-law courts showed an unyielding refusal to give any legal recognition
to an illegitimate child. Their attitude was described by Blackstone when he wrote
that "[such a child's] rights are very few, being only such as he can acquire; for he can
inherit nothing, being looked upon as the son of nobody; and sometimes called filius
nullius, sometimes filius populi." 
4. The acknowledgment is a declaration made by one or both of the parents, jointly or
separately, Art. 250, to the effect that the father (or mother) recognizes the individual
 as his child. If acknowledged by the father or both parents, the child adopts the name
of the father. If acknowledged by the mother, the child takes the name of the
mother. Art. 262. The natural parents must support the recognized child and must
maintain, educate, and instruct the child as if the child were
legitimate. Art. 261; Constitution of the Republic of Italy, Art. 30. See Cappelletti,
Merryman, Perillo, The Italian Legal System, p. 287 (Stanford University Press
1967). The acknowledgment shall be made, in the registry of birth, by a declaration
after the birth or the conception of the child, before a judge, in a public document, or
in a will. Such an acknowledgment is irrevocable. Arts. 254 and 256.

CONCLUSION:

Under his status as an acknowledged natural child, Santo was given the name of his father
and was entitled to support, maintenance, education and instruction from his father as if he
were legitimate. The acknowledgment also brought with it a change in the registry of his
birth. Because Alberto had no legitimate descendants, Santo, as his acknowledged natural
child, has sole rights to inherit Alberto's entire estate. Under Italian law an illegitimate child
acknowledged by his father ac- quires certain rights of support and inheritance.3 However,
under New Jer- sey law an illegitimate child may inherit his intestate father's property only if
his parents "marry subsequent to his birth and recognize and treat him as their child."4 A
New Jersey probate court held Santo illegitimate and therefore ineligible to inherit. The
Supreme Court of New Jersey reversed, holding that Santo's status as an acknowledged
natural child under Italian law made him eligible to inherit from his father in New Jersey

Fuhrhop v. Austin

TITLE OF THE CASE: Fuhrhop v. Austin

CITATION: 385 Ill. 149 (Ill. 1943)

FACTS OF THE CASE:

Abner Wilson and Synder Wilson were lawfully married. Out of this lawful marriage,
Fred Walter Wilson, Beatrice Fuhrhop, Gertrude Austin, Willian S. Wilson and Thomas C.
Wilson were born. Abner Wilson entered into a secod marriage with Liza E. Newsom without
giving divore to the 1st wife. This marriage took place in the State of Arkansas, where both
Abner M. Wilson and Liza E. Newsom were domiciled, and was a ceremonial marriage
performed by a justice of the peace according to the laws of Arkansas. Abner M. Wilson and
Liza E. Newsom continued to live together as husband and wife domiciled in Arkansas after
their marriage and, while so living together, Christine Wilson and Margaret Wilson Joyner,
the appellees herein, were born unto them. Fred Walter Wilson, one of the children of Abner
M. Wilson by his first marriage, died intestate on, leaving surviving him as his only heirs, his
mother, Sydner Wilson, his four full brothers and sisters, Beatrice Fuhrhop, plaintiff below,
the defendants, Gertrude Austin, William S. Wilson and Thomas C. Wilson, and also the
defendants and counterclaimants, Christine Wilson and Margaret Wilson Joyner, who claim
to be his legitimate half sisters. At the time of his death Fred Walter Wilson possessed a fee
simple title to real estate located in Illinois which is the subject of this partition suit. Abner
Wilson predeceased Fred Walter Wilson and Sydner Wilson died testate after Fred Walter
Wilson on July 28, 1942, leaving surviving her the aforesaid Beatrice Fuhrhop, Gertrude
Austin, William Wilson and Thomas C. Wilson, her children, as her only heirs-at-law. Under
the terms of the will of Sydner E. Wilson her executor is directed to turn all her property into
cash and divide same equally among her four children above mentioned.

ISSUES:

1. Whether the illegitimate sisters can claim the property?

CONTENTIONS:

1. That under the Illinois Statutes the appellees are deemed illegitimate and cannot
inherit an interest in land in Illinois through their father.
2. That descent and heirship of real estate are exclusively governed by the laws of the
State of the situs of the real estate and no person can take except those who are
recognized as heirs by the laws of that State.
3. That the law of Arkansas has no application to the instant case since the Arkansas law
is in conflict with the Illinois law on the subject and contrary to the public policy of
Illinois.
4. The full-faith-and-credit clause of the constitution does not require the Illinois courts
to apply the law of Arkansas where there is a conflict and the Arkansas law is
contrary to the public policy of Illinois.

REASONING:

That under the law of Arkansas the appellees, at the time of their birth, were legitimate; that
legitimacy depends upon the law of the domicile and since appellees are legitimate under the
laws of Arkansas, they are legitimate under the laws of Illinois and are to be deemed
legitimate sisters and brothers of Fred Walter Wilson. That the legitimization of the
appellees, under the law of Arkansas, is not against the public policy of Illinois but is
consistent therewith. The full-faith-and-credit clause of the constitution of the United States
requires the recognition of legitimation given by the statute of Arkansas. There is no dispute
between the appellants and appellees as to the shares which each should have in the real
estate in the event it is determined that the appellees are entitled to inherit from Fred Walter
Wilson, deceased. It is well settled at common law that the issue of a void marriage are
illegitimate. The only statute in Illinois which undertakes to legitimatize the illegitimate issue
of a void marriage was the act of June 26, 1923, (Ill. Rev. Stat. 1941, chap. 89, par. 17a,)

CONCLUSION:

The Illinois court refused to allow children born in Arkansas and legitimated under an
Arkansas "saving statute" to inherit Illinois land. The claimants were children of a man who
had not divorced his first wife, although his second wife (the claimant's mother) had married
in good faith. The Arkansas statute provided that the issue of a legally void marriage are
legitimate, but Illinois still had the common law rule that issue of a void marriage are
illegitimate. The court again relied on the principle that the descent of real estate is governed
by the law of the situs, and that no one can take except those who are recognized as
legitimate heirs by that law.

In Re, Crossley's Estate

TITLE OF THE CASE: In Re, Crossley's Estate

CITATION: 135 Pa. Super. 524 (Pa. Super. Ct. 1939) , 7 A.2d 539

FACTS OF THE CASE:

Irene Crossley, the defendant in this case was married twice. By the 1 st marriage with
Martin A. Powell. she bore a daughter, Evelyn Powell, who on July 21, 1894, was legally
adopted by Edward Allen and wife, by decree of the Probate Court of Muskingum County,
State of Ohio. By the decree of adoption Evelyn Powell took the name of her adopting
parents, and later married John. Two children were born of this union, Edward Allen
LaShelle and John Morris LaShelle, appellants herein, now residing in Zanesville, Ohio. The
decedent, after the death of her first husband, married one Crossley, who died during her
lifetime. Irene Crossley was a resident of the State of Pennsylvania when she died intestate on
February 4, 1936. The estate on distribution, was awarded to a sister of decedent and to the
children of a deceased sister, as next of kin, to the exclusion of appellants.

ISSUE:

The question of the right of the natural grandchildren to take from the estate of their
grandmother under the intestate laws of this state, notwithstanding the adoption of their
mother in the State of Ohio by adopting parents not of the blood of decedent

REASONONG:

By the terms of the decree of adoption in Ohio the mother of the appellants became "to all
intents and purposes" the child of Edward Allen and Mattie E. Allen, the adopting parents,
but in that proceeding no right to inherit from or through the natural parent was reserved as in
Hall's Estate, 20 Pa. D. C. 214. Notwithstanding that fact, it is conceded that under the laws
of the State of Ohio a legally adopted child may inherit from natural parents or other kin, and
that right has been uniformily upheld in appellate courts of that state. The law of Ohio in this
respect is in violent conflict with Section 16 (b) of the Intestate Act of June 7, 1917, P.L. 429,
which provides: "Adopted persons shall not be entitled to inherit or take from or through their
natural parents, grandparents, or collateral relatives, but each adopted person shall have all
his or her rights under this act in the estates of his or her spouse, children, and descendants."

There is lack of unanimity in the decisions of the various states determining conflicts of law
between the state of adoption and the state where the right to inherit is *527 asserted. One
view is that the law creating the status controls the right of inheritance though inconsistent
with the law of decedent's domicile or situs of the property. To the contrary are the decisions
of those states which hold that the law of the situs of the property or of the decedent's
domicile, controls. See cases collected in 73 A.L.R. 964-980. We are all of the opinion that
the latter rule has the better foundation in reason.

CONCLUSION:

1. Natural grandchildren may not take from the estate of their grandmother under the
intestate laws of this state, where their mother was adopted in another state by
adopting parents not of the blood of decedent, even though under the law of the other
state a legally adopted child may inherit from natural parents or other kin.
2. The law of the situs of the property or of the decedent's domicile controls the right of
inheritance although inconsistent with the law of the state creating the status.
 3. The intent of section 16(b) of the Intestate Act of June *525 7, 1917, P.L. 429, is that
it shall apply to adopted persons generally, whether the persons were adopted under
the laws of the State of Pennsylvania or elsewhere. 525
4. The right to transmit or to receive property by will or through intestacy is not a natural
right, but a creature of statutory grant. 5. Personal property has no situs but follows
the person of the owner and is distributed according to the intestate laws of the
owner's domicile.

The above restriction of the Intestate Act applies to "adopted persons" wherever adopted,
and to persons claiming through them and since decedent was domiciled in this state at
the time of her death the distribution of her estate is governed by the Intestate Act of this
state and appellants are not entitled to share in the estate

Wolf vs. Gall

TITLE OF THE CASE: Wolf v. Gall

CITATION: 163 P. 346 (Cal. Ct. App. 1916)

FACTS OF THE CASE:

Arturo Wolf and Maria Julia Wolf, the respondents in this case, are the children born
out of wedlock of Newman Wolf and Carmen Gonzales, and seek to have awarded to them a
share in the property described in the complaint as heirs at law of Tobe Funkenstein,
deceased, their grandmother, by right of representation of their deceased father, it being the
claim of respondents that the subsequent marriage of their parents legitimated them by virtue
of the provisions of section 215 of the Civil Code, and that their  adoption by their father into
his family in connection with such marriage also had for its effect their legitimation under
section 230 of the same code. The court, among other things, decreed that the respondents are
heirs at law of said Tobe Funkenstein, and entitled to succeed to a part of her estate, and it is
from this portion of the judgment that the defendants have appealed.

ISSUES:

1. Whether the respondents are capable of inheriting any part of their grandmother's
estate
 2. Whether the right given to illegitimates of succession to the estate of lineal or
collateral kindred of their parents is expressly limited to the estates of their brothers
and sisters
3. Whether the marriage was null and void

REASONING:

Equally without merit is the contention of the appellants that the marriage of Newman Wolf
and Carmen Gonzales was a nullity, by reason of Wolf's mental condition at the time of its
celebration. The evidence does not show him to have been entirely without understanding.
the fact that Wolf was an alien and domiciled outside of California renders ineffectual the
acts claimed to result in the legitimating of respondents. While it is generally true that the
laws of one state or country have  no extraterritorial effect, on the other hand, when the status
of a person is under consideration before the courts of this state in questions of succession,
they will apply our own statutes in determining the status of the claimant to the succession;
and if the claimant shows that by applying our law he is entitled to take as a legitimate child,
it is sufficient, and the fact that by the law of his own country he is not legitimate is
immaterial.  the principal contention of the appellants in the case and the one argued at length
by them, viz., that in any event the respondents, being born out of lawful wedlock, are not
capable of inheriting any part of their grandmother's estate, for the reason that to so inherit
they must take by right of representation of their father, and that by section 1387 of the Civil
Code the right given to illegitimates of succession to the estate of lineal or collateral kindred
of their parents is expressly limited to the estates of their brothers and sisters.

"Every illegitimate child is an heir of the person who, in writing, signed in the presence of a
competent witness, acknowledges himself to be the father of such child; and in all cases is an
heir of his mother; and inherits his or her estate, in whole or in part, as the case may be, in the
same manner as if he had been born in lawful wedlock; but he does not represent his father or
mother by inheriting any part of the estate of his or her kindred, either lineal or collateral,
unless, before his death, his parents shall have intermarried, and his father, after such
marriage, acknowledges him as his child, or adopts him into his family; in which case such
child and all the legitimate children are considered brothers and sisters, and on the death of
either of them, intestate, and without issue, the others inherit his estate, and are heirs, as
hereinbefore provided, in like manner as if all the children had been legitimate; saving to the
father and mother, respectively, their rights in the estates of all the children in like manner as
if all had been legitimate."

CONCLUSION:

It was held that in succession matters the courts of that state would apply California
statutes to determine the status of the claimant. If the claimant could show that he is entitled
to take as a legitimate child under the California statutes, it is immaterial that by the law of
his own country he is illegitimate. Here the statute in question was held to confer legitimate
status on the claimants even though their father was an alien and domiciled outside California
at the time he performed the acts which resulted in legitimation. It is not clear whether
movable or immovable property or both were involved in the estate claimed.