47 Ind. App. 228 | Ind. Ct. App. | 1911
— Appellant, the illegitimate child of William Otto Dixon, commenced this proceeding against appellees, John C. Wells, Catherine O. Wells, William P. Callahan and the State Life Insurance Company, to quiet her title to certain lands in Jackson county, Indiana. A cross-complaint was filed by appellee John C. Wells to quiet his title to said real estate. William P. Callahan, claiming title as the illegitimate child of William Otto Dixon, also filed a cross-complaint to quiet his title to said lands.
Upon an agreed statement, the court made a special finding of facts and stated conclusions of law thereon. The facts, affecting the questions presented by this appeal, as found by the court, show that Michael P. Dixon and Ber
The court also found that after the granting of the divorce between Michael P. Dixon and his wife, Berthena, said Michael P. intermarried with Elizabeth Sawyer, and to this union there was born one child, Virgil C. Dixon, who was alive and a resident of the State of Iowa on December 19, 1896 — the date of the death of William Otto Dixon; that said William Otto Dixon, in addition to his half-brother, said Virgil C. Dixon, left surviving him his cousins, Leonard and Josephus Pluffington, sons of a deceased brother of Berthena Dixon, and Robert J. Esham, son of a deceased sister of said Berthena Dixon; that at the time of the death of said William Otto Dixon said Leonard Huffington and Robert J. Esham were residents of Jackson county, Indiana, and said Josephus Huffington was a resident of the State of Kansas; that appellant, Ora Belle Dixon Stewart, and appellee William P. Callahan were illegitimate children of William Otto Dixon, and were recognized and acknowledged by him to be his children during his life and up to his death; that appellee John C. Wells holds the real estate in dispute by deed from Virgil C. Dixon, dated February 13, 1897; that the
At the death of William Otto Dixon on December 19, 1896, the only statute in force in the State of Indiana, which gave illegitimate children any rights in the estate of their deceased father was §2999 Burns 1908, §2475 R. S. 1881, and reads as follows: ‘ ‘ The real and personal estate of any man dying intestate, without heirs resident in any of the United States at the time of his death, or legitimate children capable of inheriting without the United States, shall descend to and be vested in his illegitimate child or children who are residents of this state or any of the United States; and such illegitimate child or children shall be deemed and taken to be the heir or heirs of such intestate in the same manner, and entitled to take by descent or distribution to the same effect and extent as if such child or children had been legitimate: Provided, that the intestate shall have acknowledged such child or children as his own during his lifetime: And provided, further, that the testimony of the mother of such child or children shall in no ease be sufficient to establish the fact of such acknowledgment. ”
The words of the statute which govern in this ease do not admit of construction. They are plain and unambiguous. The rule of descent provided, has been recognized for such length of time that it has become a rule of property. We agree with appellant’s counsel, that the law as declared works a hardship in this case, where it appears that the father fully acknowledged appellant as his child. But we do not believe that the “cogent reasons” for changing the rule by judicial construction, referred to in the case of Pond v. Irwin, supra, obtain here.
Judgment affirmed.