heir of its father if duly recognized or acknowledged in writing. Generally, too, the subsequent marriage of the parents of an illegitimate child will legitimatize him.34

The statutory rule is that the illegitimacy of a child is to be determined according to the law of the parents' domicile, even though the will be executed elsewhere.35 Yet, although the child has been legitimatized under the statute, it has been held that such fact does not overcome the force of the rule excluding illegitimate children from taking under a devise or bequest to "children," and this even though such child may be capable of inheriting as if born in lawful wedlock. The capacity to inherit intestate property differs from the right to take under a will as a legatee or devisee; in the former case the heir takes by descent, in the latter the beneficiary takes

Tugwell, 31 Beav. 232; Chapman v.
Bradley, 33 Beav. 61; In re Bolton,
31 Ch. Div. 542; Howarth v. Mills,
L. R. 2 Eq. 389; Hill v. Crook,
L. R. 6 H. L. 265.

34 Where the parents of an illegitimate child subsequently marry, the child is not legitimatized unless the father, both at the time when the child was born and at the time of the marriage, was domiciled in the jurisdiction under which legitimacy is claimed.-In re Grove, 40 Ch. Div. 216.

of such alien extending to such non-resident alien's right to inherit real estate within the territorial domain.-Blythe v. Hinckley, 127 Cal. 431, 434, 59 Pac. 787.

But, compare, Doe v. Vardill, 2 Cl. & F. 571, 7 Cl. & F. 895.

See Miller v. Miller, 91 N. Y. 315, 43 Am. Rep. 669, where the subsequent marriage legitimatized their child born prior thereto.

35 In re Andros, 24 Ch. Div. 637; Skottowe v. Young, L. R. 11 Eq. 474; In re Grey's Trusts, (1892) 3 Ch. 88.

See, also, Adams v. Adams, 154 Mass. 290, 13 L. R. A. 275, 28 N. E. 260.

A statute legitimatizing an illegitimate by reason of acknowledgment by the father was held applicable to a non-resident alien who had never been within the jurisdiction of the United States, in absence of treaty provisions between the United States and the country 479. II Com. on Wills-24

36 Lyon v. Lyon, 88 Me. 395, 34 Atl. 180; Appel v. Byers, 98 Pa. St.

by purchase. The purpose of the statute has been said to be merely to render the child capable of inheriting." But the authorities are conflicting, and a child, once illegitimate, who has been legitimatized by acts according to statute, has been held to be included under the designation of "children" in a will; but no estate which has become vested prior to the legitimacy of such child can be disturbed.38 Yet when a testator leaves a gift in favor of the "lawful issue" of a designated person it is held that an illegitimate child of such person, although legitimatized by the marriage of his parents prior to the execution of the will, will not take. The use of the words "lawful issue" are understood, by laymen and in law, to refer to children begotten in lawful wedlock."

§ 846. Illegitimate Child as Heir of the Mother.

Although an illegitimate child is, by statute, made the lawful heir of his mother, it has been held that he will not, for that reason, be included within the term "is

37 Lyon v. Lyon, 88 Me. 395, 34 Atl. 180; Hicks v. Smith, 94 Ga. 809, 22 S. E. 153.

38 In re Grey's Trusts, (1892) 3 Ch. 88; Smith v. Lansing, 24 Misc. Rep. 566, 53 N. Y. Supp. 633; Gibson v. McNeely, 11 Ohio St. 131, 136; In re Miller's Appeal, 52 Pa. St. 113; In re Seitzinger's Estate, 170 Pa. St. 500, 32 Atl. 1097.

Compare: United States Trust Co. v. Maxwell, 26 Misc. Rep. 276, 57 N. Y. Supp. 53.

It is necessary that there be a complete legitimation to warrant the inclusion of a bastard in the words "issue," "child," and "children," as employed in wills or

deeds or statutes. Brisbin Huntington, 128 Iowa 166, 5 Ann. Cas. 931, 103 N. W. 144.

A legitimatized child has been included under the following designations: "lawful issue," Miller's Appeal, 52 Pa. St. 113; "heir," McGunnigle v. McKee, 77 Pa. St. 81, 18 Am. Rep. 428; "lawful heirs," Loring V. Thorndike, 5 Allen (Mass.) 257; "heirs of his body," McNicholl v. Ives, 3 Ohio N. P. 6. 39 United States Trust Co. v. Maxwell, 26 Misc. Rep. 276, 57 N. Y. Supp. 53.

See, also, Brisbin v. Huntington, 128 Iowa 166, 5 Ann. Cas. 931, 103 N. W. 144.

sue," 40 or "lawful issue." But an illegitimate child who inherits from his mother stands to her as an "heir by blood," or a "blood relation," and a devise to his mother for life with remainder over to her "heirs by blood," or "blood relations," will include such illegitimate child.42 The term "blood relations," generally speaking, as used in wills, refers to such persons as take under the statute regarding the distribution of the estates of intestates.48

§ 847. Adopted Children, How Considered.

Adoption is a matter regulated by statute in the various jurisdictions. After a complete compliance with all requirements, an adopted child becomes, in a legal sense, the child of the adopting parents. This, however, does not deprive him of his right to inherit from his natural parents unless the statute otherwise provides." After

40 Gibson v. McNeely, 11 Ohio St. 131.

41 Black v. Cartmell, 10 B. Mon. (Ky.) 188.

42 Elliott v. Elliott, 117 Ind. 380, 10 Am. St. Rep. 54, 20 N. E. 264; Hayden v. Barrett, 172 Mass. 472, 70 Am. St. Rep. 295, 52 N. E. 530; Gardner v. Heyer, 2 Paige (N. Y.) 11; Howell v. Tyler, 91 N. C. 207; Powers v. McEachern, 7 S. C. 290; Bennett v. Toler, 15 Gratt. (Va.) 588, 78 Am. Dec. 638.

The offense of the parents in the case of an illegitimate offspring under the humane laws of our day is not visited upon the children to the extent of preventing them from taking under a will regardless of the ordinary mean

ing of the term "blood relatives," of "child," or "heirs," or "next of kin" at common law. The intention of a testator as regards illegitimates is to be respected and effectuated by courts the same as his intention respecting lawful issue.-Estate of Sander, 126 Wis. 660, 5 Ann. Cas. 508, 105 N. W. 1064.

43 Nye v. Grand Lodge, 9 Ind. App. 131, 36 N. E. 429; Drew v. Wakefield, 54 Me. 291; Cummings v. Cummings, 146 Mass. 501, 16 N. E. 401; Gallagher v. Crooks, 132 N. Y. 338, 30 N. E. 746; Cleaver v. Cleaver, 39 Wis. 96, 20 Am. Rep. 30.

44 Wagner v. Varner, 50 Iowa 532, 534; Ross v. Ross, 129 Mass. 243, 245, 37 Am. Rep. 321.

adoption, the adopted child has all rights of inheritance as if born in lawful wedlock; and this right follows him although he may remove to some jurisdiction other than that of the adoption. And a child adopted by the son of a testatrix after her death is entitled to take under a devise "to such persons as would, by the intestate laws, be entitled if the son had died intestate."'46

The word "issue," used in a will, and there being nothing showing a contrary intent, will include an adopted child. The term "issue" includes all descendants, and an adopted child, by statute, assumes that status.47 How

45 Humphries v. Davies, 100 Ind. 274, 50 Am. Rep. 788; Ross v. Ross, 129 Mass. 243.

46 In re Johnson's Appeal, 88 Pa. St. 346.

In Alabama, under the peculiar statute of that state, the adoption must precede the execution of the testator's will, in order that the adopted child may share in a devise to the children.-Russell v. Russell, 62 Ala. 48.

47 Warren v. Prescott, 84 Me. 483, 30 Am. St. Rep. 370, 17 L. R. A. 435, 24 Atl. 948; Sewall v. Roberts, 115 Mass. 262; Pearce v. Rickard, 18 R. I. 142, 49 Am. St. Rep. 755, 19 L. R. A. 558, 26 Atl. 38.

Under the statutes of California, an adopted child inherits the same rights of inheritance as children born of the wedlock, although the statute prescribing the rules of succession uses the word "issue." -Estate of Wardell, 57 Cal. 484, 491; Estate of Newman, 75 Cal. 213, 7 Am. St. Rep. 146, 16 Pac. 887.

See, also, Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321.

Contra: Under the New Hampshire statute (Pub. Stat. 1901, c. 195, §§ 10-13) provided that a widow, by waiving the provisions of her husband's will in her favor may obtain, after the payment of his debts, one-third of his property where he leaves "issue" surviving him, and one-half where there is no surviving "issue," the same provision being made for the husband in case of the wife's death, an adopted child can not be considered as "issue," and each of the adopting parents is, with respect to the estate of the deceased spouse, in the same position as if there was no adopted child.Morse v. Osborn, 75 N. H. 487, Ann. Cas. 1912A, 324, 30 L. R. A. (N. S.) 914, 77 Atl. 403. See, also, Jenkins v. Jenkins, 64 N. H. 407, 14 Atl. 557; Phillips v. McConica, 59 Ohio St. 1, 69 Am. St. Rep. 753, 51 N. E. 445; Stanley v. Chandler, 53 Vt. 619.

ever, an adopted child is not an "heir of the body," this term being used generally in a technical sense and not being synonymous with the words "children" or "is

§848. Who Included in Term "Issue": Strict Rule.

As a general rule, the word "issue" when used as a word of purchase or limitation, includes descendants of all degrees.49

Thus, under a devise of a contingent remainder to the "male issue" of a certain person, those words are construed as words of purchase, and all the lineal male descendants are held entitled, whether sons or grandsons,