Burris v. Burgett

• Decision Date: 16 November 1927
• Citation: 139 A. 454,16 Del.Ch. 10
• Court: Court of Chancery of Delaware
• Parties: MARTIN B. BURRIS, Administrator of the Estate of Joshua Blackson, deceased, v. RACHEL BURGETT, MARY MARTIN, ANDREW COLLINS, CLARA COLLINS, OSCAR COLLINS, CORA HENRY, MAY BETTS, BENJAMIN F. BLACKSON, HELEN BLACKSON and SUSAN BLACKSON

139 A. 454

16 Del.Ch. 10

MARTIN B. BURRIS, Administrator of the Estate of Joshua Blackson, deceased, v. RACHEL BURGETT, MARY MARTIN, ANDREW COLLINS, CLARA COLLINS, OSCAR COLLINS, CORA HENRY, MAY BETTS, BENJAMIN F. BLACKSON, HELEN BLACKSON and SUSAN BLACKSON

Court of Chancery of Delaware, New Castle

November 16, 1927

BILL FOR INSTRUCTIONS. Joshua Blackson died January 5, 1923 intestate. He had a sister, Rachel Blackson, who predeceased him, leaving to survive her and him the following lawful children: Rachel Burgett, Mary Martin, Andrew Collins, Clara Collins, Oscar Collins, and Cora Henry, defendants in this suit. The said Rachel Blackson also left to survive her and her brother, the said Joshua Blackson, an illegitimate child of a deceased daughter, one of the defendants in this suit.

The intestate had a daughter who predeceased him, leaving three illegitimate children, now living, who are made defendants herein.

The bill presents the question of whether the illegitimate children of the deceased daughter should receive the fund held by the administrator of the intestate as issue of his deceased child to the exclusion of the intestate's nieces and nephews, children of his deceased sister, or whether the latter should take to the exclusion of the illegitimate grandchildren, and if so whether the illegitimate child of the deceased niece, daughter of said deceased sister, should take the share her mother, as niece, would have taken if living.

Martin B. Burris, for complainant.

James R. Morford, of the firm of Marvel, Layton & Morford, for lawful children of Rachel Blackson.

OPINION

THE CHANCELLOR

If the illegitimate children of the intestate's daughter, who predeceased him, are entitled to the residue as distributees under the statutes of this State to any extent, they are entitled to all of it, and the collateral kin, the nephews and nieces, are entitled to none.

At common law a bastard was "treated as nullius filius, and as such incapable of inheriting from either the putative father or the mother, and without heirs excepting those of his own body." 7 C. J. 959. This rule was taken over as a part of the body of common law prevailing in this jurisdiction and is recognized by our statutes governing generally the law of descent and distribution in the use of the word "lawful" as a modifier of "issue" whenever the same is spoken of.

The rigor of the rule which has often been spoken of as a harsh one, was first mitigated in this State by allowing the mother of an illegitimate child, in the absence of lawful issue, to inherit both its real and personal property in case of intestacy. Section 3087, Revised Code 1915.

Another mitigation of the rule was adopted in 1917 (29 Del. Laws, c. 229), when the Legislature amended said Section 3087 by adding thereto a provision regulating descent from the mother of illegitimate persons. That provision is as follows:

"When the mother of an illegitimate-born child dies intestate, her property, real and personal, if any there be, shall pass and belong in equal shares to such illegitimate-born child or children, and to the lawful issue of such who may have died by right of representation.

"If there be no such issue, then said property shall go to the heirs at law of such deceased mother, subject always to the payment of her just debts and all lawful demands against her estate."

At the next session of the Legislature in 1919 (30 Del. Laws c. 200) the enactment of 1917 was repealed and in lieu thereof the following was substituted:

"When the mother of an illegitimate child or children dies intestate, such illegitimate child or children, or the issue of such who may be dead, shall share in her real and personal estate, in the same manner as legitimate children or their issue."

It is this act of 1919 to which the illegitimate children of the intestate's deceased daughter must look for any rights they may have to receive the residue now held for distribution by the complainant. The act is one in derogation of the common law. As a general rule such acts are to be construed strictly. Garrett & Smyth v. Bailey, 4 Del. 197, 4 Harr. 197; Plotkin v. Plotkin, et al., 32 Del. 455, 2 W. W. Harr. 455, 125 A. 455. The act in question, however, is also a remedial one, and being such the doctrine of strict construction applicable to statutes in derogation of the common law is not so rigidly applied by the courts. Valentine v. Tantum, 12 Del. 402, 7 Houst. 402, 32 A. 531. But indulgence in favor of a relaxation in applying the doctrine of strict construction to remedial statutes in derogation of the common law, should never go so far as to oust the language of the statute from its connection or give to it an imaginary meaning so as to make it subserve the ends of free interpretation, as said by the court in Valentine v. Tantum, supra, or, as said by the court in Forbes v. Thompson, 18 Del. 530, 2 Penne. 530, 47 A. 1015, so as to alter the common law any further than is necessary to remove the mischief legislated against.

The principles of construction thus laid down by the courts in this State are I believe accepted likewise in all American jurisdictions. With these principles in mind what is the meaning of the statute in question when applied to the situation of the illegitimate children of the deceased daughter of this intestate? The statute of 1919 is perfectly plain in its language. It admits the illegitimate children...