Mr. Justice Washington
delivered the opinion of the Court. It is admitted by the counsel on both sides, in their argument, with which the opinion of the Court coincides, that Hugh Stephenson, though the meritorious cause of the grant of this land, never took any interest therein, but that the right to the same vested in his son Richard, to whom the warrants issued, as the first purchaser. It is further admitted by the counsel, that the law of descents of Ohio, at the time when Richard Stephenson -died, was not more favourable to the claim of the appellants than that of [256]*256Virginia, which will be hereafter noticed; and' they have', in the argument, rested the cause upon the. construction of the latter law. The opinion of the Court, therefore, is.founded on this-law. . .
The appcientitled to the lands of H. S. as deviseesunder his will, or ^beingnamed tteehir3
The appellants object to the decree of the -Court below, upon.the following grounds: 1, That the land: warrants ought to have béea granted to them as the. representatives, of Hugh Stephenson, designated as such by his last will.
2. That by the marriage of their mother with Hugh Stephenson, and his recognition of them as his children, they were legitimated, and entitled to the inheritance in this land as heirs to Richard Stephenson ; if not so, then,
3. That, as bastards, they were capable of inheriting from Richard, who, they contend, was their brother, on the part of the mother.
1, The appellants’ counsel do not contend, that their clients are entitled to this land, as devisees tin* * Tt i a i . i . der the will or Hugh Stephenson ; such a claim o i 7 would be clearly inadmissible, inasmuch as the testator was not only not seised of the land at the time his will was made, but the law which authorized the grant of it, was not even then in existence. But they are understood by the Court, to insist, that the will sp.far operates upon the subject, as to name them the representatives of the testator, and to render xhem. capable, as such, of taking under the act of assembly, which passed after the death of the testator. The act provides, that where any officer, soldier, or sailor, shall have fallen, or died in the service, his heirs or legal representatives shall be entitled to, [257]*257and. receive the same quantity of land as would have been due to such officer, &c. had he been living.”
The appellants not legitimated by the marriage of H. S. with their mother, and his* recognition of them as his elfiP* dren.
This claim, is altogether fanciful and. unfounded.: for, in the first place, the appellants were not appointed by the will to be ■ the general representatives of the testator, but the' devisees, together with their mother, of all the testator’s property; and, 2dly, if they had been so appointed, still it could not confer upon them such a. description as to entitle them to take under the act of assembly, unless the act itself described them as the legal representatives of Hugh Stephenson, for whose benefit the grant was intended ; and then, they would • have taken exclusively under the act, by force, of such legislative description, and not under, or in virtue of the description in the will. It is not likely that, the expression, “ legal representatives,” in the act, was meant to apply to devisees of deceased officers and soldiers for whom the bounty was intended, if they had lived, because, at the time this law was passed, there could not be a devisor of those lands under the general law. It is more probable that they Were intended to provide for the case of a person who may have purchased the right of the officer or soldier to such bounty as the legislature might grant to him.
The next question is, whether the appellants were legitimated by the marriage of Hugh Stephenson with their mother, and Iris recognition of them as his children. This question arises under the 19th section of the-act of 1785^ directing the course of descents, which took effect on the 1st of January, 1787. This section declares, that “ where a man, [258]*258having by a woman one or more children, shall afterwards intermarry with such woman, such child or children, if recognized by him, shall be thereby legitimated.”
There can be no doubt but that the section applied to bastards in esse, at the time the law came into operation, as well as to such as might thereafter be bqrn. But it is contended by the counsel for the appellants, that the section is, in every other respect, prospective, not only as to the fact of legitimation, but as to the two circumstances of marriage and recognition, which entitle the bastard to the benefits of the law; and, consequently, that to bring a case within the operation of this section, both the marriage and recognition must take place after the J st of January, 1787. On-the other side, it is admitted, that the privilege of legitimation is not conferred upon a bastard prior to the above period; but it is insisted, that, as to the marriage and recognition, the law should be construed as well retrospectively as prospectively.
In the case of Rice v. Éfford, decided in the Court of Appeals of Virginia,
It is contended by the,counsel for the appellants, that since, in the above case, the father recognized the children subsequent'to the 1st of January, 1787, this opinion of Judge Roane as to the time of the recognition, was unnecessarily advanced, and is, therefore, entitled to no higher respect than what is due to a mere obiter dictum. Be this as it may, it is the uncontradicted opinion of a learned Judge upon the construction of a law of his own State; and is noticed by this Court, not upon the ground of its being considered in that State as of conclusive authority, but because it strongly fortifies the opinion which this Court entertains upon the point decided; which is, that, however the construction may he as to the inception of the right, it is clearly prospective as it relates to the consummation of it. And this prospective operation being given to the act, by requiring the most important condition upon which the privilege of legitimation is to be conferred, to be performed after the law came into operation, it is less material whether the marriage was celebrated before, or after that period. To render the past recognition of the father effectual to give inheritable Blood to his children, who were then illegitimate, and incapable of taking the estate by descent, either from him, or from those to whom it should descend, would in sbipe respects at least, partake of the cha[260]*260racter of a retrospective law. It would seem to be most reasonable so to construe the law, as to enable the father to perceive all the consequences of his recognition at the time he made it.
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Mr. Justice Washington
delivered the opinion of the Court. It is admitted by the counsel on both sides, in their argument, with which the opinion of the Court coincides, that Hugh Stephenson, though the meritorious cause of the grant of this land, never took any interest therein, but that the right to the same vested in his son Richard, to whom the warrants issued, as the first purchaser. It is further admitted by the counsel, that the law of descents of Ohio, at the time when Richard Stephenson -died, was not more favourable to the claim of the appellants than that of [256]*256Virginia, which will be hereafter noticed; and' they have', in the argument, rested the cause upon the. construction of the latter law. The opinion of the Court, therefore, is.founded on this-law. . .
The appcientitled to the lands of H. S. as deviseesunder his will, or ^beingnamed tteehir3
The appellants object to the decree of the -Court below, upon.the following grounds: 1, That the land: warrants ought to have béea granted to them as the. representatives, of Hugh Stephenson, designated as such by his last will.
2. That by the marriage of their mother with Hugh Stephenson, and his recognition of them as his children, they were legitimated, and entitled to the inheritance in this land as heirs to Richard Stephenson ; if not so, then,
3. That, as bastards, they were capable of inheriting from Richard, who, they contend, was their brother, on the part of the mother.
1, The appellants’ counsel do not contend, that their clients are entitled to this land, as devisees tin* * Tt i a i . i . der the will or Hugh Stephenson ; such a claim o i 7 would be clearly inadmissible, inasmuch as the testator was not only not seised of the land at the time his will was made, but the law which authorized the grant of it, was not even then in existence. But they are understood by the Court, to insist, that the will sp.far operates upon the subject, as to name them the representatives of the testator, and to render xhem. capable, as such, of taking under the act of assembly, which passed after the death of the testator. The act provides, that where any officer, soldier, or sailor, shall have fallen, or died in the service, his heirs or legal representatives shall be entitled to, [257]*257and. receive the same quantity of land as would have been due to such officer, &c. had he been living.”
The appellants not legitimated by the marriage of H. S. with their mother, and his* recognition of them as his elfiP* dren.
This claim, is altogether fanciful and. unfounded.: for, in the first place, the appellants were not appointed by the will to be ■ the general representatives of the testator, but the' devisees, together with their mother, of all the testator’s property; and, 2dly, if they had been so appointed, still it could not confer upon them such a. description as to entitle them to take under the act of assembly, unless the act itself described them as the legal representatives of Hugh Stephenson, for whose benefit the grant was intended ; and then, they would • have taken exclusively under the act, by force, of such legislative description, and not under, or in virtue of the description in the will. It is not likely that, the expression, “ legal representatives,” in the act, was meant to apply to devisees of deceased officers and soldiers for whom the bounty was intended, if they had lived, because, at the time this law was passed, there could not be a devisor of those lands under the general law. It is more probable that they Were intended to provide for the case of a person who may have purchased the right of the officer or soldier to such bounty as the legislature might grant to him.
The next question is, whether the appellants were legitimated by the marriage of Hugh Stephenson with their mother, and Iris recognition of them as his children. This question arises under the 19th section of the-act of 1785^ directing the course of descents, which took effect on the 1st of January, 1787. This section declares, that “ where a man, [258]*258having by a woman one or more children, shall afterwards intermarry with such woman, such child or children, if recognized by him, shall be thereby legitimated.”
There can be no doubt but that the section applied to bastards in esse, at the time the law came into operation, as well as to such as might thereafter be bqrn. But it is contended by the counsel for the appellants, that the section is, in every other respect, prospective, not only as to the fact of legitimation, but as to the two circumstances of marriage and recognition, which entitle the bastard to the benefits of the law; and, consequently, that to bring a case within the operation of this section, both the marriage and recognition must take place after the J st of January, 1787. On-the other side, it is admitted, that the privilege of legitimation is not conferred upon a bastard prior to the above period; but it is insisted, that, as to the marriage and recognition, the law should be construed as well retrospectively as prospectively.
In the case of Rice v. Éfford, decided in the Court of Appeals of Virginia,
It is contended by the,counsel for the appellants, that since, in the above case, the father recognized the children subsequent'to the 1st of January, 1787, this opinion of Judge Roane as to the time of the recognition, was unnecessarily advanced, and is, therefore, entitled to no higher respect than what is due to a mere obiter dictum. Be this as it may, it is the uncontradicted opinion of a learned Judge upon the construction of a law of his own State; and is noticed by this Court, not upon the ground of its being considered in that State as of conclusive authority, but because it strongly fortifies the opinion which this Court entertains upon the point decided; which is, that, however the construction may he as to the inception of the right, it is clearly prospective as it relates to the consummation of it. And this prospective operation being given to the act, by requiring the most important condition upon which the privilege of legitimation is to be conferred, to be performed after the law came into operation, it is less material whether the marriage was celebrated before, or after that period. To render the past recognition of the father effectual to give inheritable Blood to his children, who were then illegitimate, and incapable of taking the estate by descent, either from him, or from those to whom it should descend, would in sbipe respects at least, partake of the cha[260]*260racter of a retrospective law. It would seem to be most reasonable so to construe the law, as to enable the father to perceive all the consequences of his recognition at the time he made it.
The appeilants mcapa- “<• ¡nhfStevenson!"R'
The 3d question is, are the appellants, as bastards, ■* J L L '• capable of inheriting from Richard Stevenson ?
The 18th section of the law of descents, under which this question arises, is as follows: “ In making title by descent, it shall be no bar to a party that any ancestor through whom he derives his descent from the intestate, is, or hath been, an alien. Bastards also shall be capable of inheriting or of transmitting’inheritance on the part of their mother, in like manner as if they had been lawfully begotten of such mother.”
In flie construction of this section, it is never to be lost isight of, that'thc appellants are to be considered, as bastards, liable'to all the disabilities to which the common ■ law subjects them, as such, except those froth which the section itself exempts them.' Though illegitimate, they may inherit and transmit'inheritance, on the part of the mother, in like manner as if they had been lawfully begotten of the mother. What is the legal exposition of these expressions ? Wé understand it to be, that they shall have a capacity to take- real property by descent immediately or through their mother iii the ascending line ; and transmit the same to their line as descendants, in like manner as if they were legitimate. This is uniformly the meaning of the expressions, “ on the part of the mother or father,” when used- in reference to the course of dcscentof real property, in the paternal or maternal [261]*261line. As bastards, they were incapable of inheriting the estate of their mother notwithstanding they were the innocent offspring of her incontinence, and were, therefore, in the view of the legislature, and consonant to the feelings of nature, justly entitled to be provided for out of such property as she might leave undisposed of at her death, or which would have vested in her, as. heir to any of her ancestors, had she lived to take as such. The current of inheritable blood was stopt in its passage from, arid through the mother, so as to prevent the descent of the mother’s property and of the property of her ancestors, either to her own illegitimate children, or to their legitimate offspring. The object of the legislature would seem to have been, to remove this impediment to.the transmission of inheritable blood from the bastard in the descending line, and to give him a capacity to inherit in the ascending line, and through his mother. But although her bastard children are, in these respects, quasi legitimate, they are, neverthe - less, in all others bastards, and as such, they have, and can have neither father, brothers, or sisters. They cannot, therefore, inherit from Richard Stephenson, because, in contemplation of law, he is not their brother : and even if he weré their brother, they would not inherit their estate under this section, on the pari of their mother, but directly from Richard, the descent from brother to brother being immediate. Upon no principle, therefore, can this section help the appellant’s case. His estate never vested in the mother. so as for her bastard children to inherit from [262]*262her; nor did it pass through her in the course of de~ scen<; to the bastard children.
Decree affirmed, with costs.
3 Henn, & Munf. 225.