169 Mo. 432 | Mo. | 1902
— This is a suit for the partition of two hundred acres of land in Dade county, described in the petition, of which the plaintiff claims that he is entitled to an undivided one-fourth, and that the defendants are entitled to the1 other undivided three-fourths.
' The circuit court found that the plaintiff had no interest in the premises, and from the judgment against him in favor of the defendants, he appeals. On August 26, 1896, Alvin
The first reported case in which this statute was construed is the case of Stevenson’s Heirs v. Sullivant, 5 Wheaton (18 H. S.) 207, decided in 1820, in which it was held, notwith■standing'this statute, that a bastard was still, as at common law, fiMus nullim as to his collateral blood relatives on the ■mother’s side, and could not inherit from them. The next, is the case of Scroggin v. Allan, 2 Dana (32 Ky.) 363, decided in 1834, in which the case of Stevenson’s Heirs v. Bullivant was followed by a divided court, Underwood, J.,
The next, is the case of Garland v. Harrison, 8 Leigh 368, decided by the Court of Appeals of Virginia in 1837, in which that court held that the bastard brothers of the decedent, as well as his mother, were entitled to take as his heirs, under this statute, and utterly repudiated the construction placed upon-it by the Supreme Court of the United States in Stevenson’s Heirs v. Sullivant. Three able, harmonious and exhaustive opinions were delivered in the case, all agreeing in the purpose of the statute, Judge Parker saying in the course of his opinion that the object of the statute was - “to give the bastard a mother and maternal kindred, and to malee them heritable from each other in the order prescribed by the law of descents, as-if the bastard had been lawfully begotten of such mother. . . . The only case which in any degree conflicts with this opinion, is the one cited, of Stevenson’s Heirs v. Sullivant, 5 Wheaton 207. And even that seems to have turned upon the point, that the descent between brother and brother was immediate, and not on the part of their mother. I can not, however, bring my mind to assent to the reasoning or to the conclusions of the learned judge who- delivered the opinion in that case. He seems to me to- have taken too narrow and technical a view of the subject, and to have relied on the disabilities of bastards growing put of the common law, without duly considering the policy of our act of descents, which leaves little or nothing for the common law to act upon, but creates a system complete in itself. Be that
In the case of Little v. Lake, 8 Ohio 289, decided by the Supreme Court of that State in 1838, it was held on the authority of Stevenson’s Heirs v. Sullivant, that the estate of an intestate bastard descendant without issue, who had survived his mother, did not pass to the maternal line' under this statute. Although this ruling was in fact overturned by a statute of Ohio, passed in 1853, yet in the case of Lewis v. Eutsler, 4 Ohio St. 354, decided by the Supreme Court of that State in 1854, the decisions in Stevenson’s Heirs v. Sullivant, and Little v. Lake, were reversed and overruled,
“The narrow - construction adopted in both these cases,.' is said to be founded upon the settled meaning of the expression, ex parte materna, when used in reference to the course of descent of real property in the English law. I may not fully understand what rule is intended to be here-invoked. I know of none but that- strict rule of feudal' policy embodied in the fifth canon of descents, which con-' fined the estate to the blood of the first purchaser. If the estate came through'the paternal line to the person last seized,' it should never descend to one in the maternal; and, e con-verso, if it came through the maternal line, it should never descend to one in the paternal, but should rather escheatto the lord of the fee. Very anciently, it is true, a feudum novum could only descend to the lineal descendants of the first acquirer. But more than a century before the passage' of our statute, this harsh rule of a military system had been entirely abrogated in England; first, by granting a feudum novum to be held ui feudum antiquum; and finally, by considering every acquisition of an estate in fee simple by purchase, as a feudum antiquum, or feud of indefinite antiquity ;■ thereby enabling the collateral kindred of the grantee, or descendants from any of his lineal ancestors, by whom the lands might possibly have been purchased, to- succeed to the inheritance. [3 Cruise’s Big., 380.] But let it be granted (what, I think, no amount of industry could prove) that a part of the language of our statute is a tolerable translation of words which imported an exclusion of collaterals, in the English law; and still but little is done towards arriving at the intention of the plain men who passed the Act of 1831 — four-fifths of whom were ignorant of the existence of any such rule, and of the language in which it is expressed. To find what- they intended, it is necessary to consider all they have said, and to interpret it in accordance with the usual and or
This was the state of the adjudications on this statute when the case of Bent’s Admr. v. St. Vrain, 30 Mo. 268, was decided by this court in 1860, in which upon the authority of the eases of Stevenson’s Heirs v. Sullivant, 5 Wheat 260, Little v. Lake, 8 Ohio 289, and Remmington v. Lewis, 8 B. Monroe 606, it was held that this statute did- not render a bastard capable of transmitting an estate by descent to his mother or to his illegitimate brothers. In this decision neither the Virginia cases aforesaid, nor the later Ohio case repudiating the doctrine of the Stevenson c-ase, are mentioned, either in the opinion or briefs of counsel. The amendment of 1865, by which in express terms the bastard was made capable of transmitting his estate by descent to his mother, was the answer returned by the Legislature to the
On the other hand, under the rulings in the Virginia, the later Ohio, and Vermont cases cited, the fact of descent cast after the death of the mother, would make no difference in his right of inheritance, and he would take the same interest in his uncle’s real estate as he would have taken if his mother had survived her brother. In many other States having statutes substantially the same as the Virginia statute, and none others need be considered, like rulings have been made. [Briggs v. Greene, 10 R. I. 495; McGuire v. Brown, 41 Iowa 650; Gregley v. Jackson, 38 Ark. 487; Butler v. Elyton Land Co., 84 Ala. 384.] And under the ruling of the Supreme Court of the State of Connecticut, on the general statutes of descents of that State, in which no such provision for this class of persons is made, it is held that illegitimate children may inherit to the mother or to any relative, lineal or collateral, on the mother’s side. [Dickinson’s Appeal, 42 Conn. 491; Heath v. White, 5 Conn. 228; Brown v. Dye, 2 Root (Conn.) 280.]
In Briggs v. Greene, supra, it is said by the Supreme Court of Ehode Island, speaking through Bratton, C. J.: “As the bastard had no> blood which could give him kindred in any degree as ascertained by the common law or by tire 'statute, he was equally incapable of inheriting by any of those rules. r, Neither was he capable of transmitting inheritance; kindred only were capable of transmitting it. This .he wanted, and for want of it the current of descent was ob
In McGuire v. Brown, supra, it was held hy the Supreme Court of Iowa, that “an illegitimate child inherits from the mother, and the fact of her death before descent cast will not prevent the child from inheriting her share of the estate.”
In Gregley v. Jackson, supra, it is said by the Supreme Court of Arkansas, per Eakin, J.: “Legitimate children of the mother may transmit an inheritance to any and all collateral relations on the mother’s side, who are of her blood, and so may her illegitimate children. This construction is too obvious to allow any serious consideration, of the suggestion that the statute was meant to confine inheritances of illegitimate children to or from the mother, or through her
In Butler v. Eylton Land Co., supra, in -which it was held by the Supreme Court of Alabama that bastard children are capable of transmitting inheritance on- the part of the mother, and when a bastard dies intestate leaving a bastard sister by the same mother, her estate will pass to that sister, Somervii/le, J., who delivered the opinion of the court, after reviewing the cases in closing, says: “Opposed to this view is the case of Bent’s Admr. v. St. Vrain, 30 Mo. 268, decided in 1860, which follows the United States Supreme-Oourt (Stevenson’s Heirs v. Sullivant, supra) without noticing the Virginia decisions; and Remmington v. Lewis, 8 B. Monroe 606, decided in 1818, which omits to notice any of the foregoing cases. We adopt the view of the Virginia court, as being more in accordance with the principles of justice and the enlightened and liberal policy of modern legislation on this subject.”
In view of what has been said, we do not think that the sanction given by this court in Bent’s Admr. v. St. Vrain to the doctrine of the case of Stevenson’s Heirs v. Sullivant, ought to preclude us from adopting the same rational, enlightened and humane construction of this statute given it by the highest court of the State from which it emanated, supported as it is by such an array of authority, and so obviously in accord with the letter and spirit of the statute, as indicated in the more recent case of Marshall v. Railroad, 120 Mo. 275. Hence, we conclude that under the statute, the plaintiff being the son of his mother as “if he had been lawfully begotten of her,” has inheritable blood on her side which entitles him to take by descent, an undivided one-fourth interest in the real estate described in the petition, of which his mother’s brother, the said Alvin W. Moore, died seized and possessed, and to partition thereof accordingly