Hastings v. Rathbone

• Decision Date: 23 June 1922
• Docket Number: 33883
• Parties: GEORGE D. HASTINGS, Appellee, v. W. E. RATHBONE et al., Appellants
• Court: Iowa Supreme Court

188 N.W. 960

194 Iowa 177

GEORGE D. HASTINGS, Appellee, v. W. E. RATHBONE et al., Appellants

No. 33883

Supreme Court of Iowa, Des Moines

June 23, 1922

REHEARING DENIED SEPTEMBER 23, 1922.

Appeal from Hardin District Court.--E. M. MCCALL, Judge.

ACTION by the alleged illegitimate son of testator to establish a right to participate in the estate of the said testator, and to ascertain his share therein. Decree was entered in behalf of plaintiff. The executors and residuary beneficiary under the will appeal. Plaintiff files a cross-appeal as to one feature of the decree. The facts appear in the opinion.--Modified and affirmed.

Modified and affirmed.

Lundy Peisen & Soper and W. R. Williams, for appellants.

H. A Huff and Aymer D. Davis, for appellee.

FAVILLE, J. STEVENS, C. J., EVANS and ARTHUR, JJ., concur.

OPINION

FAVILLE, J.

I.

The testator, George W. Hastings, died on February 17, 1918. He left an estate which, under the evidence, is valued at approximately $ 70,000. He was never married. By the terms of his will, he first directed the payment of his debts and obligations. He then gave to four nieces and nephews the sum of $ 3,000 each. The third paragraph of his will is as follows:

"Subject to the foregoing provisions of this will and the payment of the expenses of administering my estate I give devise and bequeath all the rest and residue of my estate, real and personal, to the Christian Home, sometimes known and spoken of as the Christian Home Orphanage located at the city of Council Bluffs and incorporated under the laws of Iowa. The money and property here devised and bequeathed is intended to constitute a permanent endowment under the name of the 'George W. Hastings Fund' and to be kept invested in good safe interest-bearing or income-producing securities. The principal of said fund is never to be encroached upon, but the interest and income therefrom may be used and expended by said home as the same may be needed for the benefit of the orphan children whom it may have in charge and in securing desirable and proper homes for such children."

The appellee claims to be the illegitimate son of the testator. The contention is that the bequest under said Paragraph 3 of the will contravenes the provisions of Code Section 3270, which section is as follows:

"Any person of full age and sound mind may dispose by will of all his property, subject to the rights of homestead and exemption created by law, and the distributive share in his estate given by law to the surviving spouse, except sufficient to pay his debts and expenses of administration; but where the survivor is named as a devisee therein, it shall be presumed, unless the intention is clear and explicit to the contrary, that such devise is in lieu of such distributive share, homestead and exemptions. No devise or bequest, however, to a corporation organized under the chapter relating to corporations not for pecuniary profit, or to a foreign corporation of a similar character, shall be valid in excess of one fourth of the testator's estate after payment of debts, if a spouse, child or parent survive the testator."

The initial question for our determination is whether or not the appellee has any right to invoke the provisions of said statute. Two questions inhere in this contention: First, is it established that the appellee is the illegitimate child of the testator; and second, if the paternity of said appellee is legally established, can he invoke the provisions of the said statute?

Without reviewing in detail the evidence in regard to the paternity of the appellee, we are convinced that the record in the case clearly and convincingly establishes that the appellee is the illegitimate son of the testator. The appellee was born at Ackley, Iowa, November 6, 1879. His mother was, at the time of his birth, a married woman, who had been deserted by her husband, from whom she subsequently obtained a divorce. Prior to the birth of the appellee, bastardy proceedings were instituted against the testator, in which proceedings he entered a plea of guilty. The record in said proceedings was introduced in evidence in the instant case. In said action a supplemental proceeding was instituted, which was appealed to this court. State v. Hastings, 74 Iowa 574, 38 N.W. 421. Referring to the father of the appellee, we said in said case:

"By his plea of guilty in the original proceeding, and by express written averment in this proceeding, he claims to be the father of the child."

The appellee spent his boyhood in the vicinity of Ackley. His mother has been dead many years. Numerous witnesses testified to an acquaintance with him. He passed under various names,--was sometimes known as Hastings, and sometimes as Lovell, which was his mother's name. Among his intimate associates he bore the sobriquet of "Yankee George," which had also been applied to his father. The story of the appellee's life, as related by him as a witness, reads like the tale of Ahasuerus, the Wandering Jew. The curse seems to have been upon him that was pronounced against Cain: "A fugitive and a vagabond shalt thou be on the earth." Whether in the little city where he was born or in the antipodes, whether enlisting in the navy, endeavoring to secure a passport, or seeking employment in any form of occupation, he has been continually under the relentless stigma for which he was in no way to blame, and which he has been unable to escape. Such is the fate which our civilization has attached to those unfortunate ones who are condemned to bear the cruel title of "bastard."

We find the evidence to be abundant and convincing that the appellee is the illegitimate child of the testator, George W. Hastings, and that the paternity was proven during the lifetime of the testator, and that the testator had generally and notoriously recognized the appellee as his child. See Code Section 3385.

II. Granting, then, that the appellee is the illegitimate son of the testator, we are at once confronted with the question as to whether or not he is, in legal significance, the "child" of said testator, within the meaning of Section 3270 of the Code. The limitation in said section provides that no devise or bequest to a corporation not for pecuniary profit shall be valid in excess of one fourth of the testator's estate after payment of debts, if parent, spouse, or child survive the testator.

It must be conceded that, under the common law, an illegitimate offspring was not a "child," within the contemplation of the law, and could not inherit from its father. Such is still the law of England and of a number of our states. The reasons for the origin of such a rule were doubtless twofold. One is the ostracism and odium which have been universally visited upon the illegitimate, since the days of Hebrew Moses. The other is the possibility of the assertion of fraudulent claims to heirship by those born "out of lawful wedlock." The Israelitish lawgiver declared:

"A bastard shall not enter into the congregation of the Lord; even to his tenth generation shall he not enter into the congregation of the Lord." Deut. 23:2.

The harshness of this inexorable command has been somewhat, but not wholly dissipated, as civilization has advanced through the succeeding ages. The Barefooted Peasant of Galilee said, "Suffer little children and forbid them not to come unto me, for of such is the Kingdom of Heaven" (Matt. 19:14); and it nowhere appears in Sacred Writ that the Great Teacher made any distinction in regard to the paternity of the children.

In McKellar v. Harkins, 183 Iowa 1030, 166 N.W. 1061, we discussed the question of the right of inheritance down the line of the descendants of an illegitimate, when the paternity is properly proven. Speaking by Mr. Justice Evans, we said:

"The general purport of the argument in support of the contrary authority is the old rule at common law, that an illegitimate has no inheritable blood, and is without kin and without ancestry. Inheritances, therefore, cannot pass through the blood of a bastard. He can have no heirs save those of his own body; and the ancestry of such heirs terminates in the bastard. The rule is stated briefly by Kent as follows 'A bastard * * * has no inheritable blood, and is incapable of inheriting as heir either of his putative father or his mother, or of anyone else, nor can he have heirs but of his own body.' 2 Kent's Commentaries 212. This rule has been one of the reproaches of the common law, which has shocked the legislative and judicial conscience of the civilized world. That a bastard has no inheritable blood is only a legal fiction. Legal fictions have their appropriate uses. They are the stepping stones of the law's reasoning; the parables whereby its principles are illustrated. When its reason fails, the fiction falls. The fiction that a bastard has no inheritable blood has been shorn of its reason in this state by legislation. It remains, therefore, a fiction only. Our legislation has conferred upon the illegitimate the right of inheritance, with appropriate safeguards as to the certainty of paternity. Why, therefore, should we deal with finespun theories of the common law as to inheritable blood? The only justification ever offered for the common-law fiction was that bastardy should be rendered odious. But bastardy is the sin of the parent; not of the child. The illegitimate child is as innocent as the babe of Bethlehem. Yet the common law held its fiction as a shield over the guilty parent, and frowned upon the guiltless child with the disdain of a Pharisee. Our early territorial legislation struck at the cruel injustice of this fiction. From territorial days until now, there has never been a time in this state when it has not been contradicted...