8641. Rights of Adopted Children.

Inasmuch as a child born in lawful wedlock may be disinherited, it follows that an adopted child may also be disinherited, because he can never have greater rights than direct issue;12 and where the parent can not cut off his issue, neither can he cut off the adopted child, their rights being the same.18 The failure to mention an adopted child in the will gives to such child the same rights as if he or she were the offspring of the testator.11

§ 642. Rights of Illegitimate Children.

The term "children" referred to in the statutes regarding pretermitted and after-born children relates to their status and right to inherit, not to their origin nor the legality of the relations which existed between those of whom they were begotten.15 Thus generally the term includes only legitimate children.16 The common law rule was that an illegitimate child could not be an heir nor have heirs except of his own body.17 In the United States this rule has been greatly modified by statute, an illegitimate child in several states inheriting from and

12 The property rights of an adopted child are the same as those of a natural child.-Odenbreit v. Utheim, 131 Minn. 56, L. R. A. 1916D, 421, 154 N. W. 741; Horton v. Troll, 183 Mo. App. 677, 167 S. W. 1081; Steele v. Steele, 161 Mo. 566, 61 S. W. 815; Logan V. Lennix, 40 Tex. Civ. App. 62, 88 S. W. 364; Clark v. West, 96 Tex. 437, 73 S. W. 797; Masterson v. Harris, (Tex.) 174 S. W. 570.

13 Hosser's Succession, 37 La. Ann. 839.

14 Thomas v. Maloney, 142 Mo. App. 193, 126 S. W. 522; Sandon v. Sandon, 123 Wis. 603, 101 N. W. 1089.

15 Wardell's Estate, 57 Cal. 484. 16 Kent V. Barker, 2 Gray (Mass.) 535; King v. Thissell, 222 Mass. 140, 109 N. E. 880; Mansfield v. Neff, 43 Utah 258, 134 Pac. 1160.

17 In re Don's Estate, 3 Jur. N. S. 1192, 4 Drew 190; Stoltz v. Doering, 112 III. 234; Cooley v. Dewey, 4 Pick. (Mass.) 93, 16 Am. Dec. 326.

through the mother;18 although in some jurisdictions the inheritance does not extend to the estates of the mother's ancestors or collateral relations.19 In a few instances the illegitimate may inherit from the father if recognized in the manner prescribed by statute.20 Such statutes, being in derogation of the common law, are generally strictly construed.21 If the statute with reference to pretermitted children uses the word "heirs" and "heirs" includes "children," a pretermitted illegitimate child should take under the estate of a parent from whom he may legally inherit.22 In California, where illegitimates inherit from the mother, such a child not mentioned in the mother's will takes as in the case of intestacy.23 The conclusion in Massachusetts, however, under the same circumstances, is directly contrary.24 And it has been held that an illegitimate child, the father of whom made his will after the

5

18 Stevenson V. Sullivant, Wheat. (18 U. S.) 207, 5 L. Ed. 70; Gregley v. Jackson, 38 Ark. 487; Heath v. White, 5 Conn. 228; Bales v. Elder, 118 Ill. 436, 11 N. E. 421; Parks v. Kimes, 100 Ind. 148; Stover V. Boswell's Heir, 3 Dana (33 Ky.) 232, 233; Neel v. Hibard, 30 La. Ann. 808; Hunt v. Hunt, 37 Me. 333; Moore v. Moore, 169 Mo. 432, 58 L. R. A. 451, 69 S. W. 278; Burlington v. Fosby, 6 Vt. 83, 27 Am. Dec. 535. 19 Flora v. Anderson, 75 Fed. 217; Williams v. Kimball, 35 Fla. 49, 48 Am. St. Rep. 238, 26 L. R. A. 746, 16 So. 783; Estate of Rees, 166 Pa. St. 498, 31 Atl. 254; Brown v. Kerby, 9 Humph. (28 Tenn.) .460.

20 Van Horn v. Van Horn, 107

137 U. S. 682,

21 Cope v. Cope, 34 L. Ed. 832, 11 Sup. Ct. 222; Brewer v. Hamor, 83 Me. 251, 22 Atl. 161; Pratt v. Atwood, 108 Mass. 40.

22 Howell v. Tyler, 91 N. C. 207. 23 Estate of Wardell, 57 Cal. 484, 493. And see Estate of Garraud, 35 Cal. 336; Estate of Utz, 43 Cal. 200; Bush v. Lindsey, 44 Cal. 121; Heath v. White, 5 Conn. 228.

24 Kent V. Barker, 2 Gray (Mass.) 535. See, also, King v. Thissell, 222 Mass 140, 109 N. E. 880.

child's birth and before his marriage to the mother, could not be considered as an after-born child.25

§ 643. Forced Heirs: Law of Louisiana.

The power of the owner to dispose of his property by donations inter vivos or mortis causa is limited by the number of his children living when he dies, hence called forced heirs. When he leaves a daughter and the children of two deceased daughters, the disposable portion is onethird; the other two-thirds being the legitime of the forced heirs.26

The method of ascertaining the disposable portion is to add to the property of the deceased left at his death the value of all property he has disposed of by donations inter vivos, deducting his debts, and the residue determines the disposable portion according to the number of his children, and fixes also their legitimate share of the estate as the forced heirs of the deceased.27

§644. Nature of Ownership of Forced Heirs.

Whether forced heirship is ownership in its full sense, of which the heir is seised of right, as applied to property embracing the legitime in the hands of third persons to whom the property has passed by the donations, nominal sales, or similar acts of the deceased donor to the prejudice of his forced heirs, it is clear that by his death the right of action is vested in them to reduce or set aside such acts as impair their legitime, and to recover it from third persons holding under transfers from the donee.28

25 McCulloch's Appeal, 113 Pa. St. 247, 6 Atl. 253.

26 Rev. Civ. Code, arts. 1493, 1495; Cox v. Von Ahlefeldt, 50 La. Ann. 1266, 23 So. 959.

27 Rev. Civ. Code, arts. 1505,

1506; Cox v. Von Ahlefeldt, 50 La Ann. 1266, 23 So. 959.

28 Rev. Code, arts. 1493, 1495, 1504, 1517; Code Napoleon, art. 930, 2444; Cox v. Von Ahlefeldt, 50 La. Ann. 1266, 23 So. 959.

This right of action of the forced heir passes to his heirs and assigns.29

The suit of the forced heir is not a revocatory action, but one of reduction or revendication to preserve or recover the legitime, of which he can not be deprived by the donations or similar acts of the deceased donor, and to which no alienation by the donees can convey title.30

29 Rev. Civ. Code, art. 1504; 3 Boilleux Comm., sur art. 920, Code Napoleon; Tompkins v. Prentice, 12 La. Ann. 465; Cox v. Von Ahlefeldt, 50 La. Ann. 1266, 23 So. 959. 80 Rev. Civ. Code, art. 1517;

Code Napoleon, art. 930; Croizet's Heirs v. Gaudet, 6 Mart. O. S. (La.) 524, 529; Lewis' Estate, 32 La. Ann. 385; Cox v. Von Ahlefeldt, 50 La. Ann. 1266, 23 So. 959.

ARY

CHAPTER XXIV..

CLASSIFICATION OF LEGACIES AND DEVISES.

§ 645. Legacies classified.

§ 646. Intention of testator prevails: Specific legacies not fa

vored.

§ 647. General legacies defined.

$648. The same subject: Illustrations.

§ 649. Specific legacies defined.

$650. The same subject: As of the date of the will. §651. The same subject: Descriptive words.

§ 652. Money may be specifically bequeathed.

$653. Stocks, bonds, and securities.

§ 654. Insurance policies.

§ 655. Proceeds from sales.

656. Real estate.

§ 657. Distinction between specific and demonstrative legacies.

§ 658. Demonstrative legacies defined.

§659. The same subject: Illustrations.

§ 660. The same subject: Sources from which they may be directed to be paid.

§661. Annuities defined.

§ 662. Annuity and gift of income distinguished.

§ 663. Time when annuities are payable.

§ 664. Duration of payment of annuities.

§ 665. From what source delinquent installments of an annuity may be collected.

§ 666. Interest on delinquent payments of an annuity.

§ 667. Apportionment upon death of annuitant: When allowed.

§ 668. Residuary devises and legacies defined.

§ 669. The same subject: No particular form of words necessary.

$670. Who are residuary devisees or legatees.

§ 671. Residuary devises and legacies usually classed as general. § 672. Position of the residuary clause.

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