39 Ind. App. 201 | Ind. Ct. App. | 1906
This was a suit to quiet title to real estate, in which John Holliday was plaintiff, and all of the appellants were defendants. The complaint was in a single paragraph, upon which issues were joined by answers and replies. The appellant John C. Morin filed a cross-complaint, to which a demurrer was sustained. The cause was tried by the court, and resulted in. a finding and judgment for the plaintiff below. Overruling appellants’ motion for a new trial, and sustaining the demurrer to the cross-corn-
The facts upon which the rights of the respective parties must be determined are as follows: John Cline died intestate on August 19, 1902, and was at the time of his death the owner in fee simple of the real estate in controversy. He left surviving him no widow, no legitimate child or children, or descendants of legitimate children, no father, mother, grandfather, or grandmother, no brothers and no sisters. He left surviving him the plaintiff below, John Holliday, his illegitimate child, and the only child surviving him. From the birth of said Holliday said Cline, up to the time of his death, openly acknowledged, received, reared, educated, and supported him as his own child. Appellants John C., George E., and Albert C. Morin, and Annie M. Johnson, were the only legitimate children of-Clara Morin, who was the illegitimate child of John Cline. Said Clara Morin died intestate June 7, 1892, leaving the above and foregoing named children surviving her. From the birth of said Clara Morin until her death said Cline openly acknowledged, received, reared, educated, and supported her as his own child. Until the death of said Cline he at all times openly acknowledged, received, and claimed the above named children of Clara Morin as his grand
The statute upon which the contending parties base their right to inherit from John Cline is section one of the act approved March 9, 1901 (Acts 1901, p. 288), §2630a Burns 1901), which is as follows: “That the illegitimate child or children of any man dying intestate and having acknowledged such child or children during his lifetime as ■his own, shall inherit his estate, both real and personal, and shall be deemed and taken to be the heir or heirs of such intestate in the same manner and to the same extent as if such child or children had been legitimate: Provided, that the testimony of the mother of such child or children shall in no case be received to establish the fact of such acknowledgment; and be it further provided, that the provisions of this act shall not apply where the father of the illegitimate child, at his death, had surviving legitimate children or descendants of legitimate children.” Upon the facts recited and this statute, there is no doubt that upon the death of John Cline, his illegitimate son, John Holliday stood in the line of inheritance from him. Appellants concede this, but assert that they are also in the line of inheritance, and that John Holliday inherited only the undivided one-half of the real estate, and that they inherited the other undivided one-half. This court, in two recent cases, has had occasion to construe this statute upon facts similar to those in the case at bar, as to the right of an illegitimate child to inherit from its putative father, in each of which cases such right is affirmed. Townsend v.
The question, therefore, for decision, is this: Does the statute give to the children of Olara Morin the right to inherit the interest in the real estate which she would have inherited had she survived her putative father ? This question opens a new field for legal exploration in this State, and counsel have not called our attention, nor has our research led us, to any case in other jurisdictions where the question has been decided. It is, therefore, a question of first impression.
In Kelley v. Vigas (1884), 112 Ill. 242, 54 Am. Rep. 235, it is said: “The word ‘heir/ it is said, when uncontrolled by the context, designates the person appointed by law to succeed to the estate in question, as in case of intestacy, and so the authorities seem to hold. Who are heirs of a deceased person is determined and declared by statute.”
The statute takes away the partition wall between the father and his illegitimate child, and puts the latter in the direct line of inheritance, as against all collateral heirs, and against everyone except legitimate children of the father or their descendants. In the case of an adopted child it is often true that there is no blood kin between it and the adoptive parent, and yet, under the statute, both the adoptive child and its lawful descendants inherit from 'the adoptive parent. In the case of an illegitimate child, the relation of consanguinity exists between it and its father which no law can dissolve. There is, therefore, greater reason and broader equity for extending the inheritable right to the lawful children of such illegitimate child, from the latter’s father, than there is in extending that right, under §837, supra, to the legitimate children of an adopted child.
In Tennessee there is a statute similar in effect and purpose to the one before us, and in the case last cited it was held that the obvious purpose and intent in enacting such statute was to entitle illegitimate children to inherit their father’s estate the same as legitimate children. In the case of Town of Rockingham, v. Town of Mount Holly, supra, it was held that where an illegitimate child was legitimatized, as provided by statute, it rendered the child legitimate, the same as if it had been born in wedlock, and that it would take as the heir of its father, as one of the legal consequences resulting from such act of legitimation. To the same effect are the cases of Williams v. Williams, supra, and McKamie v. Baskerville, supra. The decision in the case of Ash v. Way (1845), 43 Va. 203, throws much light upon the question before us. In that case Robertson Way, the decedent, was the father of an illegitimate child. Such illegitimate married and died, leaving a legitimate child. The parents of such illegitimate married after her death. Her father, before his marriage, and in the lifetime of his illegitimate child, recognized her as his own child, and also recognized her as such.after her death. Upon these, facts, under the Virginia statute making an illegitimate child legitimate, it was held that the child of the illegitimate would inherit from her father.
The children of Clara Morin under the facts in this case became the lineal descendants of John Cline. His blood flows in their veins, and they are by nature and by law his grandchildren.
As the cross-complaint of the appellant John O. Morin fully states all the facts upon which he claimed an interest in the real estate in controversy, which facts are in harmony with those which fully appear in this opinion, it stated a cause of action, and was therefore not subject to the successful attack of a demurrer.
The judgment is therefore reversed, and the trial court is directed to overrule the demurrer to the cross-complaint of John O. Morin, and to grant all of the appellants a new trial.