Berry v. Powell

• Decision Date: 30 October 1907
• Citation: 104 S.W. 1044
• Parties: BERRY v. POWELL et al.
• Court: Texas Supreme Court

104 S.W. 1044

BERRY v. POWELL et al.

Supreme Court of Texas.

October 30, 1907.

Certified Question from Court of Civil Appeals of Fifth Supreme Judicial District.

Action between Emily Berry and D. W. Powell and others. From the judgment, Berry appealed to the Court of Civil Appeals, and that court certifies a question. Question answered.

T. P. Young and Albert W. Webb, for appellant. S. P. Jones, for appellees.

GAINES, C. J.

This is a certified question. The certificate discloses that in the suit the title to a one-half interest in a tract of land is involved, and that the title depended upon the question whether Emily Berry could inherit from her brother, James McCulloch; both being illegitimate. The question is propounded in the following form: "Can an illegitimate sister inherit from an illegitimate brother, both being of the same mother, under the laws of Texas?"

The first act by our Legislature in reference to the power of inheritance by illegitimate person is found in the act of Congress, approved January 18, 1840, the sixteenth section of which reads as follows: "Bastards shall be capable of inheriting or of transmitting inheritance on part of their mother, and shall also be entitled to a distributive share of the personal estate of any of their kindred on the part of their mother, in like manner as if they had been lawfully begotten of such mother." Hart. Dig. p. 218. This statute, with a slight modification and a slight addition, is taken from a statute of Virginia, which reads as follows: "Bastards also shall be capable of inheriting or of transmitting inheritance on the part of their mother, in like manner as if they had been lawfully begotten of such mother." In 1837 the Virginia act came up for construction in the case of Garland v. Harrison, 8 Leigh, 368. It was there held that under the act an illegitimate brother could inherit from another illegitimate brother by the same mother. The case was a very notable one for the reason that the question had previously been before the Supreme Court of the United States in another case and had been decided differently. But the Supreme Court of Virginia declined to follow the Supreme Court of the United States. Now, if we apply the rule that, when a statute is adopted from another state, it is presumed to be adopted with the construction put upon it by the courts of that state, it will be conclusive of the question. The decision of the Supreme Court of Virginia was made in 1837, and an act was passed by the Congress of Texas in 1840. The only difference in the two enactments is that the Texas statute contains the clause, "and shall also be entitled to a distributive share of the personal estate of any of their kindred on the part of their mother." This was evidently inserted for the reason that they had just adopted the common law, and it was doubtless considered that, since under that system there were no heirs of personal property, it was proper to insert the provision so that illegitimate children could take as distributees of such property. But in 1848 the Legislature amended the statute of "descent and distribution," and so changed the provision in question so as thereafter to read as follows: "Bastards shall be capable of inheriting from and through their mothers, and of transmitting estates, and shall also be entitled to distributive shares of the personal estates of any of their kindred, on the part of their mothers, in like manner as if they had been lawfully begotten of such mothers." Now, from the opinions in the case of Garland v. Harrison—there were three of them, all reaching the same conclusion—it seems to us that the principal difficulty in the minds of the judges was to hold that the words "capable of inheritance or of transmitting inheritance on part of their mother, in like manner as if they had been lawfully begotten of such mother," contemplated an inheritance from one illegitimate brother to another, and in ascertaining that it meant the same thing as if it had said, "or through the mother." They concluded that it meant the same thing as if the statute had used the words, "or through their mothers." So it seems to us that it was in order to obviate this difficulty of construction that our Legislature, in 1848, inserted the words, "or through their mothers," in the act of that year, which is our existing law upon the subject.

Besides, before the decision in Garland v. Harrison, supra, the same question had arisen in the Supreme Court of the United States in the case referred to above of ...