Alabama & Vicksburg Railway Co. v. Williams, 78 Miss. 209

78 Miss. 209 | Miss. | 1900

Calhoon, J.,

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, ■and applies- that rule of construction to a statute conferring rights on illegitimates. That statute was that, “hereafter all illegitimate children shall inherit the property of their mothers, •and from each other,” etc., and the court held that even the legitimate children of a bastard dying before the act could not inherit from an illegitimate uncle or aunt dying after its passage. Previously to this decision our court had been equally ■as explicit in Porter’s Heirs v. Porter, 7 How. (Miss.), 110, 111. It holds that bastards are not comprehended under the word, “children,” in our statute of descents; that those born out of wedlock are not numbered among children; that the word, “children,” in a will, where there were both legitimates and illegitimates, means legitimate children only; that illegitimates could not be the “ stock through which consanguinity could be traced;” that they could not inherit from their mother, and that “ it is the policy of the law to sustain the institution of marriage as the surest and safest groundwork on which society can rest, and to make that the only source from which inheritable blood can flow. ’ ’

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 support. The court denied relief on the ground that the legislature, by the'word, “dependent,” meant “legally dependent, ’ ’ which could not refer to an adulteress or an illegitimate, without express mention, and that the act, being an innovation on the common law, must be strictly construed, and so as not to violate the public policy of discouragement of illicit intercourse. This is an extreme case, but the ruling was manifestly right.

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.

Now, if we turn to the statute under which appellee sued (laws 1898, p. 83), we see that it refers to the “ widow, husband, father, mother, sister, brother” of deceased, and we hold that it refers only to the legal widow, husband, father, mother, sister, brother, because illegitimates are not expressly included. People unmarried can leave no widow or husband, and illegitimates can leave no father, mother, sister or brother, because they could have none at common law and no statute enables them to have either. The collocation shows that legitimates only could have been referred to. Certainly the putative father was not meant, and the adulterer or adulteress could not be meant under the terms, ££ husband or widow, ’ ’ and we can imagine no process of reasoning by which the courts can interpolate the words, £ ‘ whether legitimate or illegitimate,” before the words, “father, mother, sister or brother. ’ ’ Courts can only' pronounce what the law is, not what they may think it ought to be.

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.