70 Ind. App. 116 | Ind. Ct. App. | 1918
A judgment was entered against appellant by reason of his refusal to plead over on the sustaining of a demurrer to his complaint. The material facts alleged were substantially as follows: There were born to Riley D. and Mahala H. Wilson, husband and wife, three children, viz., Alonzo L. Wilson, Alma Cora Wilson and appellee Laura J. Bass. Alonzo L. Wilson died in 1894. Appellant is his illegitimate son. Alonzo recognized and acknowledged appellant as his son; The former on his decease left surviving him no widow or legitimate child or children, or their descendants, and no illegitimate child or children or their descendants, save appellant as aforesaid.
It seems to be conceded that under the facts alleged Mahala H. Wilson was the owner in fee of the undivided one-half of said lands. If so, it is plain that at the death of Mahala H. Wilson, her daughter, appellee Laura J. Bass, inherited at least the undivided one-half of such one-half. She inherited also from her mother the other half of such one-half, unless appellant inherited it. It follows under the facts alleged that, if appellant as the illegitimate, but acknowledged, son of Alonzo L. Wilson inherited from Mahala H, Wilson, the mother of his putative father, the one-half of the one-half interest in said lands owned by Mahala H. Wilson at her decease, this cause must be reversed; otherwise affirmed.
It will be observed that the language of §3000, supra, is to the effect that the illegitimate child or children shall inherit the estate of the acknowledging father under the circumstances named. The statute by its terms does not include within its beneficial operation the child or children of such an illegitimate. The courts, however, in construing such statute do not hold it down to its seemingly literal provisions under all circumstances. Thus the facts involved in Morin v. Holliday, supra, cited by appellant as conclusive here, were briefly and in part as follows: The intestate, John Cline, had acknowledged as his children two illegitimates, John ■ Holliday and Clara Morin. The latter died before the decease of John Cline, leaving several children, who also had been acknowledged by John Cline as his grandchildren. John Holliday died after the decease of John Cline, leaving heirs. Other facts necessary to invoke the application of §3000, supra, existing, this court, applying the rule of liberal construction, held that the children of Clara Morin, in common with John Holliday, inherited the
But Truelove v. Truelove, supra, is authority in effect that the rule of liberal construction must be applied within the terms of such a statute, rather than to extend its terms to cases not embraced by its provisions. Thus, in that case Caroline Coats died intestate owning lands in fee, leaving surviving her no parent, husband or descendants. Caroline’s mother was the mother of two legitimate children, said Caroline and Timothy O. Truelove, and also two illegitimate sons. Caroline left surviving her her brother, Timothy, and also the children of the two illegitimate sons of her mother, both of which sons died before the death of Caroline. The question before the court was whether Timothy inherited from Caroline the lands involved to the exclusion of the children of such ille•gitimates, or whether such children as heirs of Caroline through their respective fathers inherited ’ an interest therein. The court remarked in substance that, had Caroline’s mother and the three sons of the latter survived Caroline, the mother and Timothy would have inherited the land on Caroline’s decease under the provisions of §2992 Burns 1914, §2469 R. S. 1881, to the exclusion of the illegitimate sons, since, as we have said, the words “child” and “children” under that section prima facie refer to legitimates. The mother, however, and also the two illegitimates, being dead, the latter leaving children, the solution
Jackson v. Hocke, supra, also is an authority that there is a limit to the force of the rule of liberal construction when applied to statutes enacted to remove some of the diabilities of illegitimates at commox law.
The court in the Morin case supports its conclusioi through a process of reasoning by analogy from tin statute providing for the adopting of children. §87( Burns 1914, §825 R. S. 1881. This statute contain! a provision that the adopted child shall “be entitled to and receive all the rights and interest in the estafo of such adopting father or mother, by descent o; otherwise, that such child would if the nátural hei: of such adopting father or mother,” while the simila: language contained in the statute under consideratioi is to the effect that the acknowledged child under th circumstances prescribed by the statute shall inheri the estate of the acknowledging intestate “and shal
It is argued in .behalf of appellant that where' an illegitimate child is acknowledged, under the provisions of §3000,- supra, he becomes a legitimate child with full right of inheritance, in the absence of other legitimate children or their descendants, and hence that appellant in this case inherited from the mother of his putative father to the same extent that he would have inherited had he been born in lawful wedlock. We do not believe that the statute is reasonably susceptible of such a construction. The statute by its terms seems plainly to distinguish between an illegitimate and a legitimate child, extending to the-former a right to inherit from the putative father only, under certain circumstances, in case of the absence of legitimate children. Thus, the language is to the effect that- the illegitimate child of any man dying intestate shall inherit his estate to the same extent as if such child had been legitimate, provided
A comparison of §3001 Burns 1914, §2476 R. S. 1881, with §3000, supra, confirms us in such conclusion. The former is as follows: “If a man shall marry the mother of an illegitimate child and acknowledge it as his own, such child shall he deemed legitimate. ’ ’ That section in substantially its present form has been in force since 1831. See R. S. 1831 p. 208; R. S. 1843 p. 438; R. S. 1852 p. 249. Under that and similar statutes the status of the child is changed from illegitimacy-to legitimacy. Harness v. Harness, supra; Haddon v. Crawford (1912), 49 Ind. App. 551, 97 N. E. 811; Brock v. State, ex rel. (1882), 85 Ind. 397; Bailey v. Boyd (1877), 59 Ind. 292; Harvey v. Ball (1869), 32 Ind. 98; Latshaw v. State, ex rel. (1901), 156 Ind. 194, 199, 59 N. E. 471; Binns v. Dazey (1897), 147 Ind. 536, 44 N. E. 644; Blythe v. Ayres (1892), 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40; Ives v. McNicholl (1898), 59 Ohio St. 402, 53 N. E. 60, 43 L. R. A. 772, 69 Am. St. 780; Leonard v. Braswell (1896), 99 Ky. 528, 36 S. W. 684, 36 L. R. A. 707; Adams v. Adams (1891), 154 Mass. 290, 28 N. E. 260, 13 L. R. A. 275, and note; 3 R. C. L. 740, 774;
. As we have indicated, the predecessor of §3000, supra, was enacted in 1853. The latter section in 1901 (Acts 1901 p. 288). At each of these times §2998, supra, was in force, it having been enacted in 1852. A similar statute had been in force for many years (see R. S. 1831 p. 208). We have hereinbefore set out §2998. Under such statute it is held that an illegitimate inherits not only from, but through, the mother. Parks v. Kimes (1885), 100 Ind. 148; Croan v. Phelps (1893), 23 L. R. A. 753, note, subject, how*
Judgment is affirmed.