Commonwealth v. Mackey

• Decision Date: 04 January 1909
• Docket Number: 65
• Citation: 222 Pa. 613,72 A. 250
• Parties: Commonwealth, Appellant, v. Mackey
• Court: Pennsylvania Supreme Court

72 A. 250

222 Pa. 613

Commonwealth, Appellant, v. Mackey

No. 65

Supreme Court of Pennsylvania

January 4, 1909

Argued October 14, 1908

Appeal, No. 65, Oct. T., 1908, by defendant, from judgment of C.P. Butler Co., March T., 1908, No. 226, on case stated in suit of Commonwealth v. E. Mackey. Affirmed.

Case stated to determine liability for collateral inheritance tax. Before GALBREATH, P.J.

The opinion of the Supreme Court states the case.

The court entered judgment in favor of the defendant.

Error assigned was in entering judgment for defendant on the case stated.

Judgment affirmed.

Thomas H. Greer, with him John B. Greer and John M. Greer, for appellant. -- He who is allowed to take for nothing a portion of a dead man's estate, shall not be heard to complain simply that he is not given it all: Mixter's Estate, 28 W.N.C. 182; Com. v. Gilpin, 3 Pa. Dist. Rep. 711; Finnen's Est., 196 Pa. 72.

Bastards therefore, not being entitled under the common law to any inheritance, they are restricted to such provisions as the legislature has seen fit to make: Kennedy's Est., 27 W.N.C. 254; Grubb's App., 58 Pa. 55; Woltemate's App., 86 Pa. 219; Physick's Est., 2 Brewster, 179; Galbraith v. Com., 14 Pa. 258; Com. v. Stump, 53 Pa. 132; Com. v. Fergeson, 137 Pa. 595.

W. D. Brandon, with him A. E. Reiber, for appellee. -- Appellee contends that this case falls within the provisions of the act of July 10, 1901, under which it is claimed he is entitled to the exemption, and the estate devised to him by his mother, is free from collateral inheritance tax under the provisions of said act: Killam v. Killam, 39 Pa. 120; Com. v. Ferguson, 137 Pa. 595; Com. v. Stump, 53 Pa. 132; Gilmore's Est., 31 P.L.J. 113; Com. v. Henderson, 172 Pa. 135.

Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, POTTER, ELKIN and STEWART, JJ.

OPINION

MR. JUSTICE BROWN:

Sarah Mackey died June 4, 1902, the owner of real estate which she devised to the appellee, her natural son. The commonwealth's claim to collateral inheritance tax upon this devise is based upon the Act of May 6, 1887, P.L. 79, which imposes such tax upon all estates passing under the intestate laws or by devise to any person or persons "other than to or for the use of father, mother, husband, wife, children and lineal descendants born in lawful wedlock, or the wife, or widow of the son of the person dying seized or possessed thereof." The appellee was not born in lawful wedlock, and but for subsequent legislation removing from him the taint of illegitimacy as to his mother, the commonwealth would take from her devise to him, as from one to a stranger to her blood, the tax imposed by the statute.

A child born out of lawful wedlock may not know its father, but always knows its mother, and instead of the harsh rule of the common law, denying it the right to inherit, and recognizing only such rights as it can acquire, our statutes have humanely given it inheritable blood from the mother. For more than fifty years an illegitimate child and its mother have had capacity to take or inherit from each other. Recent legislation has gone still farther, and, by the Act of July 10, 1901, P.L. 639, entitled: "An act to regulate and define the legal relations of an illegitimate child, or children, its or their heirs, with each other and the mother and her heirs," it is provided that illegitimate children shall take and be known by the name of their mother and the common-law doctrine of nullius filius shall not apply as between the mother and her illegitimate child or children; that the mother and her heirs, and her illegitimate child and its heirs, shall be mutually liable one to the other, and shall enjoy all the rights and privileges one to the other, in the same manner and to the same extent as if the said child or children had been born in lawful wedlock; that the mother of an illegitimate child, her heirs and legal representatives, and said illegitimate child or children, its or their heirs and legal representatives, shall have capacity to take or inherit from or through each other personal estate, as next of kin, and real estate as heirs in fee simple, or otherwise, under the intestate laws of this commonwealth in the same manner and to the same extent, subject to the distinction of half-bloods, as if said child or children had been born in lawful wedlock; and the expressed intention of the legislature is to legitimate an illegitimate child and its heirs as to its mother and her heirs.

One of the rights of a child born in lawful wedlock is to inherit property from its mother or to take a bequest or devise from her free from any collateral inheritance tax, and all the rights and privileges of such a child are expressly given by the act of 1901 to a child whose mother was never wedded to its father. Not only are all the rights and privileges of a child born in lawful wedlock conferred upon an illegitimate child, as between it and its mother, but these rights and privileges are to be enjoyed "in the same manner and to the same extent, as if the illegitimate child had been born in lawful wedlock." If from the devise to this appellee the commonwealth may take five per cent. of its appraised value, will he take it...