32 Ky. 363 | Ky. Ct. App. | 1834
Lead Opinion
delivered the Opinion of the Court
James T. Edgar, the son of Henry Edgar, a bastard, having derived a tract of land by descent from his father, died, under the age of, twenty one, without issue; and the land is now the subject of contest, between the mother of James T. Edgar, and a purchaser from the legitimate children of Henry Edgar’s mother. It does not distinctly appear, which died first — James T. Edgar, or his paternal grandmother; but the inference is that she did.
The case turns upon the question, whether the chibdren of Henry Edgar’s mother, are his brothers and sisters, within the meaning of the fifth section of the statute of descents ; which provides, that, where an infant shall die without issue, having title to real estate, derived by descent from the father, the mother of such infant shall.not succeed thereto, if there be living any brother or sister of the father.
As by the rules of the common law, a bastard had no inheritable blood, and could neither receive from, nor transmit an inheritance to, his father, mother, brothers or sisters, it is very clear there can lie no pretence for the claim here asserted in behalf of the children of Henry Edgar’s mother, if those rules are still in force. For the act can only be presumed to speak in reference to such brothers and sisters, as would have inherited, provided the father of the infant had died intestate and childless. But, it is supposed, that the eighteenth sec
In making title by descent, it shall be no bar to a demandant, that any ancestor, through whom he derives his descent from the intestate, is or hath been an alien. Bastards, also, shall be capable of inheriting, or transmitting inheritance, on the part of their mother, in like manner as if they had been lawfully begotten of such mother.”
The same clause in the Virginia statute of descents, came under the consideration of the Supreme Court of the United States, in the case of Stevenson’s heirs vs. Sullivant, 5 Whea. 207, in a case exactly like this; and it was construed by that court, not to transfer the estate of a legitimate child, to its bastard brothers and sisters by the mother’s side. The true legal exposition of the words used, was held to be, that bastards shall have a capacity to take by descent, immediately from or through their mother, in the ascending line, and ol transmitting the same to their line, as descendants, in like manner as if they were legitimate. The object of the legislature was deemed to have been, to remove the impediment to the transmission of inheritable blood from the bastard, in the descending line, so far as regards a maternal inheritance, and to give him a capacity to inherit, in the ascending line, from and through his mother. “ But,” says the court, u although her children are, in these respects, quasi legitimate, they are, nevertheless, in all others bastards, and as such, they have, and can have, neither father, brothers or sisters.”
To permit bastard brothers and sisters to inherit from each other, in the manner and to the extent contended for, would require a paraphrase of the statute, something like this. “ Bastards shall be capable of inheriting from their mother and her kindred, and she and her bastard children, and other kindred, shall be capable of inheriting from her bastard children, in the same manner as if the bastards had been lawfully begotten of such mother.The language used is so unlike this, and falls so far short of it, that it appears to us a vain effort to attempt to construe the two modes of expression, int»
The judgment must be affirmed, with costs
Dissenting Opinion
not concurring with the other members of the Court, in the foregoing decision, delivered a seperate Opinion and argument, as follows -.—
I cannot agree to the interpretation now, for the first time, given by this court, to the eighteenth section of the act of December, 1796, directing the course of descents. In my opinion, the children of the same mother, who are bastards, may, under a correct exposition ef that section, take and transmit estates te and from ' each other, by descent, in the same manner they might, and would do, were they the lawfully begotten children of the mother. If they were lawfully begotten of such mother, then they would be brothers and sisters, and as such, the fourth and fifth sections of the act would operate in their behalf. To my mind, the eighteenth section has so clear a meaning, growing out of the language used, that were it not for the case of Stevenson’s heirs vs. Sullivant, I should think there could be no room for doubt.
The first clause of the section provides, that “ in making title by descent it shall be no bar to a demandant, that any ancestor through whom he derives his descent from the intestate, is or hath been an alien.” The rule here laid clown was intended, no doubt, to operate in favor of legitimates. In virtue of it, brothers and sisters might inherit from a deceased, intestate brother or sister, notwithstanding the father or mother, by whom the relationship existed, was at the time,
The second clause of the section provides : — " Bastards also, shall be capable of inheriting or transmitting inheritance on the part of their mother, in like manner-as if they had been lawfully begotten of such mother.” What common law rules did this clause of the statute' intend to repeal ? I answer, ¿wo. First, that which declares that, " a bastard shall never take by descent;” and secondly, that which declares, that "a bastard can have' no heir but the issue of his body.” These were the-common law disabilities. The legislature intended to remove them ; but how far ? Totally on the side of the mother, or ex parte materna; but to no extent on the part of the lather. In nature, a bastard must have a father;, in law, he has none. Coke says, a bastard is nullius filiusThe statute intended to give him inheritable blood to-some extent. What is the limit ? " He shall be capable of inheriting, on the part of the mother, in like manner as if he had' been lawfully begotten.” What does thisniean ? It certainly intends to make him legitimate, to all intents and purposes, so far as it respects taking estates by descent, on the part of the mother. Blood is the principle of descent. Here the statute lias given a new capacity to the bastard ; it has infused into him inheritable blood, contrary to the common law maxim, that "a bastard shall never take by descent.” But inheritable blood has not been given without qualification ; it is confined to the part of the mother : for if it had not been so confined, the statute would likewise have repealed the maxim, that a bastard is jilius nullius., and let him in to share inheritances on the part of tiie father. In thus giving inheritable blood on the part of tiie mother, the statute has made no distinction between lineal and collateral ancestors. The bastard may “ make title by descent,” through his mother, either from lineals, or collaterals, in the same manner as though
The statute not only intended to give the bastard inheritable blood, so that he might take estates by descent, through his mother, from her kindred, and from the mother herself, but it. likewise intended, to confer a capacity to transmit inheritance, ex parte materna, in like ■ manner as if he had been lawfully begotten. How: transmit on the part of the mother ? Surely it can mean nothing else, but to the kindred on the mother’s side, in contradistinction to the kindred on the father’s side ; for it must be borne in mind, that the statute never intended to establish any relationship between the bastard and his father, or his father’s kindred. But what is to be transmitted ? An inheritance. And what is an inheritance ? “ An estate descending to the heir” (2 Com. 201,) by operation of law, on the death of the ancestor, is called an inheritance. If, then, a bastard has an estate which can descend, and he has an heir on whom the law can cast it, upon- his death, then lie has a capacity to transmit the inheritance. Now, at common law, although a bastard might die seized of an estate in its character descendible, yet, unle«s he had “issue of his body,” there w'as no heir to whom the inheritance, or the estate, could he transmitted by descent, and it would escheat, propter defectum sanguinis. Here the statute steps forward, in such a case, and provides an heir in the kindred on the part of the mother. Such is the inevitable result of making the bastard capable of “ transmitting inheritance on the part of the mother, in like manner as if he had been lawfully begotten.” If the bastard bad “ issue of Iiis body,” the common law furnished an heir. If he had no issue, he would be indebted to the statute for an heir.
The const ruction put upon the statute by the Supreme Court, confines its operation to such real estate, so far as relates to the “ transmitting of inheritances,” as comes by descent, in virtue of the statute, t.o the bastard, immediately, or through bis mother, in the ascending line. Thus real estate which the bastard acquires by purchase, is thrown without the operation of the statute, and is left to be escheated, unless the bastafd shall have issue of his
We should remember, that the doctrine laid down in the English books, relates to legitimates, and not to bastards ; and consequently, when they speak of the heir of the mother, or father, passing the estate to the heir “on the part of the mother, or father” it necessarily and exclusively relates to the identical estate which has been inherited, and which is to be transmitted by descent. But how does all this apply to bastards ? They can take nothing by descent, unless aided hv the statute, and therefore, it never could be said of them, that what they receive as heir of the mother, shall go to the heir “ on the part of the mother.” When the statute places them in a condition where such language can with propriety he applied to them, I admit, that it should have the same extent of meaning, and no more, which it had as applied to legitimates. What was the meaning of the expression, on the part of the mother, or father, applied
Under my construction, I make the bastard children of the mother heirs to each other ; and where any one of them dies intestate and childless, I think the statute transmits the estate of the deceased, whether it has been purchased or inherited, to the survivors. If this be not the case, then bastards do not stand as they would, “had they been lawfully begotten.” The obvious meaning of the language, is, to confer on them all the capacities of legitimate children, as it relates to inheriting or transmitting inheritance on the part of the mother,” that is, taking as heirs from the mother and her kindred, and transmitting estates to the mother and her kindred-The disjunctive or is placed in the statute between inheriting and transmitting inheritance, to shew that the legislature fully comprehended the difference between, faking as an heir, and transmitting as an ancestor, and that it was intended to provide for both. If the copulative and had been used, it might have been contended with more propriety, that the legislature were legislating exclusively in reference to estates which might be-