7 Ga. 512 | Ga. | 1849
By the Court. —
delivering the opinion.
The complainants in this case seek to recover, as legatees, under the will of Mrs. Ann S. Rakestraw. The complainants insist that Mrs. Sarah Jane Edmondson is the legitimate heir-at-law of Gainham L. Rakestraw, deceased.
The second section of the Act declares, “ that the name of Sarah Jane Wells be changed to the name of Sarah Jane Rake-straw, and that she be declared legitimate, and capable of inheriting, and like privileges in law, as if she had been born in lawful wedlock.” Dawson’s Comp. 330. Mrs. Edmondson, as the record discloses, was born out of lawful wedlock, and therefore, cannot be the heir of any person by the Common Law; she has no ancestor from whom any inheritable blood can be derived. 1 Bl. Com. 459. The Common Law is so far altered by Statute in this State, as to authorize illegitimate children to inherit from their mother, and from each other. Prince, 202. Did the Act of 1826 make Sarah Jane Rakestraw, formerly Sarah Jane Wells, the legitimate heir-at-law of Gainham L. Rakestraw, and give to her a legal capacity to inherit his estate ? By the Common Law, as we have seen, she could not inherit his estate, if born out of lawful wedlock; and the fact that she was reputed to be his child, and recognized by him as such, would not change the rule. In Eng
This Act of the Legislature is in derogation of the rule of the
Conceding, ex gratia, that the Act of 1826 was, by the provisions of the Act of 1819, notice to Gainham L. Rakestraw and Mrs. Rakestraw, at the time she made her will, it cannot be pretended that Act conveyed notice of any thing more than what appears on its face. For aught that appears on the face of the Act of 1826, Gainham L. Rakestraw may have lived and died without any knowledge that Sarah Jane Wells was ever intended to be made his lawful heir, and to inherit his property after his death. The Act itself does not make her his heir, on its face, or declare she shall inherit Ms property. Not'is it apparent that the testatrix, whose bounty is now claimed, had any knowledge whatever that Sarah Jane Wells was even a pretended heir, or claimed to inherit as the heir of her husband, Gainham L. Rakestraw. The Act changes the name of Sarah Jane Wells to Sarah Jane Rake-straw, but does not declare she shall inherit from, or be the legitimate heir of, any particular individual. To allow the introduction of parol evidence, extrinsic of the Act, in order to give it effect, so as to establish the claim of heirship, according to the facts presented by this record, would, in our judgment, he a dan
The Supreme Court of North Carolina held, that as the bastard was not made legitimate to any particular person, the only effect of the Act was. to change his name. The judgment of the Court in Drake vs. Drake is, we think, well sustained by principle, and although it is not binding upon us as authority, yet, being the judgment of an able and intelligent tribunal of one of our sister States, upon very nearly the same statement of facts, it is entitled to, the highest consideration and respect.
The only effect of the second section of the Act of 1826 is, in
Let the judgment of the Court below be affirmed.