87 Ky. 216 | Ky. Ct. App. | 1888
delivered the opinion of the court.
Tliis appeal presents but one question. Can the legitimate children of a bastard inherit from the bastard brother of their parent, who dies after the death of such parent?
At the common law a bastard is nullius films. Blackstone says that he is of kin to no one; derives no inheritable blood from any one, and can, therefore, neither be heir to any one, or have heirs, save of his
“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.” (1 M. & B., 565.) This was. the first innovation upon the common law rule in this State. It was copied verbatim from the Virginia statute of 1785; and in the case of Stevenson’s Heirs v. Sullivant, 5 Wheaton, 207, where bastards claimed to inherit from a legitimate brother, the Supreme Court of the United States construed it as meaning only that bastards ‘ ‘ shall have a capacity to take real property by descent immediately or through their mother in the ascending line, and transmit the same to their line as descendants, in like manner as if they were legitimate.”
This court considered it in 1834 in the case of Scroggin v. Allen, &c., 2 Dana, 363. Henry Edgar, a bastard, died, leaving a legitimate child, to whom his land descended, but who died in infancy. The mother of the bastard was also dead, and' the question was, whether his legitimate brothers and sisters or his wife took the estate. This court followed the Supreme Court, holding that the statute only permitted the bastard to inherit from the mother, and transmit an inheritance to his own issue; and while to this extent quasi legitimate, yet in all other respects he was a-bastard, the mother being unable to take from him, and he being in law without father, brothers or sisters. Thus the law remained until 1840, when another change was made. The act then passed provides:
*219 “That the mother shall be, and is hereby, rendered capable to inherit and take by descent or distribution, as heir or distributee oí her bastard child ; and brothers and .sisters of the same mother, born out of wedlock, shall be capable to inherit, and take by descent or distribution from each other, as though born in wedlock, and as brothers and sisters of the whole blood.!’ (Lough. Digest, page 211.)
In Remington v. Lewis, 8 B. M., 606 (1848), it was said that the statute as thus amended permitted the mother to inherit from her illegitimate child and. her illegitimate children from each other; but the question there was, whether the legitimate brother of the bastard, or the latter’s wife, should take; and it was held that it did not operate to establish a right either in the illegitimate children to inherit from the legitimate, or in the legitimate to take from the illegitimate. The bastard under this construction has, under the law of descent, no brothers or sisters, save the illegitimate children óf the same mother.
The acts of 1796 and 1840 were, in substance, incorporated into the Revised Statutes (1852), and also into the present General Statutes (1873). The provision is the same verbatim in each, and reads thus: “Bastards shall be capable of inheriting and transmitting an inheritance on the part of or to the mother; and bastards of the same mother shall be capable of inheriting and transmitting an inheritance on the part of each other, as if such bastards were born in lawful wedlock of the same parents.”
It was said in Allen v. Ramsey’s Heirs, 1 Met., 635 (1858), that this statute embraces all the provisions of
In Berry v. Owens’ Heirs, 5 Bush, 452, O survived his sister, and her only child, an illegitimate daughter. It was decided that B, the son of the illegitimate daughter, could not inherit from 0, who died intestate and without descendants. The record in this case was an imperfect one; and, doubtless owing to this fact some portions of the opinion are not only wanting in that clearness of statement for which the writer was justly distinguished, but go beyond the question presented. It is evident, however, that the case now presented is unlike it.
In Jackson v. Jackson, 78 Ky., 390, it was held that a bastard, can not inherit through his mother from her ancestors or collaterals.
We have briefly noticed the above cases by way of calling attention to the fact that they are unlike the one now before us. In the most of them the right of a bastard to inherit was in issue. Here the legitimate heirs of parents, who, if alive, would take, are asserting a right to the inheritance. We must not confound the law applicable to bastards with that applicable to the legitimate children of a bastard. If the appellees in this case were bastards, undoubtedly they could not inherit from the brother of their deceased parents; but being legitimate, why do they not succeed to all the inheritable rights of their parents? The latter and the intestate were all bastards by the same mother. This
It is urged that the bastardy of the parents stopped the current of inheritable blood. While this is true at common law, yet the statute has declared that it shall flow on as between bastards by the same mother, and that they shall inherit from each other. It legitimates bastard children by the same mother, first as to their mother, and second as to each other. It puts them upon the footing of legitimate brothers and sisters as to each other; and the statute of descent applicable to legitimate brothers and sisters, therefore, applies as between them and to their legitimate descendants. It follows from this, in our opinion, that the legitimate child of a deceased bastard may inherit from the bastard’s mother ; and that such a child succeeds to the parent’s right of inheritance from a bastard brother or sister. The legitimate child of a bastard has all the rights of any child as to the parent; and the bastard parent can transmit to his or her legitimate child all the rights he or she has, equally with any other parent. Among them is the right to inherit from a bastard brother or a bastard sister; and if they are brothers and sisters in contemplation of law, it follows logically that the legitimate child of a deceased one should succeed to the inheritance that would have belonged to the parent were he or she alive. This is equitable. •
To say that the legitimate offspring of a bastard shall not take what he would have inherited, if alive, would not only be unjust but unreasonable. If, as we think, the effect of the statute be to make bastard children by the same mother legal brothers and sisters as to inheritance from each other, then it follows that not only the spirit, but even the letter of our statute of descents, gives to the legitimate children of one of them, per stirpes, the portion the parent, but for his or her death, would have inherited.
Judgment affirmed.
