30
The Law of Persons
the institution itself has passed out of use.[1] If a widow so far forgets herself as to remarry within the period of mourning and issue is born which may be attributed to either father, it is presumed to be the child of the second husband.[2]
Eene moeder maakt geen bastaard. A bastard has no lawful father and therefore no rights of succession ex parte paterna. But with the mother it is different; for ‘eene moeder maakt geen bastaard’, and therefore her illegitimate issue succeeds to her and to her blood relations.[3] Such was the opinion of Grotius, though, as regards these last, Van der Linden inclines to a contrary view.[4]
Legitimation.
Illegitimate issue may be legitimated: (1) by subsequent marriage; (2) by an act of grace on the part of the Sovereign.[5] The first of these modes alone obtains at the present day.[6] Children born in adultery or incest (which extends to all the prohibited degrees) are incapable of legitimation by subsequent marriage.[7]- ↑ By the Transvaal Marriage Ordinance (No. 3 of 1871), s. 9, no widower might marry within three months after the decease of his wife, and no widow within three hundred days after the decease of her husband; but this is no longer law, having been repealed by Procl. No. 34 of 1901. For the Orange Free State see Law No. 26 of 1899, sec. 13. The annus luctus is unknown in Cape Colony (1 Maasd., p. 19; Nathan, Common Law of South Africa, vol. i, p. 100 (2nd ed., p. 108)), Ceylon and British Guiana, though in the last-named colony there is a clause abolishing it in the Draft Ordinance of the Common Law Commission of 1914.
- ↑ Voet, 1. 6. 9; who gives amongst other reasons because ‘ipse incertitudinis auctor et causa est’.
- ↑ Gr. 2. 27. 28; Van Leeuwen 1. 7. 4; Anton. Matthaeus, Paroemiae, No. 1; V. d. L. 1. 4. 2. No distinction is made between adulterine, incestuous, and other bastards. Anton. Matth., ubi sup., secs. 7 and 8; Fitzgerald v. Green, ubi sup. pp. 474 ff.
- ↑ V. d. L. 1. 10. 3. The question was much debated. See against Grotius, Bynkershoek, Quaest. Jur. Priv. lib. III, cap. ii.; for Grotius, Van der Vorm (Versterfrecht, ed. Blondeel, pp. 212 ff.), and V. d. K. Th. 342–5. See also Mogamat Jassiem v. The Master (1891) 8 S. C. 269. As to succession to bastards see Van der Vorm, ubi sup. p. 237.
- ↑ Gr. 1. 12. 9; Van Leeuwen, 1. 7. 5; Voet, 25. 7. 6 and 13; V. d. K. Th. 171–2; V. d. L. 1. 4. 2.
- ↑ (Cape Province) 1 Maasd., p. 9.
- ↑ Van Leeuwen, 1. 7. 7; Voet, 25. 7. 8; V. d. L. 1. 4. 2. Grotius (1. 12. 9) merely says that legitimation is not readily accorded to them. This refers only to legitimation by act of grace, for as pointed out by Kotzé J., in Fitzgerald v. Green, ubi sup. at p. 472, legitimation
