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The Hague Adoption Convention (1993)

A possible explanation of this usual judicial reaction is that it has a cer72 N.E. 8o6 (I904); Franklin v. Lee, 3o Ind. App. 31, 62 N.E. 78 (igoi); Sneed v. Ewing, 5 J. J. Marsh (Ky.) 460 (1831); cf. Wolf v. Gall, 32 Cal. App. 286, 163 Pac. 346 (igx6); and cases cited note 12 infra. A requirement that an alleged heir be legitimate in conformity with the rules governing the succession does not violate the Constitution of the United States. Olmsted v. Olnsted, 19o N.Y. 458,83 N.E. 569 (igo8), aff’d 216 U.S. 386 (gio). 12 A good example is the construction given the so-called English Statute of Merton in Birtwhistle v. Vardill, 7 Clarke & F. 895 (1839) (a child born out of wedlock but legitimized in the domicil of the parents, Scotland, through their subsequent marriage could not inherit English land). But compare the rule as to personality. In re Goodman’s Trusts, 17 Ch. D. 266 (i88); cf. Lingen v. Lingen, 45 Ala. 410 (1871); Williams v. Kimball, 35 Fla. 49, 16 So. 783 (i8g5); Smith v. Derr’s Adm’rs, 34 Pa. 126 (1859). But cf. In re Estate of Oliver, 184 Pa. 3o6, 39 At. 72 (i898). 13 Olmrsted v. Olmsted, i9o N.Y. 458, 83 N.E. 569 (igoS). X4 Moore v. Saxton, go Conn. 164, 96 At. 96o (igi6) (the law of the domidil of the parents at the time of birth controls the legitimacy of the issue of a void marriage); Rest., Conflict of Laws § 138 (Ig34); cf. Green v. Kelley, 228 Mass. 602, zi8 N.E. 235 (ig8), where the court speaks of the controlling effect of the “law of the domicil of the person in question.” As to the effect of legitimation as the result of the subsequent intermarriage of the parents see Adams v. Adams, 154 Mass. 290, 28 N.E. 26o (i8gi); Smith v. Kelly, 23 Miss. 167 (1851); Miller v. Miller, 91 N.Y. 315 (1883). As to the legitimation through other subsequent events see Blythe v. Ayres, 96 Cal. 532, 31 Pac. 915 (1892) (the domicils of the father and child were different; the law of the father’s domicil controlled so as to legitimize); Irving v. Ford, 183 Mass. 448, 67 N.E. 366 (19o3) (the father’s and not the child’s domiciliary law governed so that the child was treated as illegiti- THE UNIVERSITY OF CHICAGO LAW REVIEW tain amount of tradition behind it. The doctrine that the law of the domicil determines legitimacy had the support of Justice Story s and before him of a number of the Dutch and French statutists who regarded legitimacy as something pertaining to persons and, as such, entitled to extraterritorial recognition at a place other than the usual abode of the persons immediately affected by the acts of the parents.,6 Besides, the idea that legitimate character should as a matter relating to persons be controlled by considerations different from those which determine the classes of individuals who are to succeed as heirs has a subtle attraction. Since the domicil of the natural parent, because he is likely to be sui juris, is usually easy to determine, reference of the child’s legitimacy to the law of that place ordinarily calls for the use of relatively simple thought processes. 7 Once the domiciliary state is ascertained, the legitimacy rules of that state automatically come into operation. The occurrence of the events which bring them into operation is within the control of the parent; so, it seems natural enough to refer the question of the effect of the events to the law of the parent’s domicil at that time, that being normally the place where the parent then has his actual residence.