Hayden v. Barrett

• Decision Date: 09 January 1899
• Citation: 52 N.E. 530,172 Mass. 472
• Parties: HAYDEN et al. v. BARRETT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 472

52 N.E. 530

HAYDEN et al. v. BARRETT et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 9, 1899

COUNSEL

William Sullivan, for Ernest L. Morse.

E.G McInnes and C.A. Whittemore, for Fannie E. Barrett and others.

OPINION

HAMMOND J.

The single question is whether, under the fifth clause of the tenth item of this will, the illegitimate son of Mary Ann Morse takes as her "heir by blood." By the common law of England and of this commonwealth, a bastard in all matters relating to the inheritance of property was nobody's child, and as to such matters his existence was therefore ignored. Cooley v. Dewey, 4 Pick. 93; 2 Dane, Abr. 522, and cases therein cited; Pratt v. Atwood, 108 Mass. 40. And accordingly it is also well settled that, in the absence of any language clearly expressing the contrary, all general words in the statutes of distribution, such as "child," "children," "next of kin," and similar words descriptive of classes who are to inherit, do not include illegitimate children. Kent v. Barker, 2 Gray, 535, and cases therein cited. And so of similar expressions in a Massachusetts will. Kent v. Barker, supra; Adams v. Adams, 154 Mass. 290, 28 N.E. 260; Haraden v. Larrabee, 113 Mass. 430. If, therefore the rights of the illegitimate son of Mary Ann Morse depended upon the common law, the decision must be against him. But for two generations and more it has been the statute law of this commonwealth that an illegitimate child shall be the heir of his mother, and the tendency of legislation, as shown by an amendment to the statute, seems to be growing in the direction of change in the common law in this respect more favorable to him. By our statutes, Ernest L. Morse was the heir of his mother and of any maternal ancestor, and, if the mother died intestate, he, being the only child, was her sole heir as to all her property. By the will, the property at her death goes to the "heirs by blood." The illegitimate son, it is true, does not take by descent from his mother, but, if at all, as the person designated by the will. In Lavery v. Egan, 143 Mass. 389, 392, 9 N.E. 747 where real estate had been devised to a person for life with contingent remainder to her heirs, it was decided that the husband of the life tenant took as her heir, under St.1880, c. 211, § 1, which provides that in certain cases a husband shall take in fee the real estate of his deceased wife to an amount not exceeding $5,000 in value. In giving the opinion Mr. Justice Field says: "Although in the case at bar the heirs of [the life tenant] do not take from her by inheritance, but take as the persons designated by the will, yet we know of no way of determining the person intended by the will, except by ascertaining the persons who by law would have inherited the estate from her if she had died seised of it and intestate." Applying that principle to this case, we have no doubt that, within the meaning of the will as interpreted in the light of the statute...