Hawbecker v. Hawbecker

• Decision Date: 08 February 1876
• Citation: 43 Md. 516
• Parties: JOHN HAWBECKER, and others v. SAMUEL HAWBECKER, and others.
• Court: Maryland Court of Appeals

43 Md. 516

JOHN HAWBECKER, and others v. SAMUEL HAWBECKER, and others.

Court of Appeals of Maryland

February 8, 1876

APPEAL from the Circuit Court of Washington County.

The case is stated in the opinion of the Court.

The cause was submitted to BARTOL, C.J., STEWART, GRASON, MILLER ALVEY and ROBINSON, J.

Louis E. McComas and Daniel Weisel, for the appellants.

George Freaner and Attorney General Syester, for the appellees.

MILLER J., delivered the opinion of the Court.

An entirely novel question is presented by this appeal. It appears from the record that Christian Hawbecker had, by his wife Catharine, four children born in lawful wedlock. During the life of his wife he also had six children by another woman. His wife died in 1854 and in 1855 he was lawfully married to the mother of the last mentioned children. It is proved that after this second marriage he acknowledged these children as his, and treated them as he did the children of his first wife, and just as men treat their legitimate children. In 1873 he died intestate, seized of real estate which was sold for the purpose of partition amongst his heirs at law. A pro forma order was passed by the Court below ratifying an account which distributed the proceeds of sale amongst all the children equally. From that order the children of the first wife have appealed.

These six children, of course, base their claim to inherit from their father upon the statute law. The 29th section of Art 47 of the Code, an exact transcript of the 7th section of the Act of 1820, ch. 191, which was a re-enactment, in almost identical terms, of the 7th section of the Act of 1786, ch. 45, provides that "If any man shall have a child or children by any woman, whom he shall afterwards marry, such child or children, if acknowledged by the man, shall, in virtue of such marriage and acknowledgment, be hereby legitimated, and capable in law to inherit and transmit inheritance as if born in wedlock."

Whilst it is conceded the terms of this statute are broad enough to embrace, and do in fact cover the case of these children, it has been very ably argued by the appellants' counsel that such offspring were not within the intent and meaning of the Legislature when they passed this law. Their argument is, that this provision was adopted and transplanted into our law from the civil law; that in all nations where that law prevails, and among whom the practice of legitimation by subseqent marriage obtains, the status of legitimacy as to children conceived and born at a time when their parents were under impediment to marry, is excepted, and such children are styled adulterine bastards; that the sentiment of civilized communities, and good morals sanction the legitimation of offspring by parents who are urged by every consideration of expediency and equity to a marriage, whereby what was at first irregular and injurious to society, is converted into the honorable relation of lawful matrimony, and those unseemly disorders in families where elder-born children of the same parents are left under the stain of bastardy, and the younger enjoy the status of legitimacy, are prevented; but this inducement could not be intended to influence such as are not in a present condition to marry, who might be impelled to murder a husband or wife that adultery might cease, and thus render homicide a preliminary to the marriage ceremony; that all the surrounding circumstances, and the practice of all nations from whose jurisprudence the law was borrowed, as well as the moral aspects, must have been in the minds of the Legislature when they passed this law, and their intent in enacting it must have been, to induce those to marry who were under no impediment to do so, and thereby legitimate their offspring.

It is doubtless a sound and recognized rule that statutes should be construed with a view to the original intent and meaning of the makers, and such construction be placed upon them as best answers that intention, which may be collected from the cause or necessity of making the Act, or from foreign circumstances, and when the intent is discovered it ought to be followed, although such construction may seem to be contrary to the letter of the statute, and therefore that which is within the letter of a statute, is sometimes not within the statute, not...