Drake v. Drake
| Decision Date | 31 December 1833 |
| Citation | 15 N.C. 110 |
| Court | North Carolina Supreme Court |
| Parties | HINES DRAKE and others v. HENRY DRAKE and others. |
Where a putative father of a bastard procured the passing of a private Act of Assembly, whereby the name of the latter was changed to that of the former, and he was declared "forever hereafter to be legitimated and made capable to possess, inherit and enjoy by descent, etc., any estate, real or personal, to all intents and purposes, as if he had been born in lawful wedlock": it was held that as the bastard was not made legitimate to any particular person, the only effect of the act was to change his name.
EJECTMENT tried on the Fall Circuit of 1830, before Daniel, J., at EDGECOMBE.
By consent, a verdict was taken for the plaintiff subject to the opinion of his Honor on the following case:
William Drake being seized in fee of the premises in dispute, in February, 1827, duly made and published his last will and testament, and therein devised as follows: "Igive and bequeath to my beloved son Levi Drake, the son of Eleanor Edwards, deceased, all my estate both real and personal, to him and his heirs forever," and died in the same year without altering or revoking it. Levi Drake upon the death of the devisor entered upon the premises, and was seized thereof, and being so seized died in 1829, without issue, and without brother or sister, or the issue of such except so far as is hereinafter mentioned. Levi Drake was the bastard child of Eleanor Edwards, and originally bore the name of Levi Edwards.
At the session of the General Assembly, begun in November, 1802, the following act was passed:
AN ACT TO ALTER THE NAMES OF THE PERSONS THEREIN MENTIONED, AND TO LEGITIMATE THEM.
It was admitted that the name of Levi Edwards was inserted in that act at the instance of William Drake, the testator, but
this admission was subject to an objection as to the competency of parol evidence in any way to affect its construction. After the passing of the act, Levi Edwards bore the name of Levi Drake, and was recognized by the testator "William as his son. Before the passing of the above recited act, Eleanor Edwards, the mother of Levi Drake mentioned therein, had borne three other children, also born out of wedlock; of these one was the wife of one of the defendants; another was the wife ofthe defendant Drake and was dead, leaving issue, and the third was dead without issue. Eleanor Edwards died before her son Levi, leaving no other issue except those above mentioned and without having ever been married. She left surviving her, brothers and sisters who are still alive.
William Drake, the testator, was never married. The lessors of the plaintiff were his brothers and sisters, and if Levi Drake had been born to William in wedlock, they would have been his nearest collateral relation on the part of his father.
If upon these facts his Honor should be of opinion that the lessors of the plaintiff were the heirs at law of Levi Drake, then the verdict was to stand and judgment to be entered accordingly, otherwise it was to be set aside and a nonsuit entered.
His Honor delivered his opinion as follows: "Levi Edwards before the Legislature passed the private act of 1802, could not have inherited from any of the legitimate brothers and sisters, which he might have had on his mother's side. It was possible for his mother to have been lawfully married and to have had issue by that marriage. Neither could he have inherited from any of the brothers or sisters of his mother, or from any of the more remote collateral relations of his mother, nor could the aforesaid collateral relations have inherited by any possibility, from him. The cases supposed are not within the act of Assembly of 1799. I think without any very forced construction, the private act of 1802, although badly penned, and the meaning imperfectly expressed, placed Levi Edwards (afterwards, Levi Drake) in the same situation of a child who had been born in lawful wedlock, so far as relates to the blood relations of his mother. But I cannot discover from the act of 1802, that if William Drake had died intestate, that Levi Drake would have been his heir at law; the Legislature must declare him such a person as could inherit the estate of Wm. Drake, by such words that the Court could so reasonably understand or infer it from the private act of 1802 itself, viz.: that he was made capable of succeeding to the estate of Wm. Drake by descent. Proof aliunde, from the act of Assembly itself,
cannot not be admitted to show what the Legislature meant. If Levi Drake was the only child and heir at law of Wm. Drake, he would take this land by descent; for it is a ruleof law founded upon feudal principles, I admit, but still it is a rule of law in this State, that when the same land and the same estate, if it would come to the devisees by descent, if no will had been made, then the making of a will devising the land, will not make the taker a purchaser of the estate; the law declares that he shall take by descent. The lessors of the plaintiff must recover by the strength of their own title, possession is sufficient for the defendants until the lessors can show a better title. If Levi Drake had have died seized and possessed of land, could Wm. Drake, if he had been alive, have succeeded to the land for life, as his, Levi's father, by the rule or canon in the act of 1808? To have ascertained or decided this question, we would be referred to the private act of 1802. In looking to that act, no reasonable inference could be drawn, that the Legislature intended to make Levi Drake the legitimate son and heir of Wm. Drake, therefore he would not have succeeded to the land of Levi Drake, had the latter died leaving Wm. Drake alive; neither can the lessors of the plaintiffs, because they claim by descent, and claim through and by the blood of Wm. Drake. I say nothing of the maternal relations of Levi Drake, they are not before the Court. At common law, he was filius nullius, and had no inheritable blood in him. By the act of 1799, he was, while illegitimate, capable of inheriting in a few express and enumerated cases; by the private act of 1802, the lessors of the plaintiff alleged that he was changed from a bastard to a legitimate person, having all the heritable blood of a person born in lawful wedlock. The question then is, "heritable blood" to whom? Look into the act, and you cannot discover it is for or to Wm. Drake, and his blood relations; this fact cannot be averred and proved by anything but the act of the Legislature itself; that does not prove it I think; and the lessors of the plaintiff who are brothers andsisters of Wm. Drake deceased, are not the heirs at law of Levi Drake, they cannot recover. Let judgment of nonsuit be entered. It may be contended, that as the ascertainment of the fact that A is heir at law of B, depends upon such proof as satisfies the mind of a jury, so in this case the declarations of Wm. Drake, that Levi Drake was his son is sufficient to constitute the latter son and heir at law of him forever; and e converso, Wm. Drake the father, capable of taking a life estate in the land of Levi, had he died before William, without issue, or lawful brothers or, sisters, or the issue of
such, and also to have enabled the lessors of the plaintiff to support their title in the present case as heirs at law, taking by descent the land which belong to Levi Drake. Here is the great question, could Wm. Drake, if he was alive, claiming the landed estate of Levi be permitted to come into Court, and prove dehors the act of 1802, that he was the father of the quandam bastard, Levi Edwards ? I think he could not be heard to make such proof. And, as he could not, I think the lessors of the plaintiff who claim through him, cannot be permitted to do so; and if they could, the bare recognition of Levi by William, as his son, is not sufficient evidence of itself, to enable the lessors of the plaintiff to take the lands of Levi by descent.
Judgment being entered accordingly, the plaintiff...
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