thus relieving the mother to some extent of the burden to which his criminal misconduct has chiefly contributed, and indemnifying the public against the support of the penniless and unfortunate.1

Past seduction has been held sufficient to support a deed. There is an old English case, where equity compelled the specific performance of a deed-poll, made by a man who had seduced a woman and had a child by her; the writing promising to pay £2,000 after his death for the purchase of an annuity for the mother and her child for their lives. Both the man and the child had died before the suit was brought.2 In Pennsylvania, the same principle is pushed even farther; for it is ruled that ṣeduction of a female and begetting a bastard is sufficient consideration to support a man's promise to give bonds for a sum of money. But there must be nothing appressive or unfair in such transactions, and if the promise be solely in consideration of stopping a criminal prosecution, it is void. Nor ought agreements as to the wages of sin to be favored.5

Whatever may be the mother's legal responsibility for the maintenance of her bastard child while she lives, it appears that an action cannot be maintained against the administrator of her estate for the child's maintenance subsequently to her death."

A person standing in loco parentis may sue per quod servitium for the abduction of his daughter's illegitimate child. But a parent is not bound to support the illegitimate offspring of

1 2 Kent Com. 215, and cases cited; State v. Beatty, 66 N. C. 648; Musser v. Stewart, 21 Ohio St. 353; Marlett v. Wilson, 30 Ind. 240; Barber v. State, 24 Md. 883; Wheelwright v. Greer, 10 Allen, 889. In some States certain persons are authorized to make complaint against the father for maintenance of the bastard, where the mother refuses or neglects to do so. Ib.

2 Marchioness of Annandale v. Harris, 2 P. Wms. 488. And see Turner v. Vaughan, 2 Wils. 339.

3 Shenk v. Mingle, 13 S. & R. 29. And see Phillipi v. Commonwealth, 18 Penn. St. 116; Knye v. Moore, 1 Sim. & Stu. 161.

4 Ib. But see Merritt v. Fleming, 42 Ala. 234.

See Binnington v. Wallis, 4 B. & Ald. 650.

6 Ruttinger v. Temple, 4 B. & S. 491. And see supra, pp. 388, 384.

7 Moritz v. Garnhart, 7 Watts, 802.

his children.1 Relatives more distant than parents do not, on the whole, seem to have much consideration in matters of this sort; and it is even possible that the assumption of a family name by an illegitimate member is a grievance for which the offended relatives have no redress.2

*

Bequests to illegitimate children, since they are not considered as relatives, are not favored in English law. There have been, it is true, certain dieta to the contrary; but *387 Lord Eldon was of the opinion that there must be something to show that the testator put himself in loco parentis; and it has since been decided that an illegitimate child is not merely, as such, within the rule, for he is "a stranger to the testator." On the ground of uncertainty in the person, a bequest to an unborn legitimate child was long considered objectionable; but Lord Eldon and others maintained that legacies given to the unborn illegitimate child of a particular woman then pregnant would be good, because the uncertainty of description could here be obviated. But it is now well settled in England that a devise or bequest in favor of other future illegitimate children is void.5

Illegitimate children may undoubtedly take by purchase as persons designated, if sufficiently described. The question in cases of this sort is really one of intention. Prima facie, the term "children" in a will, however, is intended to mean legitimate children; and if there are legitimate children, or if it be possible that there should be legitimate children of the person named, the English rule is that no illegitimate child

1 Hillsborough v. Deering, 4 N. H. 86.

2 Du Boulay v. Du Boulay, L. R. 2 P. C. 430. See Vane v. Vane, L. R. 8 Ch. 383.

3 Lowndes v. Lowndes, 15 Ves. 304; Perry v. Whitehead, 6 Ves. 547 ; contra, per Lord Alvanley, Cricket v. Dolby, 3 Ves. 30; Macphers. Inf. 238.

4 Macphers. Inf. 570, and cases cited; Gordon v. Gordon, 1 Mer. 141; Dawson v. Dawson, 6 Madd. 292.

5 Beachcroft v. Beachcroft, 1 Madd. 430; Knye v. Moore, 1 Sim. & Stu. 61; Wilkinson v. Wilkinson, 1 You. & Coll. 657; Medworth v. Pope, 27 Beav. 71.

6 Blodwell v. Edwards, Cro. Eliz. 509; Co. Litt. 36; Peachey Mar. Settl. 885, n.; Clifton v. Goodbun, L. R. 6 Eq. 278; Crook v. Hill, L. R. 6 Ch. 311.

66

can take under the description of children. Yet, if they have acquired the reputation of being the children of a particular person, they are capable of taking under the description of " children," or " daughters."2 In Medworth v. Pope, the rule was concisely stated to be, that an illegitimate child in esse or en ventre sa mere may, if properly described, take the benefit of a devise or bequest, and

*

the court will not inquire as to his parentage or ori- *388 gin; but that in respect of future illegitimate children, the law will not let them take under any description whatever. The reason why the English law so holds is, that it considers such a provision for future illegitimate children as contra bonos mores.'

"3

In this country, the tendency seems to be so far favorable to illegitimate children as to regard wills made in their favor with the same, or nearly the same, consideration as all others. And our courts regard bastards as having strong claims to equitable protection, notwithstanding the criminal indulgence of their parents. In several important cases, specific performance of voluntary settlements made by the father in their favor, have been decreed. And a devise, in specific terms, to an unborn natural child of a woman then pregnant, is sustained here as in England. But whether our tribunals

1 Gill v. Shelley, 2 Russ. & My. 336; In re Wells's Estate, L. R. 6 Eq. 599; Paul v. Children, L. R. 12 Eq. 16.

2 Peachey Mar. Settl. 885, n., and cases cited; Evans v. Davies, 7 Hare, 501; Owen v. Bryant, 2 De G., M. & G. 697; Hartley v. Tribber, 16 Beav. 510; Leigh v. Byron, 1 Sm. & Gif. 486; Tugwell v. Scott, 24 Beav. 141; Worts v. Cubitt, 19 Beav. 421. And see Williamson v. Codrington, 1 Ves. Sen. 511.

8 Per M. R., in Medworth v. Pope, 27 Beav. 71. Further important illustrations of the equity doctrine may be seen in the recent cases of Lambe v. Eames, L. R. 6 Ch. 597; Holt v. Sindrey, L. R. 7 Eq. 170; Savage v. Robertson, L. R. 7 Eq. 176. And as to the application of 27 Eliz. c. 4, to marriage settlements for bastards, see Clarke v. Wright, 6 Hurl. & Nor. 849. As to legacies and devises, see Beachcroft v. Beachcroft, 1 Madd. 430, and cases cited; Durrant v. Friend, 11 E. L. & Eq. 2; Owen v. Bryant, 13 E. L. & Eq. 217; 4 Kent Com. 414; Bagley v. Mollard, 1 Russ. & My. 581.

4 Gardner v. Heyer, 2 Paige, 11; Bunn v. Winthrop, 1 Johns. Ch. 338; Harten v. Gibson, 4 Desaus. 139; 2 Kent Com. 216; Shearman v. Angel, Bail. Eq. 351; Collins v. Hoxie, 9 Paige, 88.

5 Knye v. Moore, 5 Harr. & Johns. 10. As to legacies and devises to illegitimate children under American laws, see 4 Kent Com. 413, 414, and cases cited; Hughes v. Knowlton, 37 Conn. 429.

would sanction a bequest to other unborn illegitimate children, may admit of doubt; provided such child were never legitimated by subsequent marriage. For, after all, there must be some discrimination made against criminal inter

course.

Testamentary guardianship, of which we are to speak in another connection, is of such a nature that a father cannot by his will appoint a guardian for his illegitimate children.1

Sleeman v. Wilson, L. R. 13 Eq. 36.

[418]

*PART IV.

GUARDIAN AND WARD.

* 389

CHAPTER I.

OF GUARDIANS IN GENERAL; THE SEVERAL KINDS.

THE guardian is a person intrusted by law with the interests of another, whose youth, inexperience, mental weakness, and feebleness of will disqualify him from acting for himself in the ordinary affairs of life, and who is hence known as the ward.

Guardianship usually applies to minor children; and in this sense the guardian may be either their natural protector, whose authority is founded upon universal law, or some person duly chosen to act on their behalf. Thus, the father (and sometimes the mother) exercises the right of custody and nurture as the child's natural guardian; while, if the parents are dead, some one must be selected to supply their place. And since the parental control does not extend to the estate of a minor, the appointment of a guardian may be both necessary and proper, when property becomes vested in a child under age. Guardianship applies also at the present day to idiots, lunatics, spendthrifts, and the like; and the guardian of such person derives his authority from statute law and a special appointment. This guardian is sometimes designated. as the committee.

The law of guardianship is most naturally divided into guardianship of the person, and guardianship of the estate. *Guardianship of the person is a relation * 390 essentially the same as that of parent and child,