Morrow v. Morrow

• Decision Date: 10 October 1919
• Docket Number: No. 12671.,12671.
• Citation: 289 Ill. 135,124 N.E. 386
• Parties: MORROW et al. v. MORROW et al.
• Court: Illinois Supreme Court

289 Ill. 135

124 N.E. 386

MORROW et al.

v.MORROW et al.

No. 12671.

Supreme Court of Illinois.

June 18, 1919.

Rehearing Denied Oct. 10, 1919.

Error to Circuit Court, Ford County; T. M. Harris, Judge.

Bill by Harry B. Morrow and others against Sarah A. Morrow and others. On demurrer of Russell A. Campbell, the bill was dismissed, as was a cross-bill filed by Eugene L. Morrow, and complainants bring error. Reversed and remanded, with directions.

Phillips & Middleton, of Gibson City, for plaintiff in error Harry B. morrow.

A. L. Phillips, of Gibson City, guardian ad litem, for infant plaintiffs in error.

Cloud & Thompson, of Paxton, for defendants in error Campbell and William E. Morrow.

THOMPSON, J.

This writ of error is sued out to reverse a decree of the circuit court of Ford county sustaining a demurrer interposed by Russell A. Campbell, one of the defendants in error, and dismissing the bill for partition filed by Harry B. Morrow, one of the plaintiffs in error, for want of equity. The bill alleges, among other things, that Ollie B. Campbell died seized in fee simple of an undivided three-fourths interest in certain real estate, described as lots 1 and 2 and the east half of lot 3, in block D, in Pell's addition to the city of Paxton, Ford county, Ill., the other undivided one-fourth interest being in Russell A. Campbell, one of the defendants in error; that Ollie B. Campbell departed this life intestate on October 28, 1917, leaving no husband her surviving, but leaving her surviving the following named persons: Sarah A. Morrow, her mother; Eugene L. Morrow and William E. Morrow, her brothers; Harry B. Morrow, her half-brother, being a child of Sarah A. Morrow, born out of lawful wedlock; Clarence Olson and Glenn Olson, her nephews, and Merle L. Singleton, a niece, the last three named being children of her half-sister, Gertie Olson, deceased, said Gertie Olson being also a daughter of Sarah A. Morrow born out of lawful wedlock. The bill further alleges that Ollie B. Campbell's estate is in course of administration in the county court of Ford county and that S. Ludlow is administrator of said estate. The bill then sets forth the respective interests of each of the parties, as follows: Russell A. Campbell and Sarah A. Morrow each a one-fourth interest; Eugene L. Morrow, William E. Morrow, and Harry B. Morrow each a one-eighth interest; Clarence Olson, Glenn Olson, and Merle L. Singleton each a one twenty-fourth interest-and prays partition. Eugene L. Morrow appeared by his solicitor and answered the bill, to which answer Harry B. Morrow filed exceptions. Thereafter Eugene L. Morrow filed a cross-bill. But there is nothing in these pleadings that affects the issues raised by this writ of error, and so there is no necessity of further considering them here. Russell A. Campbell filed a general demurrer to the original bill filed by Harry B. Morrow. The chancellor sustained the demurrer of Russell A. Campbell, and dismissed the bill for want of equity, and also dismissed the cross-bill. The assignment of errors questions the action of the chancellor in sustaining the demurrer of Russell A. Campbell to the original bill, and dismissing the original bill for want of equity.

The sole question raised by the demurrer was that the interests of the parties were not properly set out in the bill, because Harry B. Morrow, the complainant, and Gertie Olson, the mother of the infant defendants, were illegitimates, and could not inherit from their half-sister while the mother was living. Ollie B. Campbell, Eugene L. Morrow, and William E. Morrow were the legitimate children of Sarah A. Morrow now living. Harry B. Morrow and Gertie Olson were the illegitimate children of Sarah A. Morrow. Gertie Olson died prior to the death of Ollie B. Campbell, leaving her surviving her minor children, Clarence Olson, Glenn Olson, and Merle L. Singleton, who are now living. The question now resolves itself into whether Harry B. Morrow, Clarence Olson, Glenn Olson, and Merle L. Singleton did inherit from Ollie B. Campbell.

The identical question presented by this record has not, so far as we are aware, been before this court for decision. Cases have arisen where the statute in question has been construed, but the facts in those cases were not identical with the instant case. Briefly stated, Ollie B. Campbell died leaving no surviving husband, nor child, nor descendant of any deceased child; but she left, surviving her, her mother, Sarah A. Morrow, and her brothers, Eugene L. Morrow and William E. Morrow. She also left surviving her a half-brother, Harry B. Morrow (who was the illegitimate son of Sarah A. Morrow), and Clarence Olson, Glenn Olson, and Merle L. Singleton, children of a half-sister, Gertie Olson, deceased, said Gertie Olson being also an illegitimate daughter of Sarah A. Morrow.

Whatever rights, if any, plaintiffs in error have in the real estate of Ollie B. Campbell, must be by virtue of section 2 of the statute of descent. Hudnall v. Ham, 183 Ill. 486, 56 N. E. 172,48 L. R. A. 557, 75 Am. St. Rep. 124. That section provides:

‘An illegitimate child shall be heir of its mother and any maternal ancestor, and of any person from whom its mother might have inherited, if living; and the lawful issue of an illegitimate person shall represent such person, and take, by descent, any estate which the parent would have taken, if living.’ Hurd's Stat. 1917, p. 1073.

Under the common law, which we adopted by statute, an illegitimate had no inheritable blood; he was kin to no one; he was filius nullius. This common-law rule with reference to illegitimates remained the law of this state until 1845, when the Legislature abrogated the common-law rule and provided that an illegitimate might inherit from its mother. Various other acts were enacted by subsequent Legislatures, extending the rights of illegitimates, until 1872, when the present statute of descent was passed. While, as counsel for the defendants in error contend, the statute conferring rights upon illegitimates is in derogation of the common law, still the tendency of the legislation in this state upon this subject shows an intention upon the part of the Legislature to remove the rigors of the common law and to establish a rule of descent with reference to illegitimates consonant with the finer sense of justice and right, and not to visit the sins of the parents upon the unoffending off-spring. In Bales v. Elder, 118 Ill. 436, 11 N. E. 421, we reviewed the various acts with reference to illegitimates, and in discussing that statute we said:

‘It makes him an heir, and, as such, he is vested with all the rights, powers and privileges of a legitimate person who may be an heir standing in the same degree of relationship. An heir is one who, after his ancestor's death, has a right to inherit the intestate...