4 V.I. 97 | 3rd Cir. | 1959
As petitioner in this proceeding the appellant, Elvira Henderson, is seeking to establish her right to a distributive share, as in intestacy, of the estate of Inger Heyn who died leaving a will giving her entire estate to her son, Chester Ingvoldstad, who is the respondent here. Mrs. Heyn had a second son, Cornelius Pentheny, who predeceased her. Appellant sues as the illegitimate daughter of Pentheny. It is her position that under the Virgin Islands pretermission statute, as in force at the times in question,
In the present proceeding the court found on the basis of abundant evidence that Cornelius Pentheny was the father of the petitioner. Indeed, there seems to have been no substantial dispute on the issue of paternity. However, the District Court held, principally upon the authority of its prior decision, In re Nelthropp’s Estate, D.C.V.I. 1955, 3 V.I. 141, 129 F. Supp. 609, that the right of inheritance given to an illegitimate child by the Act of May 18, 1949 is concerned exclusively with inheritance where there is no will and does not bring an illegitimate child within the class of “children” or “descendants” entitled to take against a parent’s or an ancestor’s will under the pretermission statute.
Since principal reliance for this decision was placed upon the Nelthropp case,
Moreover, the court below noted that the case for the petitioner is reinforced by the particular wording of the Virgin Islands pretermission statute that the testator “shall be deemed to die intestate” with reference to the child who has been omitted from his will, and that such a child shall inherit “as if he had died intestate”. We find no satisfactory rationalization for denying this benefit to
Once it is concluded that the pretermission statute protects an illegitimate child omitted from its father’s will, it seems to follow that an illegitimate child can also take its deceased father’s share when omitted from a paternal grandparent’s will. For on its face the pretermission statute places a descendant of a child in its parent’s position. There would be no logic in treating illegitimacy as affecting the status of one but not the other.
In this connection it is relevant that when the Act of May 18, 1949, became law an illegitimate child was already entitled to inherit both from and through its mother. A much earlier enactment had provided that “[a]n illegitimate child shall be considered an heir of its mother, and shall inherit or receive her property, real or personal, in whole or in part, as the case may be, in like manner as if such child had been born in lawful wedlock; and such child shall be entitled to inherit or receive, as representing his mother and (sic) property real or personal, of the kindred, either lineal or collateral, of such mother: . . .” Code of Laws (1921) of the Municipality of St. Croix, Title II, chapter 18, § 1 (15 V.I.C. note prec. § 1). With this earlier statute on the books the proponent of the Act of May 18, 1949, prefaced his explanation of his bill to the legislature with a reminder that an illegitimate child is equally the offspring of both parents. He then stated that “the bill tends to give the same right of inheritance to children born out of wedlock as that enjoyed by children born to parents who are married”. Proceedings of the 14th Legislative Assembly, Legislative Day April 8, 1949. In other words, this bill was viewed as giving to an illegitimate child who already would inherit through its mother by representation, as well as from her directly, correlative
Several other arguments thought to justify affirmance of the decision below have been advanced and briefed by counsel for the appellee and for the executor of the Estate of Inger Heyn. We have considered all of these but find none of them persuasive.
The judgment will be reversed.
Section 7 of chapter 10 of Title II of the (1921) Code of Laws of the Municipality of St. Croix (15 V.I.C. note prec. § 1), as in force at all times relevant to this proceeding reads:
“If any person makes his last will and die, leaving a child or children, or descendants of such child or children, in case of their death, not named or provided for in such will, although born after the making of such; will or the death of the testator, every such testator, so far as shall regard such child or children, or their descendants not provided for, shall be deemed to die intestate and such child or children, or their descendants, shall be entitled to such proportion of the estate of the testator,, real and personal, as if he had died intestate, and the same shall be assigned to them; and all the other heirs, devisees, and legatees shall refund their proportional part.”
A somewhat similar provision, limited to children born after the making of a will, has been substituted for this section in the new Virgin Islands Code. 15 V.I.C. § 18.
Apparently the attention of the court below was not directed to the fact that the Nelthropp decision had disregarded the court’s own earlier adjudication, entered without opinion, granting an illegitimate child the rights denied the Nelthropp children. Estate of Noel, Probate No. 6-1950, Division of St. Croix, decided June 17, 1954.