A gift to the children of a man by a designated woman with whom he is unlawfully cohabiting, does not pass to their illegitimate offspring, for the parents may after ascertaining who is to participatę in the gift they do include such a child, since it is for its benefit to be included.-Villar V. Gilbey, (1907) A. C. 139; Evans v. Davies, 7 Hare 498; Savage v. Robertson, L. R. 7 Eq. 176; In re Goodwin's Trust, L. R. 17 Eq. 345; Dorin v. Dorin, L. R. 7 H. L. 568; Brown v. Bolton, 31 Ch. Div. 542; In re Fish, (1894) 2 Ch. 83; In re Du Bochet, (1901) 2 Ch. 441; Flora v. Anderson, 67 Fed. 182; Hughes V. Knowlton, 37 Conn. 429; Johnstone v. Taliaferro, 107 Ga. 6, 45 L. R. A. 95, 32 S. E. 931; McDonald v. Pittsburg etc. Ry. Co., 144 Ind. 459, 55 Am. St. Rep. 185, 32 L. R. A. 309, 43 N. E. 447; Brisbin v. Huntington, 128 Iowa 166, 5 Ann. Cas. 931, 103 N. W. 144; Adams V. Adams, 154 Mass. 290, 13 L. R. A. 275, 28 N. E. 260; Hayden v. Barrett, 172 Mass. 472, 70 Am. St. Rep. 295, 52 N. E. 530; Van Derlyn v. Mack, 137 Mich. 146, 109 Am. St. Rep. 669, 4 Ann. Cas. 879, 66 L. R. A. 537, 100 N. W. 278; Gates v. Seibert, 157 Mo. 254, 80 Am. St. Rep. 625, 57 S. W. 1065; Heater v. Van Auken, 14 N. J. Eq. 159; Van Voorhis V. Brintnall, 23 Hun (N. Y.) 260; Miller v. Miller, 79 Hun (N. Y.) 197, 30 N. Y. Supp. 116; Collins v. Hoxie, 9 Paige Ch. (N. Y.) 81, 88; Doggett v. Mosely, 52 N. C. (7 Jones L.) 587; Kirkpatrick v. Rogers, 41 N. C. (6 Ired. Eq.) 130, 135; Gibson v. Moulton, 2 Disn. (Ohio) 158; Appel v. Byers, 98 Pa. St. 479; Bealafeld v. Slaughenhaupt, 213 Pa. St. 565, 62 Atl. 1113; Shearman v. Angel, 1 Bail. Eq. (S. C.) 351, 23 Am. Dec. 166; Ferguson v. Mason, 2 Sneed (34 Tenn.) 618. Testator left his property to his children equally, there being four daughters, one of whom was not known to be illegitimate, she living with him as the others and being treated the same. Although it was evidently intended the illegitimate child should take, the lord chancellor said "it was impossible, in a court of justice, to hold that an illegitimate child could take equally with lawful children upon a devise to children."Cartwright v. Vawdry, 5 Ves. Jun. 530. In Black v. Cartmell, 10 B. Mon. (Ky.) 188, the testator, in effect, devised property to his daughter Catherine, and provided that if she died without lawful issue of her body it should go to his heirs. Catherine left an illegitimate son, and the court held that, though a lawful heir of her body, he was not lawful issue of her body, as the latter was interpreted to mean the descendants of the person, and that the fact that the illegitimate child may inherit from the mother seemed "hardly sufficient ground ward marry and have legitimate children.20 Where, however, the bequest is to the children of a person, dead at the date of the will, who left none but illegitimate children, and these facts may be presumed to have been known to the testator, the illegitimate children will be deemed to have been the ones intended to receive the benefit.21 But a gift to the children of a woman forty-nine years of age who has none but illegitimate children, has been held not to pass to them.22 Illegitimate children may be included under a bequest to children" of a deceased person who left but one legitimate child, if the testator may be presumed to have been acquainted with the facts.23 In such cases it is es for saying that he is embraced in the words 'lawful issue,' as he certainly would not be in the words 'lawful descendants.'" To provide for an illegitimate child is not against public policy.— Smith v. Du Bose, 78 Ga. 413, 6 Am. St. Rep. 260, 3 S. E. 309. In Louisiana the proportion that a natural parent may leave his children is fixed by statute, see La. Civ. Code, arts. 1483-1488. In South Carolina, if the testator leave a wife or legitimate children, he can not leave over onefourth to his natural children, and this can not be evaded by a secret trust.-Bouknight v. Brown, 16 S. C. 155; Gore v. Clark, 37 S. C. 537, 20 L. R. A. 465, 16 S. E. 614. As to illegitimate children and their rights, see § 642. 20 Kenebel v. Scrafton, 2 East 530. 21 Woodhouselee v. Dalrymple, 2 Mer. 419; Gill v. Shelley, 2 Russ. & M. 336; Herbert's Trusts, 1 Johns. & H. 121. 22 In re Overhill's Trusts, 1 Smale & G. 362. 23 Gill v. Shelley, 2 Russ. & M. 336; Leigh v. Byron, 1 Smale & G. 486; In re Bryon, 30 Ch. Div. 110; In re Jodrell, 44 Ch. Div. 590. The same principle was applied where the gift was to the children of the testator's nephews, and he had but one legitimate nephew and no living brother or sister.-Tugwell v. Scott, 24 Beav. 141. If illegitimate children are intended, a child en ventre sa mere may be included, but an illegitimate child born after the death of the testator and not at such time en ventre sa mere, can not take.Hill v. Crook, 6 H. L. Cas. 265; In re Shaw, (1894) 2 Ch. 573; In re Hastie's Trusts, 35 Ch. Div. 728. sential that the testator's knowledge of the facts may be inferred. Even where the gift is to the children of a living person, the context of the will may show that illegitimate children are intended,25 as where the bequest is to the children "now living" of a certain person who at the date of the will has none but illegitimate children.20 And a bequest to an illegitimate child by name 24 Hart v. Durand, 3 Anstr. 684; Gill v. Shelley, 2 Russ. & M. 336, 342; In re Herbert's Trusts, 1 Johns. & H. 121; Edmunds v. Fessey, 29 Beav. 233. 25 Hill v. Crook, L. R. 6 H. L. 265; In re Walker, (1897) 2 Ch. 238; Lyons v. Lyons, 88 Me. 395, 34 Atl. 180; In re Seitzinger's Estate, 170 Pa. St. 500, 32 Atl. 1097; Smith v. Lansing, 24 Misc. Rep. 566, 53 N. Y. Supp. 633; In re Scholl's Estate, 100 Wis. 650, 76 N. W. 616. An illegitimate child was included where the words of the will were, "all the children of her body."-Sullivan v. Parker, 113 N. C. 301, 18 S. E. 347. With reference to including illegitimate children, Lord Eldon said: "In construing a will, conjecture must not be taken for implication, but necessary implication means not natural necessity, but so strong a probability of intention that an intention contrary to that which is imputed to the testator can not be supposed."Wilkinson v. Adam, 1 Ves. & B. 422, 466. With reference to "natural necessity," Lord Chelmsford said: "They are, perhaps, not happily chosen, but I understand them to mean that the intention need not be expressed in language which is necessarily susceptible of only one interpretation, but that it is sufficient if it is indicated in a way that excludes the probability of an opposite intention having existed in the mind of the testator." -Hill v. Crook, L. R. 6 H. L. 265, 277. "Where it appears from the will itself, by express designation, or by necessary implication, that the intended objects of the testator's bounty are illegitimate children, they will take under the designation of children.". Gelston V. Shields, 16 Hun (N. Y.) 143, affirmed 78 N. Y. 275. To the same effect, see Heater v. Van Auken, 14 N. J. Eq. 159; Shearman v. Angel, 1 Bail. Eq. (S. C.) 351, 23 Am. Dec. 166. Conjecture is not sufficient to include illegitimates in the word "children," there must be clear evidence in the will showing such intent.-Simmons v. Crook, L. R. 6 H. L. 265; Ferguson v. Mason, 2 Sneed (34 Tenn.) 618. 26 Dover v. Alexander, 2 Hare or by a particular description which identifies it, is undoubtedly valid;27 and a bequest to an illegitimate by name is good although he may be wrongfully described as the “legitimate son of A.''28 § 844. After-Born Illegitimate Children: When May Take Under Will. Gifts to unborn or future illegitimate children are divided into two classes, to those en ventre sa mere at the time of the execution of the will, and those who may be begotten in the future. As to the former class, a gift to such without any reference to the father, is valid. It is not contrary to the policy of the law to provide for a child begotten, though unborn, although illegitimate; and a testamentary gift to the child of a woman enceinte without alluding to its father allows no uncertainty as to the intended beneficiary.29 But in order that such an 275, 282; In re Haseldine, 31 Ch. Div. 511. Extrinsic evidence is admissible to show intent only when there are no legitimate children living at the time the will is executed.--Heater v. Van Auken, 14 N. J. Eq. 159. As to other cases in which the context or the circumstances were sufficient to show an intention to include illegitimate children, see Gelston v. Shields, 16 Hun (N. Y.) 143; Hartley v. Tribber, 16 Beav. 510; Wilkinson v. Adam, 1 Ves. & B. 422; Crook v. Hill, L. R. 6 Ch. App. 311; Beachcroft v. Beachcroft, 1 Madd. 430; Holt v. Sindrey, L. R. 7 Eq. 170, (where the illegality of the marriage of the parents was unknown to the testator); and Gardner v. Heyer, 2 Paige Ch. (N. Y.) 11, (where the bequest was to the testator's "daughters," he never having been married). 27 Metham v. Devon, 1 P. Wms. 529; Rivers' Case, 1 Atk. 410; Hill v. Crook, L. R. 6 H. L. 265; Clifton v. Good bun, L. R. 6 Eq. 278; Stewart v. Stewart, 31 N. J. Eq. 398. An illegitimate child has no surname, not even that of his mother, until he has acquired one by repu-' tation or adoption.-Rex v. Clarke, Russ. & R. 358; State v. Cunningham, 111 Iowa 233, 22 N. W. 775; ; Shannon v. People, 5 Mich. 71. 28 Rivers' Case, 1 Atk. 410. 29 Holt v. Sindrey, L. R. 7 Eq. 170; Gordon v. Gordon, 1, Mer. 141; Evans v. Marsey, 8 Price 22; Dawson v. Dawson, 6 Madd. 292; Med after-born child shall take, the will must show, either expressly or by necessary implication, that such was the testator's intention.30 If the unborn illegitimate child is designated by reference to its father, the general rule is that the uncertainty of parentage precludes the child from taking.31 Such uncertainty, however, may be overcome by the facts of the case, as where a testator makes a bequest to an illegitimate child begotten by him by a designated woman and such child is born before the testator's death and acknowledged by him.32 Testamentary gifts to illegitimate children not begotten at the date of the will are generally held void as against the policy of the law.38 § 845. Effect of Marriage of Parents of Illegitimate Child. The general rule is that an illegitimate child is the heir of its mother, no matter when born; and may become the ford v. Pope, 27 Beav. 71; Pratt's Lessee v. Flamer, 5 Harr. & J. (Md.) 10. Compare: Earle v. Wilson, 17 Ves. Jun. 528. 30 In re Bolton, 31 Ch. Div. 542; Pratt v. Mathew, 22 Beav. 328. 31 Earle v. Wilson, 7 Ves. 528. See, also, Mortimer v. West, 3 Russ. 370; Dissenting opinion of Lord Selbourne in Occleston v. Fullalove, L. N. 9 Ch. 147. Compare: Evans v. Marsey, 8 Price 22, where the court held that the reference to the father was not such as to make the gift only to the unborn illegitimate child of the testator, but that the beneficiary was designated with sufficient certainty. The language used was: "Having two natural children, and the mother supposed to be now carrying a third child, I do will and bequeath," etc.; and in subsequent parts of the will the three children were referred to as "my children" and "my natural children as aforesaid." 32 Occleston v. Fullalove, L. R. 9 Ch. 147. But see dissenting opinion by Lord Selbourne. To same effect as the main opinion, see In re Hastie's Trusts, 35 Ch. Div. 728. 33 Metham v. Duke of Devon, 1 P. Wms. 529; In re Connor, 2 Jones & La T. 456, 459; Arnold v. Preston, 18 Ves. Jun. 288; Pratt v. Mathew, 22 Beav. 328; Barnett v. |