37 Ind. App. 127 | Ind. Ct. App. | 1905
Lead Opinion
This was a suit for the partition of real estate, in which appellee was plaintiff. While the complaint is in three paragraphs, the facts upon which the rights of the parties depend are briefly stated in the second. It is there alleged that Marion Townsend died intestate, seized in fee simple of an undivided two-thirds interest in the real estate’ in controversy; that he never married; that he died without lawful issue or the descendants of lawful issue; that he left the appellee surviving, she being his issue by Keziah Kenworthy, born out of wedlock; that the intestate during his lifetime acknowledged appellee as his own child; that he left surviving him appellants, who were his brothers; that appellant Charles owned the undivided one-third of said real estate, and that no person or persons had any right, title or interest therein except appellee and appellant Charles. Appellant William was made a party, as disclosed by the other paragraphs, because he, in connection with Charles, was in possession, etc. The issues were joined by an answer in denial. Trial by court, resulting in a finding for appellee and a decree ordering partition.
Appellant’s motion for a new trial was overruled, and such ruling is the only error assigned. While the motion alleged several reasons why a new trial should be granted, the only one argued is that the decision is not sustained by sufficient evidence.
It will be observed both from the statute and the case cited that if an intestate left an illegitimate child or children, and .also brothers and sisters, the latter took the estate, and the former were left remediless. This being true, the legislature undertook the duty of caring for the interests of illegitimate children, who at common law were fatherless, and had no right to inheritance. They were mere outcasts, and it was an act of humanity, quickened by good conscience and advancing civilization, for the legislature to remove, so far as possible, the blight and curse of their illegitimacy, and clothe them with the rights of inheritance under such conditions as it might impose.
There is no controversy about the following facts: Marion Townsend was never married. No legitimate issue of his body survive him. He died the owner of the real estate in controversy. Appellants were in possession thereof. They denied appellee’s rights therein. Appellee was the illegitimate child of the intestate.
There are two points af contention which will be considered in their order: (1) Does the evidence establish the fact that Marion Townsend “during his lifetime” acknowledged appellee “as his own” child ? Appellee assumes that the evidence does establish this fact, while the contrary is earnestly contended for by appellants. It should be remembered that the language of the statute is “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,” etc.
• Having reached the conclusion that the evidence establishes the fact that Marion Townsend acknowledged appellee “during his lifetime as his own child,” within the meaning and intent of the statute, we come to the consideration of the only remaining question about which there is any contention, viz.: (2) Can appellee inherit under the provisions of the statute, where it appears that the only acknowledgement by the intestate that his illegitimate offspring was his own child antedated the time when the statute went into effect? The statute under consideration has never been before the courts of appeal for construction, and hence the question presented is one of first impression
9. Statutes of this character are remedial, and should be liberally construed so as to carry out the manifest intention of the legislature. Black, Interp. of Laws, p. 311; Brower v. Bowers (1850), 1 Abb. App. Dec. 214; Beall v. Beall (1850), 8 Ga. 210; Swanson v. Swanson (1852), 2 Swan (Term.) 445.
Counsel for appellants, to support the proposition that appellee can not inherit under our statute, because, if her putative father ever acknowledged her, it was before the statute became effective, cite, among others, the following cases: Brown v. Belmarde (1864), 3 Kan. 41, 53. Stevenson v. Sullivant (1820), 5 Wheat. *207, 5 L. Ed. 70. In Alston v. Alston, supra, the court disposes of the above-cited cases as follows: “The cases of Brown v. Belmarde [1864], 3 Kan. 41, and Stevenson v. Sullivant [1820], 5 Wheat. *207, 5 L. Ed. 70, as well as the case of Rice v. Efford [1808], 3 H. & M. (Va.) 225, on which the latter of these two cases is based, all relate to inheritance by illegitimates under a statute passed after the death of the ancestor, and whatever language may have been used apparently supporting the decision in Hartinger v. Ferring [1885], 24 Fed. 15, must be regarded as pure dictum.”
It is but fair to say that the case of Hartinger v. Ferring, supra, was decided by Judge Shiras as one of the judges of the eighth federal circuit, and the case tuyned upon the construction .of the Iowa statute, just as in the case of Alston v. Alston, supra, and he held the recognition required by the putative father must have occurred after the passage of the act. The decision in Hartinger v. Ferring, supra, was rendered in June, 1885, before the supreme court of Iowa had construed the statute. The general rule is that the construction put upon a statute
Moen v. Moen (1902), 16 S. Dak. 210, 92 N. W. 13, follows the rule declared in Alston v. Alston, supra. In the Moen ease the court said: “No one has any vested rights in his ancestor’s property until the latter’s death. He may not survive the ancestor. The ancestor may dispose of the property by will, or the law of succession may be changed before his title becomes vested. * * * Has the paternity of the person claiming to be an heir been acknowledged by the deceased ? * * * The time and place of such acknowledgment are not prescribed by-the statute. It may have been made at any place and at any time after the birth of the claimant and before the death of the ancestor. * * * There is, therefore, no merit in the contention that the acknowledgment in this case is ineffectual because it was executed before the statute took effect.” These authorities are in harmony with the spirit of the statute which they interpret and construe, and appeal to us as declaring a just principle of law as applied to our own statute.
Appellee having established, by competent evidence, that her putative father “acknowledged” her “during his lifetime as his own” child, although such acknowledgment was before the statute took effect, our conclusion is that the statute makes her his heir, and confers upon her the
Judgment affirmed.
Rehearing
On Petition fob Reheabing.
Petition for rehearing overruled.