One whose parents were afterward married in a country where legitimation per subsequens matrimonium is not recognised, does not succeed to a landed estate in this country ab intestato, as a lawful child.
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William Sheddan, of the city of New York in America, entered into a regular marriage (7th November 1798) according to the law of America, with a woman who had previously borne to him two children, William and Jean. He died a few days afterward, having executed a settlement of his American property, in favour of his children, without taking any notice of the estate of Rughwood in Ayrshire, in which he had some time before succeeded to his father.
Dr. Robert Patrick was served heir in special (October 1799) to his uncle William Sheddan in the lands of Rughwood, upon this footing, that as by the laws of America the marriage had not the effect of legitimating children antecedently born, he was nearest lawful heir.
A reduction of this service was brought by a factor loco tutoris appointed to William Sheddan, who, in support of his right as a legitimate son, entitled to take landed and moveable property in Scotland by descent,
Pleaded: Marriage, when celebrated according to the solemnities of the law of the country where it is contracted, is valid and effectual all the world over; Erskine B. 3. T. 2. § 40. This rule is applicable only to the validity of the contract; for as to its legal effects, these must be determined by the law of the country where execution is demanded; and a contract may have an effect in its execution in a foreign country different from what it would have in the country where it was entered into; Kinloch against Fullerton and Company, 10th July 1739, No. 22. p. 4456; Wood, 24th June 1779, No. 77. p. 4532. Now the marriage by the laws of America, was legal, and no power could dissolve it; and all the effects, rights, and privileges, which the different countries bestow upon married persons, or on their children, must follow from it. These depend upon the particular laws of that country where effect is to be given to it; more especially when the point at issue respects the right to a real estate; for every question of this kind must be decided by the law of the country where the real estate is situate. Now, by the law of Scotland, when a man marries the mother of a child born before marriage, this legitimates the child, and confers upon him all the rights and privileges which he would have inherited if his parents had been previously married; Craig, lib. 2. dieg. 13. § 16. Ersk, B. 1. T. 6. § 52. Bank B. 1. T. 5. § 54. This rule existed in the civil law, and prevailed in every country where that law was received; Voet. lib. 25. T. 7. § 6. A contrary practice is confined, it is believed, to England alone, and its dependencies. If, then, the legal effects of the marriage are to be decided by the law of Scotland, the children are to be held legitimate, although by the law of America their situation may be different.
Answered: The status or legitimacy of the child must be decided by the law of America, where his parents were domiciled, where he was born, and where the marriage was entered into. By that law, marriage has not the effect of legitimating children antecedently born. No other jurisdiction has power to judge of the state of a citizen born within its territories, and whose parents were subject to its laws. Having once ascertained his status in life, by the law of the only country to whose jurisdiction he was subject, the status thus fixed must be received in every country which he may have occasion to visit, or in which he may afterward acquire property. The question is not concerning the status of the parents, or the effects of that status, but concerning the status of the child; and before we can determine as to the legal effects of his status, the previous question is, Whether the status of a lawful child has been constituted? The rule, then, of ascertaining this personal quality by the law of his own country, not only is consistent with the general principles of jurisprudence, but is also highly expedient; for nothing could be more absurd than for a person to be a bastard in one country, and lawful in another, merely by passing a river, or crossing a mountain, the boundary of their respective territories.
If at the time of the marriage the father had no real estate in Scotland, it is admitted that the child would have been a bastard; but if he afterward purchased an estate, or obtained an heritable bond from one of his debtors, or adjudged his estate, would these operations affect the filiation of his children, and make them legitimate in this country? If, again, a real estate in this country devolved to the father, or through him to his next heir designative, but after his death, could the child claim this upon the plea of being legitimate, when he ought to begin with proving that he is so? Macculloch against Macculloch, 10th February 1759, No. 102. p. 4591.
The question was reported to the Court by the Lord Ordinary upon informations; upon advising which, and after a hearing in presence,
The Court repelled the reasons of reduction, with one dissentient voice.
Lord Ordinary, Polkemmet.For Sheddan, H. Erskine, Fletcher.Agent, Arch. Miller, W. S.Alt. Solicitor-General Blair, Cathcart.Agent, Ed. Lothian, W. S.Clerk, Ferrier.
Fac. Coll. No. 116. p. 259.
*** This case was appealed. The House of Lords (2d March 1808) Ordered and Adjudged, that the appeal be dismissed, and that the interlocutor therein complained of be affirmed.
