US SUPREME COURT DECISIONS

Previous to the year 1775, H.S. of Virginia cohabited with A.W. and had by her the appellants, whom he recognized as his children. In July, 1775, he made his will, which was duly proved after his decease, in which he described them as the children of himself and of his wife A., and devised the whole of his property to them and their mother. In June, 1776, he was appointed a colonel in the Virginia Line upon the continental establishment and died in the service, having in July, 1776, intermarried with the mother and died leaving her pregnant with a child who was afterwards born and named R.S. After the death of H.S. and the birth of his posthumous son, a warrant for a tract of military lands was granted by the state of Virginia to the posthumous son, R.S., who died in 1796, in his minority, without wife or children and without having located or disposed of the warrant. His mother also died before 1796. Held that the children of H.S. were not entitled to the lands, as devisees under his will, under the act of assembly; nor did the will so far operate as to render them capable of taking under the act, as being named his legal representatives in the will.

The appellants were not legitimated by the marriage of H.S. with their mother, and his recognition of them as his children, under the nineteenth section of the Act of Descents of Virginia, 1785, which took effect on the first of January, 1787.

The appellants were not, as illegitimate children of H.S. & R.A.W., capable of inheriting from R.S. under the Act of Descents of Virginia.

This was a suit in chancery. and the case upon the facts admitted by the parties was as follows:

Previous to the year 1775, Hugh Stephenson, of Virginia, lived and cohabited with Ann Whaley, and had by her the appellants in this cause, whom he recognized chanrobles.com-red

Page 18 U. S. 208

as his children. In July, 1775, he made his will, in which he described the appellants as the children of himself and of his wife Ann and devised the whole of his property to them and to their mother. In July, 1776, he intermarried with the said Ann Whaley, and died the succeeding month, leaving her pregnant with a child, which was afterwards born and was named Richard. The will was duly proved after the death of the testator. In June, 1776, the testator was appointed a colonel in the Virginia Line upon continental establishment, and died in the service. After his death and the birth of Richard, a warrant for 6,666 2/3 acres of military lands was granted by the State of Virginia to the said Richard, who died in the year 1796 in his minority, without wife or children, and without having located or disposed of the above warrant. His mother also died before the year 1796. The defendant claimed the land in controversy under John Stephenson, the elder paternal uncle of Richard, and the appellants having filed their bill in the court below to recover the premises in question, the same was dismissed and the cause was brought by appeal to this court. chanrobles.com-red

Page 18 U. S. 255