228 Mass. 602 | Mass. | 1917
This case relates to the distribution of the residue ■of the portion of the estate of Sylvia Ann Howland which would have been paid to Joseph H. A. Kelley had he been living. He ■entered into a legal marriage in Michigan before 1870 with a
It is clear that, if the form of marriage between Joseph H. A. Kelley and Rosalena Cunningham had occurred in Massachusetts, and they had lived here and their children had been born here, they would not be the legitimate children of their father, and hence not lineal descendants of Gideon Howland. There is no statute of this Commonwealth which goes far enough to permit that. But it is indubitable that, under the law of Indiana in force at the time of their birth and since, the sons of the void marriage
Removal of the obstacles to the legitimation of innocent children, who have no responsibility for the circumstances of their birth, and thus ameliorating some of the apparent harshness of the common law, has been the progressive policy of our law as illustrated by statutes and decisions. See Loring v. Thorndike, 5 Allen, 257, and Monson v. Palmer, 8 Allen, 551, where some of the statutes are reviewed.
It is not contrary either to the statute law or the public policy of this Commonwealth that the children of a marriage, bigamous on the part of one parent but innocent on the part of the other, should be declared legitimate to some extent and under some circumstances. There is no express prohibition of such recognition in our statutes. There is no intimation of the inhibition of such recognition in any of our decisions. It was early provided by statute that in proceedings for the dissolution of a marriage, void on account of prior marriage of either party, if it appeared that the second marriage was contracted in good faith by both parties and in the full belief that the former husband or wife was dead, the
The will of the testatrix gave the residue of her property, upon the termination of the life estate, to the “lineal descendants then living” of her grandfather. This will speaks from her death, which occurred in 1865. “Lineal descendants” means the legitimate immediate and remote progeny in direct line. These words of description in the will lay down the general rule for the ascertainment of the beneficiaries; but they do not completely and accurately define how the status is to be created which confers the capacity to share the benefaction. They do not prescribe how lineal descendants shall be determined. Therefore the testatrix doubtless intended by those words that only those who would be the lawful issue of her grandfather according to the law of Massachusetts should be participants in her bounty. But these words do not mean that those who are lineal descendants must be ascertained on the footing that all claimants to be such were born and had always lived in this Commonwealth as their domicil of origin and residence, no matter where born and domiciled in fact. . If that had been the purpose of the testatrix, apt words to that end would have been used. The law of Massachusetts recognizes that legitimacy ordinarily is a status dependent upon the law of the domicil of the person in question. The lineal descendants of any resident of Massachusetts, according to its law, are those who by
Since the sons of the Indiana marriage are the legitimate issue of their father according to the law of the State of their birth and domicil, they possess that status which must be recognized in this Commonwealth. They are thus lineal descendants of Gideon Howland by reason of being the legitimate sons of their father. As such they are entitled to share in the estate of the testatrix.
The decree is to be modified so that in substance the distributive share to which Joseph H. A. Kelley would have been entitled, if living, is to be divided equally between Frank H. Kelley, James A. Kelley and Charles B. Kelley.
So ordered.