The questions upon which the Superior Court is called to give its advice arise out of the provisions of paragraph eight of the will, as affected by the death, after the testator, of his daughter Ann Jane Stuart leaving a daughter born in lawful wedlock and a grandson, the illegitimate son of an illegitimate daughter of Mrs. Stuart, who died before her mother. In view of the situation thus created, the trustee under the will desires to be informed, and is entitled to be informed, as to the legal rights of parties in interest brought into active conflict by events as they have occurred. Other questions suggested by the provisions of the will, which might by possibility arise in contingencies which have not arisen and may not arise, *Page 275 although perhaps within the comprehensive language of the questions propounded, are prematurely presented for determination. Smith v. Jordan, 77 Conn. 469,470, 59 A. 507. Furthermore, adequate foundation for their determination is not laid in the facts appearing of record. We shall confine our consideration to the field of present interest indicated.
The paragraph in question provides for a disposition of a share of the testator's residuary estate "at or after" the death of each of his two daughters, whether that event should occur before or after his own death. In so far as this disposition contemplated the former contingency, the gifts over were substitutionary; in so far as they contemplated the latter, they created limitations over after a life estate. As all of the testator's four children named in the will survived him, the paragraph in question has only to be considered in the latter aspect.
The direction to the trustees which the paragraph contains, "to pay to" sundry persons specified portions of the trust estate after the death of a daughter, imports a gift. White v. Smith, 87 Conn. 663, 667,89 A. 272; Allen v. Almy, 87 Conn. 517, 523, 89 A. 205.
An attempted gift to "descendants" of children of the testator's daughters living at his death would be void as being contrary to the statute against perpetuities.Tingier v. Chamberlin, 71 Conn. 466, 469,42 A. 718. The provision by which it is directed that the lineal descendants of any deceased child should take "the part of such share as their parent would have taken if alive," and the words, a line or two later, "and descendants," whereby such descendants are linked with children as donees in remainder, amount to precisely that, and must therefore remain without operative effect. The elimination of this provision does not result in such a destruction of the testator's testamentary *Page 276 scheme and purpose that its associated provisions may not stand. The legal can be readily separated from the illegal without doing injustice or defeating the testator's main purpose, and his intent be thus effectuated in so far as the law will permit. White v. Allen,76 Conn. 185, 190, 56 A. 519. Neither does the failure of the gift over to "descendants" invalidate any of the gifts prior in the order of donation. Farnam v. Farnam, 83 Conn. 369, 385, 77 A. 70; Cody v. Staples,80 Conn. 82, 85, 67 A. 1; Johnson v. Webber,65 Conn. 501, 514, 33 A. 506.
The eighth paragraph as it presents itself for our further consideration, disregarding the unimportant trust provision in the case of minors, thus becomes one in which the testator gave over to the children of each of his two daughters respectively, after life estates to the latter, the one-quarter share of the trust estate of which such daughter was entitled to receive the income during her life discharged of the trust; the children of each daughter to share and share alike between them, and the property so bestowed to be to the recipients and their heirs. The gifts to the daughters were life estates; the limitations over to their children, remainders which, upon the decease of the testator, vested in point of right in the child or children of each group who were then alive as a class, such class opening to admit after-born children who, upon their birth, would take a vested interest. Norton v. Mortensen, 88 Conn. 28,89 A. 882; Bartram v. Powell, 88 Conn. 86,89 A. 885.
The estates which thus vested are expressly made estates of inheritance. Are they, however, indefensible, or are they such as would be defeated by the happening of a condition subsequent? If so, the remainder is none the less a vested one. Gray on Perpetuities (2d Ed.) § 108. *Page 277
The ninth paragraph of the will provides for the defeat of any interest already vested in children of a child of the testator in the contingency that all of the children of such child of the testator should die before their parent. Doubtless also the provisions of the eighth paragraph in favor of descendants of children, if they had been valid, would have subjected to defeat any interest which had already become vested in point of right in any child of the testator's daughters in the event of its death before the period of distribution arrived.Johnson v. Webber, 65 Conn. 501, 514,33 A. 506; Mitchell v. Mitchell, 73 Conn. 303, 308, 47 A. 325. That provision, however, being void, we fail to discover any sufficient reason for holding the vested interest in a child of a daughter of the testator a defeasible one, save under the conditions described in the ninth paragraph. Defeasance conditions are not favored. Scovill v. McMahon, 62 Conn. 378, 388,26 A. 479. Neither is an express and positive gift in fee to be cut down by subsequent provisions less express and positive. Fanning v. Main, 77 Conn. 94, 99,58 A. 472.
We are thus brought, by the illegitimacy of Nora Estelle Eaton, to the question whether or not she, as an illegitimate child of Ann Jane Stuart, is to be regarded as the latter's child under the provisions of the will, and as such entitled to be admitted into membership of the class of Ann Jane Stuart's children.
At English common law an illegitimate was the child of nobody. This proposition was tenaciously adhered to, and its logical corollaries adopted into the law. Among these corollaries was one that the word "child" or "children," when used in a statute, will, or deed, was to be interpreted as including legitimate children only. Another corollary was, that out of the relation of an illegitimate to his mother or putative *Page 278 father, there could arise no right, duty, or obligation. "A bastard was the child of nobody; he was not entitled even to a name. It is however gravely asserted by the text writers that he might gain one by reputation. He did not take his mother's place of settlement, but was settled wherever he chanced to be born. As he was related to nobody he could have no heirs, except of his own body; and so if he left no descendants, his property escheated, and now, by law, escheats to the crown." Dickinson's Appeal, 42 Conn. 491, 500. He could not inherit even from his mother. This harsh and inhumane doctrine of the English common law was taken over into the common law of practically all American jurisdictions. Its rigors, however, are such that an appeal has very generally been made to statutes to mitigate some of them. These statutes, being in derogation of the common law, have been strictly construed, so that no greater relaxation of the strict common-law rules has been permitted than the statutes plainly authorized. Dickinson's Appeal, 42 Conn. 491,509.
In most, if not all, of the jurisdictions adopting the common-law rules, statutes have been enacted entitling illegitimates to inherit from the mother. This right of inheritance, however, is founded entirely upon the statute, and does not arise from a recognition of the relation of parent and child between the mother and her offspring. The statutes have not changed or undertaken to change the general attitude of the law upon the subject of the relations of the parties.
This State is unique in that neither the fundamental principle of the common law, that an illegitimate was the child of nobody, nor any of its natural corollaries, has ever been engrafted upon our common law. From the earliest times the proposition that a bastard is the child of nobody has been repudiated, and our law has *Page 279 proceeded upon the directly opposite principle, which recognized an illegitimate as the child of his mother. Our numerous cases touching the various aspects of the question have consistently held to the doctrine stated and its logical consequences, with the result that a full recognition has been given to the general rule, distinctly contrary to that prevailing elsewhere, that the relation of mother and child, whether legitimate or illegitimate, is one from which those rights, obligations, and status arise which ordinarily grow out of the relation of parent and child.
A review of our decisions touching the question of both settlement and inheritance, as given in Dickinson'sAppeal, 42 Conn. 491, need not be here repeated. The strong and emphatic language which our court has repeatedly used upon the subject of a bastard's status is, however, worthy of notice.
"The common law of England, which has been urged in this case, is not to be mentioned as an authority in opposition to the positive law of our own State; and nothing can be more unjust, than that the innocent offspring should be punished for the crimes of their parents, by being deprived of their right of inheritance by the mother, when there both not exist amongst men a relation so near and certain as that of mother and child." Brown v. Dye, 2 Root, 280, 281.
"By the common law, a bastard is nullius filius, and derives nothing from his parents; for he has no parents; and is settled where born. . . . But it has been discovered in this State, that a bastard is the child of his mother, and capable of inheriting an estate, and deriving a settlement from her." Woodstock v. Hooker, 6 "child" or "children," when used in a statute, will, or deed, was to be interpreted as including legitimate children only. Another corollary was, that out of the relation of an illegitimate to his mother or putative *Page 280 filius nullius, is entirely rejected here; and such a child is here recognized by law as a child of its mother, with all the rights and duties of a child." New Haven v.Newton, 12 Conn. 165, 170.
It is by reason of our recognition of the relation of parent and child between a mother and her illegitimate offspring, that no statute has been needed in this State to accomplish results which humanity and natural justice dictated, and which could be arrived at elsewhere only through statutory intervention. Our recognition of the relation of child to mother has rendered legislation unnecessary, for instance, to entitle an illegitimate to inherit from his mother, his mother from him, brothers and sisters from each other, although one or both were illegitimate offspring, and collateral inheritance to proceed through illegitimate lines.
The case of Heath v. White, 5 Conn. 228, is particularly instructive in this connection, especially for the reason assigned in it for sustaining the right of inheritance. The question presented was as to the right of an illegitimate to share in the distribution of his mother's real estate. The right of the illegitimate rested solely upon the statute governing the descent of intestate estate and that provision of it which made the property descend to and among "the children and such as legally represent them" of the deceased owner. The question, therefore, was whether the illegitimate was to be regarded as a child of its mother. In commenting upon the common-law situation, CHIEF JUSTICE HOSMER said that it was not the meaning of the word "child" or "children" that, at English common law, prevented a bastard from inheriting his mother's estate, but that persons of that description were not by that law permitted to succeed to their parent. He further said that undoubtedly in England and in those *Page 281 States which have adopted the English rule, the term "child," in reference to succession by inheritance, must be understood to mean a legitimate child; but added that "the subject matter abridged the customary meaning of the word." He then went on to say that the position to be established by the defendant was therefore not relative to the proper meaning of the word "children," "for as to this there exists no possible controversy," but whether the English law relative to succession by illegitimate is to be recognized as the law of this State, and the term "child" and "children" thereby limited in its application to legitimates. The conclusion reached, after a repudiation of the common law rule, was in favor of adopting the plain meaning of the words of the statute, and giving to them their ordinary significant, comprehending the illegitimate as well as the legitimate offspring of mothers.
The same subject had an even fuller consideration in the later case of Dickinson's Appeal, 42 Conn. 491, where the question was whether the legitimate children of an illegitimate daughter of a sister of the testatrix, who died leaving no nearer blood relative than a cousin, were parties in interest as heirs at law of the testatrix. The general subject of the status of illegitimates was there given exhaustive consideration, the peculiar attitude of our law affirmed and emphasized, and a conclusion in favor of the appellants reached.
The significant feature of our cases is that the right of an illegitimate to inherit, his status in the matter of settlement, and the obligations which are recognized as upon him as respects his mother, are derived solely from a recognition of the existence of the relation of parent and child between the mother and her offspring, "agreeable," as our first reported case says, "to the law of nature and reason." Canaan v. Salisbury, 1 Root, 155, 156. *Page 282
The word "children" in our statute of distributions is interpreted to embrace a mother's illegitimate as well as legitimate children, for the simple reason that the law regards the former as well as the latter as her children. In a word, the natural corollary of the English rule that the word "child" or "children," when used in a statute, is to be restrained to signify legitimates only, is done away with, as it logically must be. That corollary is the logical consequence of the proposition that the illegitimate is the child of nobody. When that proposition is transposed into ours, that an illegitimate is the child of its mother, then all logical foundation for the corollary that the word "child" or "children" in statute, will, or deed, is to be interpreted as limited to legitimates, disappears, and the logical corollary becomes the reverse, so that presumptively the word "child" or "children" in a will embraces offspring legitimate and illegitimate. That is the principle to be applied in the present case, so that when the testator made his limitation over to the children of his daughters, he will be held to have included all their children, unless a different intent is to be gathered from the will, read in the light of the surrounding circumstances.
We are unable to discover in this will, so read, any intent upon the part of the testator to thus restrict the natural meaning of the words he employed. On the contrary, he, at the time his will was executed, presumably had full knowledge of the existence of the illegitimate child, then seven years of age, of his daughter and of its illegitimacy. His daughter, at that time, had no other offspring. The provisions of his will were therefore presumably made in contemplation of this situation. Had he not intended that the illegitimate child should share in the fruits of his bounty as a child of his daughter, it is scarcely conceivable that he would have been satisfied to use the unrestricted language that *Page 283 he did, and language which, in ordinary speech, knows no distinction between legitimates and illegitimates.
The Superior Court is advised that no part of the trust estate in the plaintiff's hands heretofore held by him for the benefit of Ann Jane Stuart during her life is intestate estate of the testator; that Louis Eaton Sterry is not entitled to receive from the plaintiff any part of said trust estate so held; and that Gertrude Stuart Benson and John F. Addis, as administrator of the estate of Nora Estelle Eaton, deceased, are entitled to receive the whole amount of the trust estate so held in equal shares between them.
No costs in this court will be taxed in favor of any of the parties.
In this opinion THAYER, RORABACK and BEACH, Js., concurred.