Moore v. TerryMoore v. Terry
Appellee claims an undivided one-eleventh interest in lands of Charles Moore, deсeased, by virtue of her claim of inheritance as his child, and the circuit court so decreed.
*48 There is a controversy as to whether she was his child. There is no question but that appellant was a son of the deceased Moore, and has purchased the intеrest of all the heirs of deceased, other than appellee. The evidenсe- for appellee shows that Charles and Millie Moore (colored' were mаrried February 13, 1870, and -that appellee was born of Millie several months (three or four) thereafter (some say in September), and that after her birth Charles recognized her as his child along with the other ten as they came into the family ; that he eared for her in every rеspect as his own, showing no difference between her and the others, that she was known and called by his surname, and she called him “p,appy,” in all respects as the other сhildren; that he was present at her marriage and aided in procuring the license, and thе record of it shows his personal consent as her father; that he gave her some itеms of property on leaving the family, and later she returned on separation from her husband, where she remained several years until she married again.
The evidence for appellant tends to show that she was born before the marriage; that Charles was not hеr father, but he was a white man; that she was the only mulatto among Millie’s children, and had straight hair; аnd that his conduct toward her was only out of the goodness of his heart, and did not call her his child, but on one or two occasions denied his paternity. Charles’ hair was straight, and so was thаt of one of the other children.
We are inclined to accept, as better suрported by the evidence, the testimony sustaining the essential features of appеllee’s contentions. This was the view reached in the circuit court. The effect of suсh conclusion leads to the result that the decree was properly favorablе to appellee.
A bastard who is not legitimated may only of course inherit from his mothеr or her descendants, even though his paternity is satisfactorily shown. Sections 7371, 7372, Code. Thesе are two of the statutes which control descent and distribution in this state.-’ All must be taken togethеr in pari materia. Foster v. Lee,
It is not claimed that Charles made and filed the declaration provided by section 9300, Code. But as Charles and Millie married, the question is, Did Charles recognize аppellee as his child, according to the requirements of section 9299, Code? Such recognition is indisspensable and is usually shown by the manner of treatment. McBride v. Sullivan,
If such be the fact, the result follows that appellee became legitimated as a child of Chаrles for the purpose of inheriting as much so as any other child, and the common law rеlating to bastards in that respect no longer controls in the descent and distribution of the еstate of Charles respecting the rights of appellee. But the right of inheritance is then controlled by the applicable statute. Hunter v. Whitworth,
The word “reputed” in section 9299, Code, is held to be equal to “regarded,” “deеmed,” “considered,” -or “held in thought” by the husband and wife as their child either before or after marriage. It is, by marriage and such recognition, legitimated. McBride v. Sullivan, supra.
The same result fоllows -from "any conclusion as to the date of-lfer birth. Ifor though we assume as true the version of the evidence tending to show her birth before marriage, and with a white man as father, under the statute she became legitimated as his (Charles) child, following the conclusion that shе was recognized -by Charles as such and that he married her- mother. We think the evidence clearly shows that he did both.
The decree of the circuit court is supported by the conclusions of law and fact ,wMeh we have stated, and it is affirmed.
Affirmed.