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20 H. 3, CAP. 9, BASTARDS. 45) not admitted, and as such may inherit in France. From which the con- clusion is that neither the law of the parent's actual domicil nor of the place where the marriage was celebrated determines the status of the party, his capacity to become legitimate being conferred on him by his domicil of origin. But in intestacy the law of the intestate's domicil governs in cases of succession to personal property as does the law of the situs of real pro- perty in inheritance of lands or immovables, and it is clear therefore that in a case of conflict the law of the domicil of origin must yield to the law of the situs of real property or of the domicil of the intestate, according to the nature of the estate. Hence if either law excludes bastards, those legiti- mated only by subsequent marriage are not admissible to succession or in- heritance. Perhaps then our Act goes no further than this, that if the father be domiciled in Maryland it is of no consequence in what country his children may have been born, or his marriage with the mother have been celebrated, nor what the law of that country is as to the legitimation of bastards by a subsequent marriage, so far as property in Maryland is con- cerned; and to the like extent, the birth of a bastard in Maryland confers on him the capacity of legitimation by the subsequent marriage of his parents and acknowledgment by his father. Right* of illegitimates to inherit and transmit inheritance.—The original Act of 1825, ch. 156, was restricted to the relations there stated among the illegitimates, excluding the legitimates from any participation, nor was the mother allowed to take from her illegitimate child unless the disqualifica- tion was removed by marriage, Stewart v. Miller, supra. And it was de- cided in construction of the Act by the Supreme Court in the case of Brew- er's Lessee v. Blougher, 14 Peters, 178, that its words being general in- cluded all persons coming within the description of illegitimate children, and consequently that the issue of an incestuous connection between father and daughter were capable of taking from each other. "An illegitimate child," said the Court, "is films nullus, and can have no father known to the law. When the legislature speak in general terms of children of that description without making any exception, we are bound to suppose they de- sign to include the whole class. And as illegitimate children in a question as to the inheritance or distribution of property can have no father whom the law will acknowledge as such, how can we in a controversy like this in- quire who was the father of these "children in order to determine 35 upon their right to the property?" In Carroll v. Carroll's Lessee, 16 How- ard, 275, the same Court observed that this case of incestuous bastards had 6 "But even at common law, the rule of nullius filius applies only to the case of inheritances. Bastards can acquire, hold, devise and convey estates real and personal. They can marry and are held amenable to the penalties of the law if they marry within the prohibited degrees. Their children born in wedlock and their descendants inherit from them. Personal property and effects are distributed in case of intestacy to the wife, husband, chil- dren and lineal descendants, and the widow has dower and the husband curtesy in realty." So where an illegitimate woman purchased land in 1829, married in 1831 and died intestate in 1853, without leaving any de- scendants or kindred, her surviving husband was held entitled to the land under Code 1911, Art. 46, sec. 23. Southgate v. Annan, 31 Md. 113. |
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Alexander's British statutes in force in Maryland. 2d ed., 1912
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