[EQUITY]

HOWARTH (OTHERWISE MILLS) v. MILLS.

Will - Gift by a Mother to Children "legitimate or otherwise" - Illegitimate Children born after the Date of the Will excluded.

Bequest by a single woman who had gone through the ceremony of marriage with her deceased sister's husband, in favour of her children "legitimate or otherwise." At the date of the will she had one child living, and several were born afterwards:-

Held, that the after-born children were excluded; and that the gift enured to the benefit only of the child living at the date of the will.

SARAH MILLS, spinster, on the 8th of July, 1851, went through the form of marriage with Edward Howarth, the widower of her deceased sister.

By her will, dated the 13th of February, 1855, Sarah Mills gave and devised to trustees all her household estates, lands and tenements, goods, chattels, and all other her personal estate, upon trust to sell, collect, and get in the same, and as to the moneys to arise by such sale, to pay to Edward Howarth £100, and as to the residue as follows:- "for my said trustees or trustee to pay and apply the same, in such proportions as my said trustees or trustee may

think fit, in and towards the maintenance, education, and advancement in life, of each and every of my children, legitimate or otherwise, which shall be living at the time of my decease, until each of such children, legitimate or otherwise, shall respectively attain the age of twenty-one years. And I hereby further direct that as soon as either of my said children, legitimate or otherwise, shall attain the age of twenty-one years, and as often as the same shall occur, my said trustees or trustee shall pay unto such child its proportionate share of the said trust estate, such share in each case to be determined by the value of the said trust estate at the time of the majority of such child."

At the date of the will testatrix had had one child, of which Howarth was reputed father, and who was now living. After the date of the will she had four other children, three of whom were living at her death, which took place on the 8th of January, 1864.

It did not appear that there was any revocation, alteration, or republication of the will by the testatrix.

This bill was filed by the infant child born before the date of the will, against the trustees and the three infant after-born children, for administration, and praying for a declaration that the Plaintiff was solely entitled.

Mr. W. W. Cooper, for the Plaintiff:-

The law is settled that neither a man nor a woman can provide for future illegitimate children: Medworth v. Pope (1); Barnett v. Tugwell (2); Bentley v. Blizard(3).

Mr. E. K. Karslake, for the Defendants, the after-born children:-

Sarah Mills could not by this will have provided for any of her children other than her illegitimate children, because directly she contracted a valid marriage, the will would have been revoked.

[The VICE-CHANCELLOR:- That is only more conclusive of her intention.]

Then the question is, whether the cohabitation of a woman with her deceased sister's husband is such an immoral connection as that

(1) 27 Beav. 71.

(2) 31 Beav. 232.

(3) 4 Jur. (N. S.) 652.

the Court will go the length of depriving the children of this property, in order to punish the parents.

[The VICE-CHANCELLOR:- The law calls such a cohabitation as this incestuous. It makes no distinction between a man's marrying his wife's sister, and marrying his mother.]

The Master of the Rolls, in Medworth v. Pope (1), grounded his decision expressly on the reason that a provision for future illegitimate children is contra bonos mores: but it may be submitted whether a provision for the children of a union with a deceased sister's husband is such an "incentive to vice," as Mr. Jarman expresses it (2), as to induce the Court to carry the rule so far as to deprive these children, an of whom must have been born before the will could come into operation, of the provision intended for them, and whether the maxim will not apply, quod fieri non debet factum valet.

Mr. J. J. Jervis, for the Trustees.

SIR W. PAGE WOOD, V.C.:-

I cannot doubt that there was an intention on the part of the testatrix to provide for these unfortunate children, and for their sakes I regret that it cannot be carried into effect. The point was mooted in the case of Wilkinson v. Adam (3), in which Lord Eldonthrew out some suggestions, but said he would leave the point where he found it, without any determination. Since then the question has been decided by the present Master of the Rolls, the only difference being that in that case the provision was made by the reputed father, whereas here it has been made by the mother; and if it be contra bonos mores in a reputed father to provide for after-born illegitimate children, it cannot be less so in the case of a mother.

I apprehend that, after the well known case of Pratt v. Mathew (4), the policy of the law, that a man cannot make a legal bequest to the future children of his marriage with his deceased wife's sister, is clearly established. In the present case

(1) 27 Beav. 73.

(2) Jar. Wills, 3rd ed. vol. ii. p. 228.

(3) 1 V. & B. 422, 468.

(4) 22 Beav. 328.

two classes of children were mentioned by the testatrix, "legitimate or otherwise," and to hold that the one could take with the other would be a direct encouragement of an unlawful cohabitation.

Now as to the light in which a marriage of this kind is regarded by the law, I would rather take the expression of opinion of the Court of highest authority than declare any view of my own. The case of Brook v. Brook (1), has decided that a marriage with a deceased wife's sister is not to be regarded with greater favour than any other description of illegitimate connection. Lord Campbell, then Lord Chancellor, says (2):- "Sitting here as a Judge to declare and enforce the law, I do not feel myself at liberty to form any private opinion of my own on the subject, or to inquire into what may be the opinion of the majority of my fellow citizens at home, or to try to find out the opinion of all Christendom." Again (3): "The marriage we have to decide upon has been declared by the Legislature to be 'contrary to God's law,' and on that ground it is absolutely prohibited"; and further (4): "The Legislature of England, whether wisely or not, considers the marriage of a man with the sister of his deceased wife 'contrary to God's law,' and of bad example." Lord Cranworth says (5):- "Assuming, then, as we must, that such marriages are not only prohibited by our law, but prohibited because they are contrary to the law of God, are we to understand the law as prohibiting them wheresoever celebrated, or only if they are celebrated in England? I cannot hesitate in the answer I must give to such an inquiry. The law, considering the ground on which it makes the prohibition, must have intended to give to it the widest possible operation. If such unions are declared by our law to be contrary to the laws of God, then persons having entered into them, and coming into this country, would, in the eye of our law, be living in a state of incestuous intercourse. It is impossible to believe that the law could have intended this." Lord St. Leonards says (6):- "I think that the marriage has no validity in this country on the first ground, for by our law such a marriage is forbidden, as contrary, in our view, to

(1) 9 H. L. C. 193.

(2) Ibid. 209.

(3) Ibid. 215.

(4) 9 H. L. C. 218.

(5) Ibid. 226.

(6) Ibid. 234.

God's law." And Lord Wensleydale says (1): "If our laws are binding, or oblige us, as I think they do, to treat this marriage as a violation of the commands of God in Holy Scripture, we must consider it in a Court of justice as prejudicial to our social interest, and of hateful example."

With all these opinions before me, I cannot consider this cohabitation, whether incestuous or not, as anything better than a state of fornication; and I must accordingly hold the rule of the Court to apply.

The declaration must be, that the Plaintiff is solely entitled to the fund.

Solicitor for all parties: Mr. John B. Sorrell.

(1) 9 H. L. C. 245.