78 Miss. 209 | Miss. | 1900
delivered the opinion of the court.
There is no reason for overruling the case of Illinois, etc., R. R. Co. v. Johnson, 77 Miss., 727, s.c. 28 So. Rep., 753, and the conclusion reached in that case should be the same in this. At the common law an illegitimate could not inherit from his own mother or any one else, and he could not transmit by inheritance, except to the heirs of his own body. He might become the propositics of a new line of descent from himself, but, until a child was born to him in wedlock, he had no kindred — no father, no mother, no sister, no brother — and nothing which he did not acquire. All kinship was denied, and no blood connection recognized, except that the courts, for the actual protection of his life as a person in the body politic, would ascertain the natural mother, and, for the conservation of the morals and decencies of society, would look into his natural blood kinship in vindicating the statutes against incest. Statutes denouncing penalties reached him, as they did all other persons, but statutes could not be availed of which would improve his condition, unless they expressly included illegitimates in their terms. The reason was to discourage adulterous connections.
In Edwards v. Gaulding, 38 Miss., 165, our court announces the rule of strict construction, which runs through all our reports, of all statutes making innovations on the common law,
Discussion might well end here, on the decisions of our own state. But the doctrine is settled in the same way in nearly all the states, if not all, which treat of it. In Vermont a statute gave a right of action to any one “-in any manner dependent on ” a person injured or dying by intoxicating liquors, against the seller of the intoxicant. In Good v. Towns, 56 Vt., 410, a man named Good died from intoxicating liquor, and Mary M. Good sued the seller, averring that she had lived with Mr. Good as his wife, but not in lawful wedlock, for many years, and had borne him eight children, and that he had acknowledged them as his, and her as his wife, in the community, though he was in fact married to'another woman, who lived in Massachusetts, and who had, long before, been through the ceremony of marriage with another man. Mary M. Good was joined in her suit by an illegitimate minor daughter of her unlawful connection with Mr. Good, also dependent on him for
In McDonald v. Railway Co., 144 Ind., 469, s.c. 43 N. E., 447, 32 L. R. A., 309, 310, Judge Monks collates the authorities on this subject, and they practically speak with one voice. Last year the whole doctrine was commented on in Railroad Co. v. Cooper, 22 Ind. App., 462, s.c. 53 N. E., 1092, et seq., with full approval. See, also, Blair v. Adams (C. C.), 59 Fed., 243; 5 Am. & Eng. Enc. L. (new ed.), 1095; Williams v. Kimball (Fla.), 16 So., 783, and, also, the authorities cited in the briefs of counsel on both sides in the case at bar and in the briefs and opinion in Railroad Co. v. Johnson, supra.
■ If anything can be said to be settled on reason and authority, it is that statutory rights of action given kindred for injuries, done another do not embrace illegitimate kindred, without express mention. Legislation must be presumed to be enacted in the light of the common law, and not to give or enlarge rights denied at common law to a class separated by it from the common mass, without express mention.
Counsel cite Marshall v. Railroad Co., 120 Mo., 275, s.c. 25 S. W., 179, where the right of the mother of a bastard to sue for his death was sustained. It will be seen on page 282, 120 Mo. (page 181, 25 S. W.), that the opinion, in fact, rests on two statutes of the State of Missouri, the first declaring the-mother to be the natural guardian of her illegitimate child. We have no such statute in Mississippi. The second declares-that the mother may inherit from her bastard child. We haveno such statute in Mississippi. Here the mother of a bastard cannot inherit from him.
The plaintiff below had no right to sue. If the right exists in any one, it cannot possibly exist in any one but the executor or administrator of the deceased.
Reversed and remanded.