In Re Smith's Estate., 15696.

• Decision Date: 01 January 1944
• Docket Number: No. 15696.,15696.
• Citation: In Re Smith's Estate., 32 S.E.2d 375 (S.C. 1944)
• Court: South Carolina Supreme Court
• Parties: In re SMITH'S ESTATE. FOSTER. v. ROLAND.

32 S.E.2d 375

In re SMITH'S ESTATE.FOSTER.

v.ROLAND.

No. 15696.

Supreme Court of South Carolina.

Dee. 11, 1944.

Appeal from Common Pleas Court, of Spartanburg County; T. S. Sease, Judge.

Proceeding in the matter of the estate of Hosea Smith, intestate. On application of Annie Mae Smith Foster for letters of administration, claiming to be legitimated daughter and sole heir at law of the intestate, opposed by Barbara Roland. From an adverse judgment, reversing a judgment of the Probate Court for petitioner, petitioner appeals.

Reversed.

Osborne, Butler & Moore, of Spartanburg, for appellant.

C. Yates Brown, of Spartanburg, for respondent.

OXNER, Justice.

The question to be determined in this controversy is whether the appellant, Annie Mae Smith Foster, is the legitimate child of Hosea Smith, who died intestate on January 8, 1944. Claiming to be his daughter and sole heir at law and distributee, appellant applied for letters of administration. Respondent, a sister of Hosea Smith, filed with the Probate Court a petition for letters of administration wherein she denied that appellant was the legitimate child of deceased and contested the right of appellant to letters of administration, contending that the sole heirs at law and distributees of deceased were his brothers and sisters. The Probate Judge of Spartanburg County, after hearing considerable testimony on the issue thus presented, held that appellant was a legitimate child of deceased and issued to her permanent letters of administration. On exceptions by respondent, the matter was heard by the Circuit Judge, who reversed the order of the Probate Court and directed that letters of administration be issued to respondent. The Circuit Judge held that appellant was an illegitimate childand that the brothers and sisters of the deceased constituted his sole heirs at law and distributees. From this order of the Circuit Court appellant has appealed.

Hosea Smith and Sarah Jenkins, both residents of Spartanburg County, were duly married in 1921. At the time of this marriage Sarah Jenkins had two children. The older was a boy approximately eight years of age, who never resided with his mother after this marriage and subsequently died. It is not contended that Hosea Smith was the father of this boy. The younger was appellant, then a baby about one year old, who was known as Annie Mae Smith. Following this marriage appellant lived with Hosea Smith and his wife for approximately a year, when the mother died. After her death, Hosea Smith never remarried and lived with his relatives, and appellant lived with her maternal grandmother. Appellant married in 1938.

The Probate Judge found from the evidence that Hosea Smith was the father of appellant, that he recognized and acknowledged her as his daughter, and that fact induced him "in part at least" to marry appellant's mother. These factual findings were not questioned in the exceptions by respondent to the order of the Probate Judge, and at the hearing before the Circuit Judge it was agreed that these exceptions only raised legal questions. It seems to be conceded that appellant's claim of legitimacy depends upon the construction to be given to the following paragraph of Section 255(19) of the Code of 1942: "Warrants in bastardy shall be issued on voluntary complaint by mother or by county commissioners that child is likely to become a county ward. When issue of paternity is tried and found against defendant he shall be fined not more than ten ($10.00) dollars, shall pay the woman two hundred ($200.00) dollars, and give bond that the child shall not become a public charge, and shall stand charged with the maintenance of the child as the court may order. Action must be brought within three years after birth. If parents subsequently marry the child becomes legitimate as if born in lawful wedlock. The putative father of any illegitimate child may apply by petition in writing to the children's court of the county in which the father may reside, praying that such child may be declared legitimate. And if it shall appear that the petitioner is reputed the father of the child, the court may thereupon declare and pronounce the child legitimate; and the clerk shall record the deed. If any person shall wilfully abandon his family without providing adequate support for his wife, and the children which he may have begotten upon her, he shall be guilty of a misdemeanor." (We have italicized a certain portion so that it may be conveniently referred to in discussion.)

Before undertaking to construe this statute, it may not be amiss to digress and briefly refer to some phases of the common and statutory law governing the legitimacy of children. Under the common law, legitimate children were those born in lawful wedlock. Children not so born were held illegitimate, even though their parents intermarried after their birth. The power of the Legislature to legitimate or provide for the legitimation of bastard children has long been recognized both in England and in this country. In Davis v. Milford, 85 S.C. 504, 67 S.E. 744, this Court said: "The power of the Legislature to legitimatize a bastard for all purposes as if he were a child of lawful wedlock is plenary, and, by a statute which confers legitimacy without limitation, the bastard becomes a legitimate child for all purposes and in his relations with all persons."

Many, if not most, of the states have passed statutes abrogating the common law rule. These statutes vary considerably in their language. Under some an illegitimate child is legitimated where the parents intermarry after the birth of the child, although some of the statutes contain an additional requirement that the paternity of the child be recognized or acknowledged by the father. Other statutes provide for the legitimation of an illegitimate child by the father's acknowledgment of such child as his in accordance with certain requirements, even though the father does not intermarry with the mother. An Arizona statute declares that "every child is the legitimate child of its natural parents." Levy et al. v. Blakely, 41 Ariz. 327, 18 P.2d 263, 265.

Turning now to the statute...