Hardesty v. Mitchell, 14212.

• Decision Date: 06 April 1922
• Docket Number: No. 14212.,14212.
• Citation: 134 N.E. 745,302 Ill. 369
• Parties: HARDESTY v. MITCHELL et al.
• Court: Illinois Supreme Court

302 Ill. 369

134 N.E. 745

HARDESTY

v.MITCHELL et al.

No. 14212.

Supreme Court of Illinois.

Feb. 22, 1922.

Rehearing Denied April 6, 1922.

Bill by Charles Hardesty against Joseph Mitchell and others. Decree for plaintiff, and defendants appeal.

Reversed and remanded, with directions to dismiss bill.

Appeal from Circuit Court, Piatt County; George A. Sentel, judge.

Carl S. Reed, of Monticello, and Dobbins & Dobbins, of Champaign, for appellants.

Thomas J. Kastel, of Monticello, and Herrick & Herrick, of Farmer City, for appellee.

DUNN, J.

Wade H. Mitchell, the owner of 317 acres of land in Piatt county, died intestate on October 17, 1919. He left no wife or descendant, and no parent, brother, or sister, or descendant of a parent, brother, or sister, surviving him. His father had four brothers, two of whom had died, leaving children who survived Wade H. Mitchell. A few days after his death his surviving uncles, describing themselves as next of kin and only heirs of Wade H. Mitchell, executed deeds conveying a half interest in the premises to a trustee for the benefit of the children of his uncles who had died. On May 12, 1920, the appellee, describing himself as ‘Charles Hardesty, commonly known as Charles Tatman,’ filed a bill for the partition of the land, claiming to be a brother of the half blood of Wade H. Mitchell's mother,Cynthia Hardesty, and entitled to an equal share of the land with the paternal uncles. An answer was filed, denying the alleged relationship, and the cause was referred to a master, who reported that both the appellee and Cynthia Mitchell, the mother of Wade H. Mitchell, were illegitimate children of Mary Hardesty; that Cynthia Mitchell died, leaving her husband, John B. Mitchell, and her son, Wade H. Mitchell, her only heirs surviving her; that afterward John B. Mitchell died, owning the land in question, leaving Wade H. Mitchell his only heir, who thus acquired title to the land. The master found that under the law the appellee was not an heir of Wade H. Mitchell, and recommended a decree dismissing the bill. The chancellor sustained exceptions taken to the master's conclusions of law, and entered a decree finding the facts the same way, but finding the appellee entitled to a one-third interest in the land, and awarding partition, from which the defendants have appealed.

The only question is whether the appellee is an heir of Wade H. Mitchell. The facts are undisputed here, and so far as essential are that Cynthia Mitchell and the appellee were illegitimate children of Mary Hardesty. Wade H. Mitchell was a legitimate son of Cynthia. Cynthia died, Mary Hardesty died, and then Wade died, leaving two paternal uncles, who were his only heirs, unless the appellee, who is an uncle on his mother's side, but of illegitimate birth, is entitled to inherit equally with them. The question is entirely one of statutory construction.

[1] At common law a child born out of wedlock was nobody's child. He was without parents, kindred, or name. He could have no heirs, except his own lineal descendants, and could not inherit, even from his mother, or she from him. The rule of the common law was adopted as the law of this state immediately after its organization, by an act of the Legislature approved February 4, 1819, which enacted ‘that the common law of England, all statutes or acts of the British parliament made in aid of the common law prior to the fourth year of King James I,’ with three named exceptions, ‘which are of a general nature and not local to that kingdom, shall be the rule of decision and shall be considered as of full force, until repealed by legislative authority.’ The rule is therefore in force in Illinois to-day, except as it has been changed by statute.

[2] The descent of property in Illinois is regulated wholly by statute. The disability of persons of illegitimate birth to inherit property which existed at common law continued in the state of Illinois until 1829, when by section 47 of the act relative to wills and testaments it was provided that the illegitimate child or children of an unmarried woman should not be disinherited on account of the illegitimacy, but they and each of them, and their descendants, should be deemed able and capable in law to take and inherit the estate of their deceased mother in equal parts among them, to the exclusion of all other persons. Laws of 1829, [302 Ill. 372]p. 207. In 1853 an act concerning the descent of property was passed, which established the rule of descent of all property of any bastard or illegitimate person dying intestate, as follows: The property should descend to and vest in the widow or surviving husband and children; in case of no children or descendants, then the whole property to descend to and vest in the widow or surviving husband; in case of no widow, husband, or descendant, to the mother one-half, and the other half to be equally divided between her children and their descendants, the descendants of a child taking the share of his deceased parent or ancestor; in case there were no heirs as above provided, then the property should pass to and vest in the next of kin of the mother of such illegitimate person in the same manner as the estate of a legitimate person under the laws then in force pass to next of kin. Laws of 1853, p. 255.

[3][4] This was the condition of the law until the passage of the act of 1872 in regard to the descent of property, which is chapter 39 of the Revised Statutes. Section 1 of that act provides for the descent of the property of proprietors of legitimate birth, and section 2 for the descent of the property of proprietors of illegitimate birth. The first clause of section 2 of this act provides that an illegitimate child shall be heir of its mother and any maternal ancestor, and of any person from whom its mother might have inherited, if living, and the lawful issue of an illegitimate person shall represent such person and take by descent any estate which the parent would have taken, if living. In order to inherit from Wade H. Mitchell, it is therefore essential for the plaintiff to establish that his mother, if living, might have inherited from Wade. Wade was himself legitimate, and the descent of his property is regulated by the fifth clause of section 1 of the act in regard to the descent of property, which applies in case there is no child or descendant of the intestate, and no parent, brother, or sister, or descendant of such parent, brother, or sister, and no widow or surviving husband, and provides that in such case the estate shall descend in equal parts to the next of kin of the intestate in equal degree. The next of kin referred to means legitimate next of kin.

The words ‘child or children,’ when used in a statute, will, or deed, mean legitimate child or children, and will never be extended, by implication, to embrace illegitimate children, unless such construction is necessary to carry into effect the manifest purpose of the Legislature, testator or grantor. Black-laws v. Milne, 82 Ill. 505, 15 Am. Rep. 339:Orthwein v. Thomas, 127 Ill. 554, 21 N. E. 430,4 L. R. A. 434, 11 Am. St. Rep. 159;McDonald v. Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co., 144 Ind. 459, 43 N. E. 447,32 L. R. A. 309, 55 Am. St. Rep. 185;Marshall v. Wabash Railroad Co., 120 Mo. 275, 25 S. W. 179;Johnstone v. Taliaferro, 107 Ga. 6, 32 S. E. 931,45 L. R. A. 95;Kent v. Barker, 2 Gray (Mass.) 535. The term ‘issue’ is also restricted to legitimate issue, unless there is an express declaration to the contrary, or a necessary implication that illegitimate issue were intended to be included. Marsh v. Field. 297 Ill. 251, 130 N. E. 753. So, also, terms of kindred, when used in a statute, include only those who are legitimate, unless a different intention is clearly manifest. It is said in McCool v. Smith, 66 U. S. 459, 17 L. Ed. 218, that this proposition is too clear to require either argument or authority to sustain it. In Messer v. Jones, 88 Me. 353, 34 Atl. 178 it is said:

‘Notwithstanding the statute relating to descent [R. S. c. 75, § 2] provides that ‘kindred of the half blood inherit equally with those of the whole blood in the same degree,’ the term ‘kindred,’ under that statute, means lawful kindred.'

[5][6] Had Cynthia Mitchell survived her son, she would have inherited his property, and upon her death intestate her estate would have been inherited by her mother and her mother's children in accordance with the fourth paragraph of section 2 of the chapter on descent. The statute does not, however, extend the right of the mother to inherit from her illegitimate child, so as to give her the right to inherit from the children of such illegitimate child, whether legitimate or illegitimate. A statute of Massachusetts providedthat, if an illegitimate child dies intestate and without issue to lawfully inherit his estate, such estate shall descend to his mother, or, in case she is not living, to the persons who would have been entitled thereto by inheritance through his mother, if he had been a legitimate child. The daughter of an illegitimate child survived her mother and died, and, a claim having been made to her estate on behalf of her grandmother, the mother of the illegitimate child, it was held that the statute was not applicable to the distribution of the estate of a person who was not an illegitimate child, but one of the descendants of an illegitimate child. Sanford v. Marsh, 180 Mass. 210, 62 N. E. 268.

In Curtis v. Hewins, 11 Metc. (Mass.) 294, the question was presented of the construction of a statute providing that--

‘Every illegitimate child shall be considered as an heir of his mother, and shall...