Sams, &C., v. Sams' Administrator

• Decision Date: 19 March 1887
• Citation: 85 Ky. 396
• Court: Kentucky Court of Appeals
• Parties: Sams, &c., v. Sams' Administrator.

85 Ky. 396

Sams, &c., v. Sams' Administrator.

Court of Appeals of Kentucky.

March 19, 1887.

APPEAL FROM ESTILL CIRCUIT COURT.

C. F. AND A. R. BURNAM AND WHITE FOR APPELLANTS.

SAME COUNSEL FILED PETITION FOR REHEARING, WHICH WAS OVERRULED.

RIDDELL & FLUTY.

CHIEF JUSTICE PRYOR DELIVERED THE OPINION OF THE COURT.

Leroy Sams died in the county of Estill in the year 1885, intestate, leaving surviving him his widow, Ann Sams, who was his second wife, and four children by his first marriage. He owned land of considerable value, and personal estate valued at twenty-five or thirty thousand dollars. His last wife, at the time of their marriage, was the mother of seven children, all of whom were born out of lawful wedlock, she never having married until her marriage with the intestate. Fannie and Nancy, two of these illegitimate children, asserted a claim to an equal interest in the estate with the children by the first wife, upon the ground that they were the children of the intestate, and were so recognized by him during his lifetime, and that the marriage consummated between him and their mother rendered them legitimate under the statute, and entitled them to share in the distribution of his personalty and in the division of his land. The statute provides, "if a man having had a child by a woman shall afterwards marry her, such child, or its descendants, if recognized by him before or after marriage, shall be deemed legitimate."

This action was instituted in the court below by the administrator of the estate and the children of the first wife, against the widow and the two children who are claiming to be heirs of the intestate, for the purpose of having distribution and determining the right of these children to an interest in the estate.

The widow seems to have made a contract with the administrator and heirs by which she agreed to take one seventh of the personalty as her full interest in the distribution; that, upon a proper state of pleading, was set aside, and the widow left to take such an interest in the personal and real estate as she was entitled to under the law of descent and distribution. Her rights as widow, however, are not here involved. The chancellor adjudged that the two children, Fannie and Nancy, were not entitled to any part of the estate, and that question is the only one presented. It appears that these two children were born, the one about eight, and the other some ten years prior to the death of intestate's first wife. They were recognized by the intestate as his children during the life of the first wife, and always after her death. The name of Fannie Ann Green, one of the children, was changed, by an order of the Estill county court, to Fannie Ann Sams, the record reciting, that Leroy Sams, the father of the child, consents to the same. It is also shown that the intestate, on his death-bed, expressed a wish that each of the two children should inherit from him as much of his estate as any one of his children by his first wife. Their mother states that the intestate was the father of the two girls and the fact of the recognition by him of them as his children is clearly established, and their right to inherit from the intestate must depend upon the construction given the statute by virtue of which it is maintained they are legitimate.

It is insisted by counsel for the appellants that the meaning and intention of the statute is so plain that but one interpretation can be given it; and although the children were begotten by the intestate when he was the lawful husband of another, his adulterous practices with an unchaste woman, and unfaithfulness to his own wife and children, cannot be considered in determining the rights of those who were not participants in the wrong, and whose rights the statute was enacted to protect.

If the case before us, or that class of cases where the husband has...