Sutton v. Sutton

• Citation: 87 Ky. 216,8 S.W. 337
• Parties: SUTTON et al. v. SUTTON et al.
• Decision Date: 13 May 1888
• Court: Kentucky Court of Appeals

8 S.W. 337

87 Ky. 216

SUTTON et al. v. SUTTON et al.

Court of Appeals of Kentucky.

May 13, 1888

Appeal from circuit court, Henderson county.

John Young Brown, Thos. E. Ward, and Edward W. Hines, for appellants.

Yeaman & Lockett, S. B. & R. D. Vance, Cissell & Dudley, and John T Handley, for appellees.

HOLT J.

This appeal presents but one question: Can the legitimate children of a bastard inherit from the bastard brother of their parent who dies after the death of such parent? At the common law a bastard is nullius filius. Blackstone says that he is of kin to no one, derives no inheritable blood from any one, and can therefore neither be heir to any one, or have heirs save of his own body. It was provided, however, by our statute of descents, in 1796: "Bastards, also, shall be capable of inheriting or transmitting inheritance on the part of their mother, in like manner as if they had been lawfully begotten of such mother." 1 More. & B. St. 565. This was the first innovation upon the common-law rule in this state. It was copied verbatim from the Virginia statute of 1785; and in the case of Stevenson's Heirs v. Sullivant, 5 Wheat. 207, where bastards claimed to inherit from a legitimate brother, the supreme court of the United States construed it as meaning only that bastards "shall have a capacity to take real property by descent immediately or through their mother in the ascending line, and transmit the same to their line as descendants, in like manner as if they were legitimate." This court considered it, in 1834, in the case of Scroggin v. Allan, 2 Dana, 363. Henry Edgar, a bastard, died, leaving a legitimate child, to whom his land descended, but who died in infancy. The mother of the bastard was also dead; and the question was whether his legitimate brothers and sisters, or his wife, took the estate. This court followed the supreme court, holding that the statute only permitted the bastard to inherit from the mother, and transmit an inheritance to his own issue; and while, to this extent, quasi legitimate, yet in all other respects he was a bastard, the mother being unable to take from him and he being in law without father, brothers, or sisters. Thus the law remained until 1840, when another change was made. The act then passed provides "that the mother shall be, and is hereby rendered, capable to inherit and take by descent or distribution as heir or distributee of her bastard child; and brothers and sisters of the same mother born out of wedlock, shall be capable to inherit and take by descent or distribution from each other, as though born in wedlock, and as brothers and sisters of the whole blood." Lough. Dig.211. In Remmington v. Lewis, 8 B. Mon. 606, (1848,) it was said that the statute as thus amended permitted the mother to inherit from her illegitimate child, and her illegitimate children from each other; but the question there was whether the legitimate brother of the bastard, or the latter's wife should take, and it was held that it did not operate to establish a right either in the illegimate children to inherit from the legitimate, or in the legitimate to take from the illegitimate. The bastard, under this construction, has, under the law of descent, no brothers or sisters, save the illegitimate children of the same mother. The acts of 1796 and 1840 were, in substance, incorporated into the Revised Statutes, (1852,) and also into the present General Statutes, (1873.) The provision is the same verbatim in each, and reads thus: "Bastards shall be capable of inheriting and transmitting an inheritance on the part of or to the mother, and bastards of the same mother shall be capable of inheriting and transmitting an inheritance on the part of each other, as if such bastards were born in lawful wedlock of the same parents." It was said in Allen v. Ramsey's Heirs, 1 Metc. (Ky.) 635, (1858,) that this statute embraces all the provisions of both the act of 1796 and that of 1840, so far as they relate to bastards; but the question in this case was whether a bastard (his mother being dead) could take as the heir of the mother's brother, and the claim was rejected. In Berry v. Owens' Heirs, 5 Bush, 452, O. survived his sister, and her only child, an illegitimate daughter. It was decided that B., the son of the illegitimate daughter, could not inherit from O., who died intestate,...