Webb v. Webb

40 Tenn. 68 | Tenn. | 1859

McKinney, J.,

delivered the opinion of the Court.

The complainant’s bill, which was dismissed on demurrer, presents this ease: L. H. Webb died intestate, in Sullivan county, on the 8th of June, 1858, possessed of property, both real, and personal. He was of illegitimate birth — the child of complainant, Elizabeth Webb, who afterwards intermarried with the complainant, James E. Webb, by whom she had several children born in wedlock, who are made defendants to the bill. The intestate left a widow surviving him, who is also a defendant, but, no child. The question is — who succeeds to his estate ?

Eor the complainants, it is argued, that the estate goes either to the mother, or to the legitimate brothers, of the intestate. On the other side, it is insisted that it goes to his widow; and so we think.

Some confusion was produced in the argument, in consequence of not discriminating between the rules applicable, in cases of intestacy,- to persons of legitimate birth, and illegiti-mates.

The general laws of descent, it must be remembered, do not, in general, apply to illegitimates, unless embraced in terms, or by necessary implication.

The rule governing this ease, in our judgment, is found in the act of 1851-2, ch. 89, which has been incorporated into the Code, see. 2423. It is as follows : “ When an illegitimate child dies intestate, without child or children, husband or wife, his real and personal estate shall go to his mother; and if there be no mother living, then equally to his brothers and sisters by his mother, or descendants of such brothers and sisters.” And it may be remarked, that the rules of descent prescribed in the preceding sections of this article of the Code, are applicable to the estates of persons of legitimate birth, dying intestate.

Under the section of the Code just cited, it results, by necessary implication, that the mother cannot take, except in the event of the intestate’s dying without either “ child or children, husband or wife.” The course of descent, in such case, contemplated by this section, is, that the estate shall go, first, to the child or children of the illegitimate, if any there be; and if none, then to the surviving husband or wife, as the case may be, if husband or wife survives ; and if not, then to the mother; and if the mother be not living, then to his brothers or sisters by his mother, or their descendants.

Decree affirmed.