105 Tenn. 86 | Tenn. | 1900
Mrs. Anna Bingham died in March, 1898, leaving a paper writing which was afterward sustained as her will (except that the thirteenth item -was held inoperative), and under it passed a residuary legacy to her heirs and dis-tributees. She left surviving her three brothers and one sister. Complainant also survived her, and claims to be one of her distributees and heirs.
He is an illegitimate son of Patsey Caroline Dennis, a sister of Mrs. Bingham, who died before Mrs. Bingham. The question raised is, whether this illegitimate son of the sister who died before Mrs. Bingham is entitled to take the share the sister would have taken, had she survived Mrs. Bingham. The question was raised by demurrer in the Court below. The Court overruled the demurrer, thus holding the right of the illegitimate to take, and defendants have appealed and assigned errors which present the same question in this Court.
The defendants rely upon the case of Giles v. Wilhoit, 48 S. W Rep., 268, a case decided by the Court of Chancery Appeals and affirmed by this Court, as to the result reached and announced. This case is referred to and commented upon in Laughlin v. Johnson, 18 Pickle, 460. The case of Shepherd v. Carlin, 15 Pickle, 67, is also referred to and relied on by defendants, as well as Brown v. Kerby, 9 Hum., 461. The contention, in short, is that complainant has no
The case of Giles v. Wilhoil, 48 S. W. Rep., 268, involved a construction of §4166, Shannon’s Code, which designates what persons shall inherit the estate of an illegitimate. The exact question which arose was. whether a bastard nephew, born of a bastard sister, could inherit from a bastard uncle equally with a living bastard sister of the bastard uncle, and this Court held that the word “descendants,” within the meaning of the above statute, applied to legitimate descendants of the brothers and sisters of the illegitimate. This case, therefore, involved the construction of a statute with which the case at bar* has nothing to do.
The case of Laughlin v. Johnson, 18 Pickle, 455, involved the construction of the latter part of § 4169 of Shannon’s Code, and the sole question there determined was that an illegitimate brother could inherit equally with his legitimate brothers and sisters the property of a deceased legitimate sister, who died without her husband surviving her, or without issue, and who' acquired the property through her husband. The case at bar in no way involves that portion of § 4169 of the code which is construed in the case of Laughlin v. Johnson, supra.
As the plain words of the statute precluded a child from inheriting, except as to such property as its parents had “acquired,” and, as the parents being dead, of course did not “acquire” this prop
Under the common law, a bastard had no inheritable blood.
The first act which changed the common law was that of 1819, Chapter 13, Sec. 1, which is in these words: “When any woman shall die intestate, having a natural born child or children, and no legitimate child or children, such natural born child or children shall take, by the general rules of descent and distribution, the estate, real and personal, of his or their mother, and, should either of said children die intestate, without child, his or her brothers and sisters shall in like manner take his or her estate.'' Under this Act an illegitimate child could inherit from its mother, provided its mother had no legitimate child or children. ’ This Act remained in force until the Code of 1858 was adopted. By the adoption of this code, the Act not being incorporated therein, it was repealed, and, until the Act of 1866-67, Chap. 36, Sec. 10, was passed, no law in regard to illegitimates inheriting was in force. The Act of 1866-67 is in these words: “Where any woman shall die intestate, having a natural born child or children, whether she also have a legitimate born child, or otherwise, such natural born child or children shall take, by the general rules of descent and distribution, equally with the other children, the estate, real or personal, of his or her
The Act of 1819 expressly excluded inheritances by illegitimates in the event that the mother had a legitimate child. The Act of 1866-67 not only extended the right of illegitimates to inherit from their mother, even though there were legitimate children living at the time, but it also expressly provided that the illegitimates should inherit “by the general rules of descent and distribution, equally with the legitimate child or children.”
Now, it is conceded that had the complainant in this case been legitimate, there would be no
Taking up the case of Brown v. Kerby, 9 Hum., 461, it is to be distinguished from the case at bar, in that it involves, solely, the com struction of. the Act of 1819, which simply provided to what extent an illegitimate could inherit. The provision in the Act of 1819 expressly precluded the illegitimate from inheriting where there was a natural bom legitimate child living at the death of the intestate (mother), and 'necessarily precluded the idea that the illegitimate was put upon the same plane and footing as the legitimate, while the Act of 1806-61 necessarily makes an illegitimate, so far as inheriting from its mother is concerned, the equal of the legitimate.
The case of Cherry v. Mitchell, decided by the Court of Appeals in Kentucky on the 10th day of March, 1900, and reported in the Southwestern Reporter in No. I of Vol. 55, of date April 2, 1900, is in point. Cherry, by a wVll, devised his estate to his daughter, Mary. Mary gave birth to an illegitimate child, and died in a few days thereafter. Two weeks after the death of Mary, her father, the testator, died, and his will was
The case of Grundy v. Hadfield, 16 R. I., 579, was where a man died leaving no issue, father or mother, but left, as his only heirs, a sister, two brothers, the issue of two deceased brothers, and a niece, who was a child of his illegitimate deceased
In Dickinson's Appeal, 42 Conn., p. 491, et seq., it was held that the legitimate grandchildren could inherit through the illegitimate mother and legitimate grandmother from an unmarried sister of their grandmother, recognizing the right of illegiti-mates to inherit from collateral kindred- — -that is, an illegitimate was held to have the power to inherit through its legitimate mother from the mother’s legitimate sister (illegitimate’s aunt), which is the case at bar. In Connecticut, the law in regard to inheritance by bastards, as well as the
lienee it can be seen that other States and statutes on the question of inheritance by illegit-imates, as well as statutes prescribing the general rules o.f descent and distribution, which are similar to those of our own State, allow an illegitimate nephew to inherit through its mother that estate which its mother would have received from collateral kindred had she survived, such kindred.
We think the fallacy in the opposite view is in holding the inheritance as passing from Mrs. Bingham direct to the nephew, while it passes through the mother, Patsey Caroline Dennis, and rests in complainant as her distributee. Inasmuch as the illegitimate, under § 4169, takes by the general rules of descent and distribution, he inherits the share which his mother would have inherited if she had survived her sister.
The decree of the Chancellor is affirmed, with costs, and the cause remanded to be further proceeded in.