INHERITANCE--LEGITIMACY--IMPOTENCE AND STERILITY
--SURVIVORSHIP--MALPRAXIS AND NEGLECT OF DUTY
--FEIGNED DISEASES--EXEMPTION FROM PUBLIC DUTIES
--WILLS
INHERITANCE
This subject will be discussed under the following heads: (1) The child
must be born alive. (2) The child must be born during the lifetime
of the mother. (3) The child must be born capable of inheriting. (4)
Tenancy by courtesy, and _possessio patris_.
=1. The Child must be born alive.=--This has been discussed in the
preceding section.
=2. The Child must be born during the lifetime of the Mother.=--Death
terminates the marriage contract. Would a child born after the death of
the mother, and therefore not during marriage, be entitled to inherit?
On this point Lord Coke writes:--“If a woman, seised of lands in fee,
taketh husband, and by him is bigge with childe, and in her travell
dyeth, and the childe is ripped out of her body alive, yet shall he
not be tenant by the curtesie, because the child was not born during
the marriage nor in the life of the wife; but in the meantime her land
descended.”
It appears from this that the husband is not entitled to the life-rent.
=3. The Child must be born capable of inheriting.=--Monsters cannot
inherit according to law. Blackstone says: “A monster which hath not
the shape of mankind hath no inheritable blood,” and cannot, therefore,
inherit; but, “if it hath human shape, it may be an heir.”
Buffon classes monsters under three divisions: (_a_) Monsters by excess
of organs. (_b_) Monsters by defect of organs. (_c_) Monsters by
alteration or wrong position of parts.
A hermaphrodite inherits, or not, property according to the prevailing
sex.
=4. Tenancy by Courtesy and Possessio Patris.=--“When a man marries a
woman seised of an estate of inheritance, and has by her issue _born
alive_, which was capable of inheriting her estate; in this case he
shall, on the death of his wife, hold the lands for his life as tenant
by the courtesy of England.”
There is yet another case bearing closely on this subject, known in law
as _possessio fratris_. On this subject Mr. Amos writes: “In the event
of a man twice married dying, and leaving a daughter by each marriage,
his estate would be equally shared by the daughters of the two
marriages; but if we suppose that there is also a son by the second
marriage, born in a doubtful state, the legal effect of his momentarily
surviving birth would be to disinherit the daughter of the first
marriage entirely, and transfer the whole of the estate to the daughter
of the second marriage, she being sister to the male heir, while the
daughter of the first marriage is only half-blood.”
In both of these cases proof of live birth, as before mentioned, is of
the slenderest kind.
A fœtus in the womb (_en ventre sa mère_) may--(_a_) Have a legacy
or estate made over to it. (_b_) A guardian assigned to it. That
these conditions may take effect, it must be born alive. (_c_) Be an
executor. To exercise this _post partum_ function, the child must in
England have attained the age of twenty-one.
LEGITIMACY
Every child born in wedlock is presumed to have the husband of the
woman as its father; but this presumption may be denied for the
following reasons:
1. Absence or death of the reputed father.
2. Impotence or disease in the reputed father, preventing
matrimonial intercourse.
3. In the case of a premature delivery in a newly-married woman.
4. Want of access.
5. The paternity of the child may be disputed when the woman
marries immediately after the death of her husband.
In Scotland, a child is held to be legitimate if born ten lunar months
after the death or absence of its alleged father; and the absence of
the supposed father must continue till within six lunar months of the
birth of the child, to prove its illegitimacy.
In the same country, a child born before marriage is rendered
legitimate by the subsequent marriage of the parents. This is not the
case in England.
A child born during wedlock is legitimate, although the date of
conception may be before marriage. A child born after the death of its
mother is held to be legitimate. A child may, as Taylor remarks, be
conceived before marriage, and born after the death of the mother, and
yet be legitimate, though neither conceived nor born in wedlock.
The Code Napoleon prohibits the contraction of a second marriage until
ten months after the death of the first husband; and this is also the
case in Germany. The Anglo-Saxon law prohibits remarriage for twelve
months. In Britain no time is fixed by law.
=Duration of Pregnancy.=--The consideration of this subject is of
importance in its relation to the legitimacy of a child.
The natural period of human gestation is usually stated at forty weeks,
ten lunar or nine calendar months, or 280 days. In Prussia, the period
is extended to 302 days, and in the Code Napoleon to 300; in Scotland,
ten months is held as the limit.
The duration of human gestation is subject to considerable variation;
in some females it is always protracted; in others, always premature.
Several modes of calculation are adopted by women:
1. Ascertained date of impregnation from one coïtus.
2. Supposed sensations of female at time of conception.
3. Suppression of the catamenia. This is open to the
objection, that causes other than that of impregnation
may arrest them. The catamenia may be stopped by cold or
other causes for two or three months, and then, before
their return, pregnancy may occur, thus upsetting all
calculations. The usual mode of calculation is from two
weeks after the last menstruation, and the period so fixed
is corrected by the time at which quickening occurs.
4. Period of quickening. (_a_) Quickening supposed when pregnancy
is absent. (_b_) Pregnancy without quickening.
(_c_) Variations in the time of its occurrence.
Whichever may be the mode of calculation adopted, it may be stated
that, as a rule, the period of human gestation is from 275 to 280 days,
and that cases of alleged pregnancy beyond 300 days must be received
with considerable caution.
The pregnancy of the Countess of Gloucester was held, in the reign of
Edward II., to be legitimate, although her husband had been dead one
year and seven months at the date of the application.
=Premature Births.=--The question may be asked, At what period of
gestation may a child be born viable--that is, capable of living and
attaining to maturity? Seven months, or 210 days, is considered as the
limit; but cases have been recorded of children born at six months
being reared. The Roman law admitted the legitimacy of seven-months’
children. (For the Signs of Immaturity, see “Table of the Development
of the Embryo,” pp. 35, 36.)
=Superfœtation.=--The term is used to imply the conception of a second
embryo in a woman already pregnant, and the birth of two children at
one time, differing considerably in their maturity, or of two births, a
considerable period of time elapsing between each. The possibility of
this occurrence has been doubted.
Churchill, in his work on Midwifery, writing on this subject says:
“In conclusion, I would say--(1) That the theory of superfœtation is
_unnecessary_ to explain the birth of a mature fœtus and a blighted
ovum, of a mature and immature fœtus born together or within a month
of each other, or of fœtuses of different colours, as they may
reasonably be supposed to be the product of one act of generation, or
of two nearly contemporaneous. (2) That, in cases of double uterus,
it is possible for a second conception to take place, and--judging
from the subsequent birth of the second child in the only case on
record--at a later period than the first. (3) That, in the remaining
cases, where one mature child succeeded the birth of another after a
considerable interval, we have no proof of a double uterus in any,
and positive proof that in one case it was single; and that to the
explanation of these cases no theory as yet advanced is adequate, that
of superfœtation being opposed by physical difficulties which are
unsurmountable in the present state of our knowledge.”
The late Dr. Matthews Duncan has, however, shown that the mouth of the
womb is not completely closed by conception, and the communication
between the vagina and ovary is not destroyed for some months after
impregnation, and that there is no impediment to the ascent of the
spermatozoa. Galabin[16] records an instance of extra-uterine and
uterine pregnancy occurring at the same time, the extra-uterine fœtus
being advanced in development as compared with that in the uterus, and
regards the condition as one of superfœtation.
[16] _Manual of Midwifery_, 1886.
The late Dr. Milne, while admitting this form of pregnancy as possible,
though very rare, remarks: “This variety we should not think due so
much to mechanical hindrances as to the absence of proper ovules. It
would imply extraordinary vigour were perfect ovulation to be achieved
for any length of time after impregnation.”
IMPOTENCE AND STERILITY
Evidence in relation to the above subjects may be required in actions
for nullity of marriage, divorce, legitimacy, inheritance, pregnancy,
and criminal assault.
=Impotence.=--By impotence is meant the incapacity for sexual
intercourse, and applies both to the male and female; but the term is
more especially used in reference to the former.
=Sterility.=--Sterility denotes the incapacity for procreation of
children; is also applicable to both sexes, but more usually in
reference to the female. A person may be impotent without being
sterile, although the former is usually regarded as implying the
latter. On the other hand, a person may be sterile without being
impotent, the former not necessarily denoting the latter. In reference
to nullity of marriage, if natural sexual relations are not and cannot
be consummated, the marriage will be declared null and void, provided
that such inability of consummation was unknown to the person bringing
the action for nullity before marriage. Impotence is sufficient ground
for bringing an action for nullity, provided it was present at the date
of the marriage, that it is irremediable, and that the person bringing
the action was not informed of it previously. Should, however, the
marriage have been consummated and impotence develop later, there will
be no grounds for such an action.
=Impotence and Sterility in the Male.=--This may arise from some
_organic defect_ of the organs or _functional disorder_. In reference
to the former there are certain abnormalities of the male organs which
have to be considered. Monorchids, men in whom one testis is absent
from the scrotum, are not necessarily impotent or sterile; nor are
cryptorchids, where both testes are undescended. In many of these
cases spermatozoa are absent from the seminal fluid with consequent
sterility; on the other hand, procreation has taken place, proving that
cryptorchids are not necessarily sterile.
Absence of the penis may be the result of want of development, injury,
disease, or operation. The penis may be present but attached in its
whole length to the scrotum; this may be remedied by operation.
Epispadias, so often associated with ectopion vesicæ, as a rule renders
an individual impotent and sterile. On the other hand, hypospadias
does not necessarily bar procreation; it will depend largely upon the
position of the urethral opening, and the possibility of its being
remedied by operation.
Removal or destruction of both testes renders a man sterile eventually,
but not necessarily impotent.
Functional disorder due to disease may give rise to impotence,
although the organs may remain anatomically perfect. Diseases such as
diabetes and influenza, neurasthenia, tabes dorsalis, myelitis, mumps,
and orchitis, and injuries to the head may be causative factors in
impotence.
The capacity for sexual intercourse is influenced to a varying degree
by age. Sexual capacity is regarded as coincident with puberty. In
judging the sexual capacity of a youth, age is of less moment than the
degree of physical development. I have seen a male child of five years
of age with as complete development of the sexual organs as an adult,
and with a deep voice. At the other extreme of life it is impossible to
lay down any definite limit to sexual capacity. Although it is regarded
as diminishing with age, yet there are many instances of procreative
power in men of an advanced age.
The principal points for consideration in reference to impotence
and sterility in the male are: (_a_) Does the condition prevent the
secretion of semen? (_b_) Does it prevent the conveyance of semen to
the vagina?
=Impotence and Sterility in the Female.=--As in the male, these may be
associated with organic defect or functional disorder. The external
organs may be absent, with or without the internal. The vagina may
be wanting through lack of development, or it may be obstructed by
mal-development or the result of disease. Again, the external organs
may be present, but the internal absent in whole or part. The hymen
may be imperforate, or unusually tough. Diseases of the uterus often
give rise to sterility. Vaginismus, in which attempts at coïtus cause
painful spasm, may prevent intercourse. In reference to functional
disorders are to be noted extreme debility, constant leucorrhœa,
dysmenorrhœa, menorrhagia, and amenorrhœa, all of which may be
associated with or causative factors in sterility. Emotional psychical
conditions may prevent sexual intercourse in women. General diseases,
however, do not necessarily prevent intercourse, as the woman may
remain a passive agent, neither is bodily deformity always a barrier to
the act.
The advent of sexual capacity in women is regarded as coincident with
the onset of the menses, about fourteen years of age, but pregnancy has
been known to take place prior to the first menstrual period. The age
at which the menses first appear varies in no small degree. It has been
known to occur during the first year of life, and pregnancy has been
known to occur as early as the eighth year. The menopause in women is
regarded as coincident with loss of procreative power. Women as a rule
cease to menstruate at forty-five years of age, but in not a few the
function persists until fifty, in exceptional cases to a more advanced
age. It is rare for a woman to bear children after the menopause, but
exceptions have been known to take place.
In the case of a husband seeking a nullity of marriage on the grounds
of impotence or sterility in his wife, the question at issue is not
whether she can bear children, but can she permit sexual intercourse?
Many conditions which cause sterility in the woman need not render her
impotent, and unless the latter obtains a nullity of marriage would not
be allowed. Further, the conditions which render the woman impotent
must be permanent and irremediable.
SURVIVORSHIP
The question of survivorship is not infrequently raised when a mother
and her new-born infant are found dead, or where several persons
have perished by a common accident. In the first case the mother is
generally presumed to have lived longest; and this presumption may be
borne out by the fact of the delivery being premature, or if there
be considerable disproportion between the size of the child and the
maternal passages. As pointed out before, important civil rights may
depend upon the question as to the live birth of an infant; and the
husband‘s rights to be _tenant to the courtesy_ will, of course, depend
upon the view taken as to the probable survivorship or not of the child.
With regard to the second question, much will depend upon the relative
ages and strength of the individuals. Sex will also have to be taken
into consideration. In the case of one or more persons found dead,
either from wounds or other causes, the fact of some being warm and
others cold, the presence of the _rigor mortis_ in one and absence in
the other, will point to the probable survivorship. The severity of the
wounds and injuries to large arterial trunks must also be considered.
(See test case, Underwood _v._ Wing, 1 Jur. N.S. 169.) In this case a
man, his wife, and three children were washed overboard and drowned,
one child, however, being seen alive a few minutes after the others
were submerged. The question at issue was, Did the husband survive the
wife, or the wife the husband? and on this Wightman, J., in summing
up, said: “We may guess, or imagine, or fancy, but the law of England
requires evidence, and we are of opinion that there is no evidence upon
which we can give a judicial opinion that either survived the other;
in fact, we think it unlikely that both did die at the same moment of
time, but there is no evidence to show who was the survivor.” Verdict
for the plaintiff.
MALPRAXIS AND NEGLECT OF DUTY
A medical man is liable to a civil action for damages who, by a
culpable want of care and attention, or by the absence of a competent
degree of skill and knowledge, causes injury to a patient. And it is
not necessary that the patient should have employed or was to have
paid him, provided always that there be no negligence or carelessness
on the part of the patient. Lord Chief-Justice Tindall remarks: “Every
person who enters into a learned profession undertakes to bring to the
exercise of it a reasonably fair and competent degree of skill.” It
has also been decided that if the defendant acted honestly, and used
his best skill to cure, and it does not appear that he thrust himself
in the place of a competent person, it makes no difference whether he
was at the time a regular physician or surgeon or not (R. _v._ Van
Butchell; R. _v._ Williamson, &c.). A surgeon does not undertake to
perform a cure, nor does he profess to bring the highest professional
skill into the consideration of the case; but he does undertake to
bring a fair and reasonable amount. The degree of skill required by law
is good common sense, or such knowledge as the operator had, joined
with a good purpose to help the afflicted, even if such interference
rendered the patient a cripple for life. “It would be dreadful,” says
Hullock, B., “if every time an operation was performed an individual
was liable to have his practice questioned.” “So, if a physician or
surgeon give his patient a potion or plaster to cure him, which,
contrary to expectation, kills him, this also is neither murder nor
manslaughter, but misadventure.” A medical man is only liable for gross
negligence, not for every slip he may make; but the distinction between
criminal and actionable negligence cannot be defined; but it appears
that the negligence must be so gross as to come under the legal meaning
of the word “felonious.” (See p. 82.)
FEIGNED DISEASES--MALINGERING
Human ingenuity is not wanting among those who, for private ends,
pretend to be suffering from disease. The soldier or sailor, anxious to
escape the dangers of active service, finds a ready means of evading
his duties by shamming; the prisoner, in order to lighten the burden of
his punishment, does the same. A man declares himself impotent to save
the expense of keeping an alleged bastard child, or to avoid punishment
for rape. Beggars appeal to the public by feigning some painful
disease, and incautious benevolence becomes the dupe of the clever
impostor.
Any attempt at classification is here out of the question, nor does
it appear necessary to give a long list of diseases which have been
feigned, or the means that have been employed by artists in deception.
To give some general hints for guidance is all that will be attempted
here, leaving matters of detail to the acumen of the medical examiner,
who, if in active practice, will have many opportunities of testing his
powers of discernment:
1. Never be satisfied with one visit, but pay a second at a
short interval, and unannounced.
2. Have the patient carefully watched in the interval of
your visits.
3. Examine each organ of the body separately, carefully
comparing the state of each with the symptoms described
by the patient.
4. Note the discrepancies in the statements of the patient
as to his symptoms and their known occurrence in real
disease.
5. Sometimes ask questions the reverse of his statements,
or take his statements for granted, when in all
probability he will contradict himself.
6. Remove all bandages and other dressings.
7. The administration of sham physic, or the suggestion of
some heroic mode of treatment; the application of the
actual cautery may have a beneficial effect.
8. Pay little attention to the reports of bystanders, or of
the culprit‘s fellow-prisoners.
9. Anæsthetics may be employed, if necessary, for the
purpose of detection.
10. The motives of deception should be inquired into, and
borne in mind, in the examination of all cases.
EXEMPTION FROM PUBLIC DUTIES
The existence of certain diseases may be claimed as a bar to active
service, both in a civil and in a military capacity; and the opinion
of a medical man may be required as to the fitness or unfitness of the
individual for the service from which he claims exemption. In giving
certificates of this nature, the medical practitioner cannot be too
guarded in wording them; and each case must be treated on its merits,
so that strict justice may be done.
Among the diseases which may incapacitate a man for active employment
may be mentioned--syphilis; hernia; phthisis; affections of the eyes,
attended with dimness of vision, or colour blindness; varicose veins;
and some other diseases.
WILLS
Although a medical man, as a rule, should refuse to draw up a will,
still there are occasions when his doing so may save much litigation
and expense. The following directions may therefore be of use:
1. Let the wishes of the testator be expressed in the plainest and
simplest words, avoiding all expressions that seem to admit of another
meaning than the one intended.
2. All alterations in the will should be initialled.
3. Do not scratch out a word with a knife, and no alteration must be
made after the will is _executed_.
4. Two witnesses are necessary, who must both be present and sign the
following attestation at the end of the will, or on each sheet if more
than one sheet of paper be used: “Signed by the testator (or testatrix,
as the case may be) in the joint presence of us, who thereupon signed
our names in his (or her) and each other‘s presence.”
5. Add address of witnesses.
6. A clause appointing an executor should be inserted thus: “And I
appoint J. B. executor of this my will.”
7. Begin, “This is the last will of me, W. B. of S.”; and end, “and I
revoke all former wills and codicils.” Dated this ___________ day of
______________ one thousand, &c.