Eddie v. Eddie

Decision Date12 May 1899
Citation79 N.W. 856,8 N.D. 376
CourtNorth Dakota Supreme Court

Appeal from District Court, Grand Forks County; Fisk, J.

Action by Henrick Ferdinand Eddie and Axel Eddie against Nickolai Eddie and others. Judgment for plaintiffs. Defendants appeal.

Reversed.

Reversed.

J. A Sorley, for appellants.

The plaintiffs are the illegitimate children of decedent, born in the Kingdom of Norway, where they still reside, all acts of recognition by which it is claimed they became legitimated took place in Norway. In the absence of proof it will be presumed that the common law prevails there. Starr v Peck, 1 Hill, 270; Throop v. Hutch, 3 Abb. Pr 23; Abell v. Douglas, 4 Denio. 305; Holmes v. Boughton, 10 Wend. 75; Harvey v. Ball, 32 Ind. 98. A person acts with reference to the law of his domicile. Under the common law an illegitimate child was incapable of becoming legitimaized. Inheritance is governed by the lex rei sitae but legitimacy is to be ascertain by the lex domicilii. Ross v. Ross, 129 Mass. 243; Blythe v. Ayers, 31 P. 915; In re Grove, 40 Ch. Div. 216; Munn v. Munn, 1 Rob. Scot. App. H. L. 492; Sheldon v. Patrick, 1 Macq. 535; Miller v. Miller, 91 N.Y. 315, 43 Am. Rep. 669. The law of the domicile of origin governs the state and conditions of a person in whatever country he may remove to. Story Confl. Laws, § 93; Smith v. Kelly's Heirs, 23 Miss. 170, 55 Am. Dec. 87; Scott v. Key, 11 La.Ann. 232; Ross v. Ross, 37 Am. Rep. 321; In re Goodman's Trust, L. R. 17 Ch. Div. 266; Van Vorhis v. Brintwall, 86 N.Y. 18; Lingen v. Lingen, 45 Ala. 411; Dayton v. Askesson, 14 Am. St. Rep. 763.

Tracy R. Bangs and Wm. H. Standish, for respondent.

The lex rei sitae governs the descent of real property and the domicile the distribution of personal property. 24 Am. & Eng. Enc. L. 425-427; Carrol v. Carrol, 20 Tex. 731; Story's Confl. Laws, 359-390. The heirship law of the state in which the property is located controls its descent. Van Horn v. Van Horn, 77 N.W. 846; Caldwell v. Miller, 23 P. 946; U. S. Inv. Co. v. Caldwell, 152 U.S. 65, 14 S.E. 504; Harvey v. Ball, 32 Ind. 98; In re Olivers' Estate, 39 A. 72; In re Washchers' Estate 36 A. 1124; Leonard v. Braswell, 36 S.W. 685; Ewing v. Sneed, 22 Am. Dec. 41; Harris v. Harris, 2 S.W. 549; Blythe v. Ayers, 31 P. 915. The word "adopts" as used in our statute means "legitimates." Blythe v. Ayers, 96 Cal. 532, 31 P. 919. Bastards legitimated in their own country by their home law will be refused the right to inherit real estate left by the parent in another state where the laws of the latter do not authorize such legitimation. Stolze v. Doering, 112 Ill. 234; Kegan v. Greghty, 101 Ill. 26; Lingen v. Lingen, 45 Ala. 410; Barnum v. Barnum, 42 Md. 251; Smith v. Door, 75 Am. Dec. 461; Kimball v. Kimball, 16 So. Rep. 783. Legitimatizing statutes should be liberally construed to effect their object, the giving of heirship rights to natural children. Public recognition legitimates. Crane v. Crane, 31 Ia. 296; Blair v. Howell, 28 N.W. 199; Bailey v. Boyd, 59 Ind. 297; Brock v. State, 85 Ind. 397; Van Horn v. Van Horn, 77 N.W. 847.

OPINION

YOUNG, J.

This is a contest between the two sets of children of one Henrick Nickolai Eddie, deceased, to determine the right of succession to his estate. Eddie, the decedent, died in Grand Forks county October 9, 1886, without will, and possessed of considerable property, both personal and real, situated in that county. Henrick Ferdinand Eddie and Axel Eddie, who are plaintiffs herein, are the natural children of decedent. The defendants are his children by marriage, and are legitimate. The entire contest is as to the right of these natural children to share in the estate of their father by inheritance, under the laws of this state. The estate was probated in Grand Forks county, and final decree made, establishing the heirship of the defendants, and providing for a distribution of the estate in accordance with such findings. It appears that up to that time the existence of these natural children was unknown to the legitimate heirs. At least no claim was asserted by them in the probate court until some time after the final decree, when they presented a petition to that court setting out all of the facts upon which they base their right to inherit, asking that the decree establishing heirship and ordering distribution before made be vacated, and that they be permitted to share in the distribution of the estate as heirs of their father. The decree of the Probate Court, made after a full hearing of the evidence, denied their right to inherit. From that decree plaintiffs appealed to the District Court, where the decision of the Probate Court was reversed, and a decree was entered finding that plaintiffs were the legitimated children of decedent, and as such were his heirs, and directing the Probate Court to take such steps as were necessary to admit them to a full participation in the estate as heirs. From this decree the defendants appeal to this Court for a review of the same questions presented below.

The undisputed facts which are pertinent to the issues are these Henrick Nickolai Eddie, the decedent, was born in the Kingdom of Norway in 1843, near Levanger, where he resided continuously until 1869, when he came to the United States, where he lived thereafter and up to the time of his death. Prior to coming to this country he cohabited with one Sarah Rinnan, who also lived at Levenger. The plaintiffs are the issue of this intercourse; Henrick Ferdinand Eddie, born in 1861, and Axel Eddie, born in 1865. Both of these children lived with their mother up to the time of her death, which occurred about 20 years ago, and have always resided in Norway. There is no claim that their parents were ever married. After coming to this country, and in 1871, at La Crosse, Wis., Henrick Nickolai Eddie, the decedent, married Oleaana Gorden. The defendants are the issue of that marriage. After leaving Norway, in 1869, decedent never saw or communicated with the plaintiffs or their mother in any way. Neither did he ever acknowledge these children as his own by written instrument. The plaintiffs base their right to inherit upon a claim that they were adopted by their father, and thereby became legitimated, and, as a result, became his heirs under the laws of this state. The material facts upon which the claim of adoption rests are found in the seventh finding of fact of the District Court, which is as follows: "That during all the time after the birth of each of said plaintiffs, and up to the date of the immigration of said Henrick Nickolai Eddie to the United States of America, said Henrick Nickolai Eddie treated each of these plaintiffs as if he were a legitimate child of him, said Henrick Nickolai Eddie. That during said time be furnished support and maintenance to each of said children and to their said mother. That during said time he corrected and reproved said children. That during said time he lived a portion of the time with the said children and their said mother at Levanger, aforesaid. That during all of said time the said Henrick Nicolai Eddie publicly acknowledged each of said children, Henrick Ferdinand and Axel Eddie, as his own." The district Court, in its conclusions of law, found that plaintiffs were adopted by decedent as his own children, by his acts, prior to 1869, and that they were his heirs at law, and as such entitled to participate in the distribution of his estate. It will be noticed that all of the acts of the decedent which it is contended amount to an adoption of plaintiffs occurred in Norway, when he and plaintiffs and their mother were all residents of that kingdom. There is nothing in the record to show what the law of Norway is, or that there is any legal authority in that country for the legitimating or adoption of bastard children. Neither is it at all material, for appellants do not claim to have been legitimated and given the capacity to inherit by the laws of their own country, but rest their alleged status of legitimated children and claim to inheritable blood solely upon the laws of this state, where their father resided at his death, and where the estate is situated. It is contended that the acts of recognition by their father which occurred in Norway prior to the year 1869, which are set out in the finding of fact before quoted, legitimized and made them heirs under section 2806, Rev. Codes, which reads as follows: "The father of an illegitimate child by publicly acknowledging it as his own, receiving it as such with the consent of his wife, if he is married, into his family, and otherwise treating it as if it was a legitimate child, thereby adopts it as such, and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this chapter do not apply to such an adoption." The District Court reached the conclusion that there had been an adoption, and consequent legitimation, under this statute. Accepting the facts found by that court as true, we are yet not able to reach the same result. It is agreed that the laws of this state regulating the descent and distribution of property govern this estate. This follows necessarily from an application of the rule that personal property descends according to the law of domicile of the owner, and real estate under the law of the place where situated, for in this case both the real and personal property, as well as the domicile of the owner, were within this state. Comity between states has not gone to the extent of recognizing the right of one state to designate the persons to whom realty situate in another state shall descend, and doubtless never will. Another principle which is as universally...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT