Legitimation

The act of giving the character of legitimate children to those who were not so born. Legitimation is a fiction of the law, whereby one born out of lawful wedlock is considered the offspring of the marriage between the parents.

Succession of Caballero V. Executor, 24 La. Ann. 680.

The legitimation of natural children was permitted in none of the earlier German codes, except the Lombard, and was strongly opposed to the whole spirit of German family law, but that the father could, by symbolic forms, acknowledge bis natural born In unlawful xnarrlage had no rights of inheritance,^ and it may be inferred that all other rights of kindred were denied to it except that of protection, even when acknowledged by the father. Essays, Ang.-Sax.

L. 126.

In the conflict between the church and the law at the Merton parliament in regard to the question whether a bastard could be legitimatized, the barons declared with one voice that they would not change the laws of England, and that nothing could make a bastard legitimate, although it was contended that the old English custom authorized legitimation by allowing the parents on the occasion of their marriage to place such children beneath the cloak under which they stood whilst the marriage ceremony was performed, the children thereby becoming “mantle children,*' but this practice the king's court of Henry II. had rejected and that of Henry III. refused to retreat from the precedent.

2 Poll. & Haiti. 395.

See Mantle Children. In Maine, Pennsylvania, Illinois, Michigan, Iowa, Minnesota, California, Oregon, Nevada, Washington, the Dakotas, Idaho, Montana, and New Mexico, subsequent marriage of the parents legitimatizes their illegitimate child. In Massachusetts, Vermont, Illinois, Indiana, Wisconsin, Nebraska, Maryland, Virginia, West Virginia, Kentucky, Missouri, Arkansas, Texas, Colorado, Idaho, Wyoming, Georgia, Alabama, Mississippi, and Arizona, in addition to the marriage of the parents the father must have acknowledged or recognized the child as his. In New Hampshire, Connecticut, and Louisiana, both parents must acknowledge, but in the last named state the acknowledgment is made either by an authentic act before marriage or by the contract of marriage, and an exception is made of those children born of an Incestuous or adulterous connection. In California, Nevada, the Dakotas, and Idaho, a public acknowledgment by the father of an Illegitimate child, receiving such child (with the consent of his wife, if married) into his family, and otherwise treating it as if It were legitimate, thereby renders it legitimate for all purposes. Acknowledgment by either or both parents, or by the father with the consent of his wife, or by the mother with the consent of her husband, will legitimatize a child. In Michigan, If the father, by writing executed, acknowledged, and recorded like deeds of real estate, but with the judge of probate, acknowledged such child, he is legitimate for all purposes. In North Carolina, Tennessee, Georgia, and New Mexico the putative father of a bastard has a process ih court by which he may legitimatize the child. That illegitimate children were the result of adulterous intercourse does not prevent their acknowledgment by the father, as provided by statute, from effecting their legitimation, unless the statute provides otherwise; Miller v. Pennington, 218 111. 220, 75 N. E. 919, 1 L. R. A. (N. S.) 773; Hawbecker V. Hawbecker, 43 Md. 51G; Ives v. Mc Nicoll, expressly excepts such offspring from legitimation; Succession of Fletcher, 11 La. Ann. 69; and in Kentucky it Is held that such children may not be legitimatized; Sams v. Sams’ Adm’r, 85 Ky. 396, 3 S. W. 593. Even though the mother objects, a father is entitled to the child’s custody for the purpose of legitimation; Allison v. Bryan, 21 Okl. 557, 07 Pac. 282, 18'L.

R. A. (N. S.) 931, 17 Ann. Cas. 468.

A question considerably discussed in England is where one who is domiciled in a country sustaining the doctrine legitim-atio per suhsequens matrlmonium marries a woman who had before the marriage a child by him, the husband having been domiciled prior thereto in a country where the doctrine does not prevail. In one case the exact ques-,tion arose where the husband domiciled in England went to France, and before changing his domicile cohabited with a French woman who had by him, a daughter, and afterwards becoming domiciled in France, he married the woman at the British Embassy in English form, and later in French form with recognition of the child, but the latter was held not to be legitimate; 2 K. & J. 595. This case is the subject of severe criticism in an article in 22 Law Mag. & Rev. 171, where the English cases touching upon the subject are reviewed, with th^ conclu.sion that “It is not rash to say that before the case last mentioned such authority as existed on the point was in favor of the legitimacy.”

See 7 Cl. & F. 817, 842; 11 Eq. 474; 17 Ch. Div. 2(56; 24 Ch. Div. 637; [1892J 3 Ch. 88; L. R. 1 H. L. Sc. 441.

See Bastard.