Allen v. Ramsey's Heirs
| Decision Date | 08 February 1859 |
| Citation | 58 Ky. 635 |
| Parties | Allen v. Ramsey's Heirs. |
| Court | Kentucky Court of Appeals |
APPEAL FROM UNION EQUITY AND CRIMINAL COURT.
1. Section 5 of chap. 30 of the Revised Statutes (p. 280), made no change of the law in respect to the inheritable rights of bastards, as it previously existed under section 18 of the act of 1796 (1 Statute Law, 565), and the act of 1840 (3 Statute Law, 211).
2. A bastard, whose mother, if alive, would have been a collateral heir of her brother (her death occurring prior to his), can not take by inheritance from him.
3. Where a law antecedently to a revision of the statutes has been settled by judicial construction, such construction should be given to the regulation on the same subject in the revision, unless there is a manifest intention of the legislature that a different one should prevail. (4 Johnson 359; Overfield v. Sutton, 58 Ky. 621.)
The facts appear in the opinion of the court.
James Harlan, for appellant.
Whether appellant be the legitimate son of Nancy Allen, or a bastard he is entitled, through his mother, to a share in Ramsey's estate. (Rev. Stat., sec. 5, p. 280; sec. 18 Act of 1796, 1 Stat. Law, 565; Act of 1840, 3 Stat. Law 211.) The question of his legitimacy can not be urged against him when he is claiming property under and through his mother. He stands relieved from any disability when thus claiming.
Geo. Huston, for appellees.
The appellant, being a bastard, can not inherit from his mother's brother. (Rev. Stat., sec. 5, p. 280; 8 B Mon., 606.) The acts of 1796 and 1840 are similar to the Revised Statutes upon this subject.
Charles Ramsey died in Union county in 1854, seized of a considerable estate in land and slaves, but leaving neither wife nor children.
This action was brought by the children of his deceased brothers, William and Alexander Ramsey--claiming to be his sole heirs-at-law--for a sale and distribution of his estate.
Pending the action, John Allen, the appellant, came in by petition, and asserted claim to a distributable share of the estate as one of the children of Nancy Allen, deceased, formerly Nancy Ramsey, sister of Charles Ramsey, who, it seems, had departed this life some years before her brother.
The other heirs avowed a willingness that he should have his share of the estate if he was legally entitled; but said they had no knowledge or information that he was an heir, and demanded proof thereof.
The evidence adduced in support of his claim, established beyond doubt that he was a son of Nancy Ramsey, a sister of Charles Ramsey, but also, as clearly, that he and his brothers and sisters were all bastards--not being born in wedlock. Upon this state of fact the circuit court dismissed him with costs; and of that judgment he complains.
The case turns upon the effect to be given to the 5th section of chap. 30 of the Revised Statutes (p. 280), which reads as follows: " 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."
This section embodies substantially the provisions of section 18 of the act of 1796 (1 Stat. Law, 565), and of the act of 1840, (3 Stat. Law, 211), relating to the same subject. It unites both in one, but makes no change in either.
The act of 1796 declares that " 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." And that of 1840 declares " that the mother shall be, and is hereby, rendered capable to inherit and take by descent of distribution 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."
The claim here is based upon the ground that the appellant, though a bastard, inherits from his mother's brother, through, or, as the statute has it, " on the part of" his mother. Or, in other words, that inasmuch as his mother, if alive at the death of her brother, would have taken, he, by virtue of the statute, takes " on her part" as though born in wedlock.
It is obvious from the phraseology of the section under consideration, as has been stated, that the revivors made no change in the law in respect to the inheritable...
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