172 Ind. 441 | Ind. | 1909
This was á Shit for partition and to quiet title to the real estate described in the complaint. The questions involved are presented by the exceptions of appellants to the conclusions of law.
It appears from the special finding that on October 1, 1903, Caroline E. Coats died intestate, the owner in fee simple of the land in controversy. She left surviving her no children, or their descendants, no husband, and no father nor mother. The mother of said Caroline E. Coats was the mother of two legitimate children, said Caroline and her brother, Timothy W. Truelove, and of two illegitimate sons by an unknown father. Said Caroline left surviving her, her said brother, Timothy W. Truelove, and the descendants of the two illegitimate sons of her mother, both of whom were dead at the time of her death. Appellants claim to own all of said real estate as the heirs of Timothy W. Truelove, the brother of the deceased. Appellees claim an interest in said real estate as heirs of said Caroline through their fathers, her illegitimate half-brothers.
The conclusions of law were to the effect that appellants, as the heirs of Timothy W. Truelove, were the owners in fee simple of the undivided one-third of said land, and that the descendants of each of said illegitimate half-brothers of the deceased were the owners in fee simple of the-undivided one-third of said land.
Sections 2992, 2993, 2996 Burns 1908, §§2469, 2470, 2472 R. S. 1881, are as follows: ‘ ‘ §2992. If any intestate shall die without lawful issue or their descendants alive, one-half of the estate shall go to the father and mother of such intestate, as joint tenants, or, if either be dead, to the survivor, and the other half to the brothers and sisters and to the descendants of such as are dead, as tenants in common.
Ҥ2993. If there be neither father nor mother, the broth
“§2998. Kindred of the half-blood shall inherit equally with those of the whole blood; but if the estate shall have come to the intestate by gift, devise or descent from any ancestor, those only wM) are the blood of such ancestor shall inherit: Provided, that on the failure of such kindred, other kindred of the half-blood shall inherit as if they were of the whole blood.”
Numerous decisions of the courts of other states are cited as supporting appellees’ contention, that where the statute gives an illegitimate child the right to inherit what its mother would have taken if living, such right will be extended to its descendants, if the illegitimate child be dead, but these decisions are based, so far as we have been able to ascertain, upon statutes clearly conferring upon descendants of illegitimate children the right to inherit that which would have been taken by their parents if living, provisions not contained in said sections of our statutes.
Under the facts shown by the special finding, the entire estate of Caroline E. Coats descended to her legitimate brother, Timothy W. Truelove, and from him to appellants.