27 N.W.2d 151 | Minn. | 1947
Plaintiff is a minor child and was born out of wedlock on December 19, 1938, to Dorothy Jung. Prior thereto, on November 1, 1938, Thomas James Kell, in writing and before a competent attesting witness, declared himself to be the father of plaintiff, who was then unborn, as part of a written stipulation for settlement entered into by the mother, the state board of control, and said Thomas J. Kell, whereby the latter agreed to pay and did pay $1,000 for and in consideration of being relieved from all further liability on account of plaintiff, pursuant to Minn. St. 1945, §
Thomas J. Kell, who during his lifetime was a member of the St. Paul fire department and also an active member in good standing of defendant association, was killed in the line of duty on January 9, 1942. According to the by-laws of defendant, if an active member dies leaving a widow who was his legally married wife or leaves a child or children, such widow and saidchild or children shall be entitled to a pension out of the association's benefit fund. In the case of a child, such pension would amount to $11.66 per month and would continue until the age of 16 years is attained. Defendant is organized under and subject to Minn. St. 1945, §
"When * * * an active member of a relief association, dies, leaving
"(1) A widow * * *; or
"(2) A child or children * * * [such] widow and the child or children shall be entitled to a pension * * *:"
Subject to certain limitations, which are not here material, such statute *404 further provides that the pension shall be granted "in conformity with the by-laws" of the association.
After plaintiff's application for a pension had been rejected by defendant, the present suit was instituted on his behalf by his mother as guardian ad litem to compel defendant to pay plaintiff the aforesaid monthly pension. The trial court found specifically that plaintiff was not a child of Thomas James Kell within the meaning of the foregoing statute and within the meaning of defendant's by-laws. The only issue we need consider is whether plaintiff, born out of wedlock and whose parentage has been acknowledged by the father in writing and before a competent witness, is a child of the said father within the meaning of that term as used in §
1. At common law, a child born out of wedlock is said to befilius nullius, the child of nobody, or filius populi, the child of the people. The common law is in force in this state except as it has been abrogated by statute or is not adapted to our conditions. 1 Dunnell, Dig. Supp. § 1503, and cases cited. Most states, including Minnesota, have enacted statutes mitigating to a greater or less degree the rigors of the common law and have conferred upon illegitimates certain limited rights. See, Minn. St. 1945, §§
2-3. We come to a consideration of the extent to which the harshness of the common-law rule has been mitigated in this state with respect to the rights and status of children born out of wedlock.
"While the common law is flexible and adaptive, and may be applied to new conditions, the courts cannot abrogate its established rules any more than they can abrogate a statute." 1 Dunnell, Dig. § 1504.
It is the province of the legislature, not the courts, to modify the rules of the common law. Congdon v. Congdon,
4. Section
"An illegitimate child shall inherit from his mother the same as if born in lawful wedlock, and also from the person who in writing and before a competent attesting witness shall have declared himself to be his father; but such child shall not inherit from the kindred of either parent by right of representation."
Obviously, the foregoing statute pertains to, and confers only, the right of inheritance. It is not in pari materia with §
"Nor can it be denied that a child born out of wedlock is as much in need of parental aid and the natural rights that go with the relationship of parent and child as those pertaining to a child born in wedlock. Every human instinct is moved toward extending a helping hand to such child, already laboring under a handicap impossible of removal. That is why the old and harsh rules of the common law have been modified and in many instances removed by statutory enactments. Our own statute isproof that we have made some progress in that direction. However, rights of inheritance are purely statutory. We as judges cannot make law. No matter what the individual judgment of a judge may be, his desire to aid in extending human rights cannot be employed to the extent of making law. Obviously, this matter is wholly one for the legislature to regulate and define." (Italics supplied.)
We have made nothing more than "some progress" in ameliorating the harsh rule of the common law. See, In re Estate of Snethun,
Plaintiff also cites §
With respect to the issues herein discussed, we find it unnecessary to express any opinion as to the effect of the putative father's act in making a cash settlement pursuant to §
In a society which has barbarically handicapped and burdened children of illegitimate parents for sins in the commission of which they had no part, much remains to be done to humanize existing rules of law. As a court, however, we must take legislative enactments as we find them and not invade the legislative field.
The judgment of the lower court must be and is affirmed.
Affirmed.