63 Ind. App. 59 | Ind. Ct. App. | 1916
Lead Opinion
In the year 1910, William Powers died intestate, the owner in fee simple of a tract of land in Montgomery county, Indiana. Appellants are the natural children and only heirs of Charley Cooley who was the alleged illegitimate son of said William Powers, and who died intestate before the death of his putative father. Appeilee is the legally adopted child of said William Powers. The adopting father of appellee having died without children born in wedlock or their descendants, the point of contention presented by the appeal is whether the adopted child, appellee, was a legitimate child and rightfully entitled to inherit the estate of his adopting father as his heir, within the meaning of §3000 Burns 1914, Acts 1901 p. 288, which provides: “That the illegitimate child or children of any man dying intestate and having acknowledged such child
Concurrence Opinion
I concur in the conclusion reached in the majority opinion but I am unable to say that I wholly concur with the reasoning upon which it is based.
I do not question the right of the legislature “to place a child by adoption in the direct line of descent,” nor do I doubt that, subject to the proviso therein, such is the effect of §870 Burns 1914, supra, which provides that such adopted child shall “be entitled to and receive all the rights and interest in the estate of such adopting father or mother, by descent or otherwise, that such child would if the natural heir of such adopting father or mother. ’ ’
It is equally certain that the legislature has the right to place the illegitimate child also in the direct line of descent or do what it did do by §3000 Bums 1914, supra, viz.: make him an heir of his intestate, putative father under the conditions therein named “in the same manner as if such child had * * * been legitimate,” provided such putative father at his death left surviving him no legitimate children or the descendants of legitimate children.
In my judgment the legislature had in mind, when §3000, supra, was enacted, children of the blood only, viz., those begotten or born in wedlock and those begotten and born out of wedlock; the intent of the legislature being to provide for the inheritance of the latter when there was a failure of the blood of the former. The word “illegitimate” as used in such act means the child of the putative father begotten and born out .of wedlock and the word “legitimate” means a child begotten or born in wedlock.
By what I have said I do not desire to be understood as expressing any opinion as to the interpretation or construction that should be given to the sections of the statute, supra, further than as to the meaning of said words, “legitimate” and “illegitimate,” as used in said §3000. Nor do I deem it necessary in this ease that the court should determine or
The appellants are the children of the alleged illegitimate child of the decedent, 'William Powers, and as such are claiming the real estate in question under §3000, supra. This section does not purport to confer any right on the descendants of illegitimate children.
Section 868, supra, is very comprehensive and in effect makes the adopted child the legal heir of his adopting father “with all the rights of the natural child,” subject only to the proviso therein which does not affect the question here presented.
It follows that appellants are not entitled to the real estate in question because of the absence of any law conferring on them any right of inheritance in the estate of said decedent and that appellee is entitled to such real estate because the law makes him the legal heir in such a ease. Upon this ground and for this reason I concur in the conclusion reached in the majority opinion.
Note.—Reported in 113 N. E. 382. Power of legislature to give child under existing adoption right to inherit from parent or parent’s relatives, note, 35 L. R. A. (N. S.) 216. Inheritance by, through or from illegitimate persons, note, 23 L. R. A. 753; Ann. Cas. 1913C 1338; 7 C. J. 965. See under (1, 2) 1 Cyc 918, 931; 1 C. J. 1372, 1395.