Jackson v. Hocke
| Decision Date | 26 May 1908 |
| Docket Number | 21,232 |
| Citation | 84 N.E. 830,171 Ind. 371 |
| Parties | Jackson, Administrator, v. Hocke |
| Court | Indiana Supreme Court |
Rehearing Denied December 10, 1908.
From Marion Circuit Court; Henry Clay Allen, Judge.
Final report of Sylvanus Jackson, as administrator of the estate of William A. Jackson, deceased, to which Pearlie B. Hocke files exceptions. From a judgment for the exceptor, the administrator appeals. Transferred from Appellate Court under § 1399 Burns 1908, Acts 1901, p. 565, § 15. (See 41 Ind.App. 711.)
Reversed.
L. P Harlan, Harding & Hovey and O. U. Newman, for appellant.
Thomas A. Daily and Elias D. Salsbury, for appellee.
It appears from the record that appellee was the illegitimate child of Clara I. Hoover, who afterwards, in 1895, was married to appellant's intestate, William A. Jackson. In 1905 said Clara I., wife of said Jackson, died, and afterwards in the same year William A. Jackson, not having remarried, died intestate in this State, leaving no widow, no child or children or their descendants, no father or mother, but left brothers and sisters and their descendants, surviving him. Appellee survived the intestate, and claimed in the court below that she inherited all of his estate under § 2998 Burns 1908, § 2474 R. S. 1881, to the exclusion of the brothers and sisters of said intestate and their descendants. This contention was sustained by the court below, and judgment rendered accordingly.
If appellee's said contention is correct the judgment must be affirmed; otherwise, it must be reversed.
At common law an illegitimate child was considered the "son of nobody; and sometimes called filius nullius (the son of no one), sometimes filius populi (the son of the people)." 1 Blackstone's Comm., 459. See 2 Kent's Comm., 211, 212; 5 Cyc., 639-643; Bingham, Descents, 419; Blacklaws v. Milne (1876), 82 Ill. 505, 25 Am. Rep. 339; Simmons v. Bull (1852), 21 Ala. 501, 56 Am. Dec. 257 and note on pages 258, 261-265. It is said in 1 Blackstone's Comm., 459, that a bastard "cannot be heir to any one, neither can he have heirs, but of his own body; for being nullius filius, he is therefore of kin to nobody, and has no ancestor from whom any inheritable blood can be derived."
It is a rule of construction that, prima facie, the words "child," "children," or other terms of kindred, when used either in a statute or will, mean legitimate child, children or kindred only, and not illegitimate child, children or kindred. 5 Cyc., 640; Bingham, Descents, 483; McDonald v. Pittsburgh, etc., R. Co. (1896), 144 Ind. 459, 461, 43 N.E. 447, 32 L.R.A. 309, 55 Am. St. 185, and authorities cited; Blacklaws v. Milne, supra; McCool v. Smith (1861), 1 Black (U.S.) 459, 17 L.Ed. 218; Kent v. Barker (1854), 68 Mass. 535; Curtis v. Hewins (1846), 52 Mass. 294; Croan v. Phelps's Admr. (1893), 94 Ky. 213, 21 S.W. 874, 23 L.R.A. 753 and note on pages 754-758.
The descent of property, however, in this State is governed by statute, and the sections proper to be considered in this case (§§ 2990-2994, 2998, 3028 Burns 1908, §§ 2467-2471, 2474, 2490 R. S. 1881) are as follows:
It is insisted by counsel for appellee that Clara I. Jackson, the mother of appellee, if she had survived her husband, William A. Jackson, appellant's decedent (there being no child or children or their descendants, or father or mother) would have inherited all of his property under § 3028, supra; that as said Clara I. Jackson did not survive her said husband, appellee, her illegitimate child, who did survive him, inherited, by right of representation through her said mother, all of his property, under § 2998, supra, to the exclusion of his brothers and sisters and their descendants. To sustain this insistence counsel for appellee say that § 2998, supra, confers upon illegitimates inheritable blood, as respects the mother and any maternal ancestor, and any person from whom the mother might have inherited, if living, and as such they have the right of inheritance as fully as legitimate children, the object of the statute being to remove the common-law disability of inheritance through the maternal line, and in that regard to place such persons upon the same footing as legitimate persons; that said section simply permits the illegitimate child to take by representation through its mother, the same as § 2991, supra, permits the legitimate child to take by representation through both father and mother. This argument, however, does not sustain the contention that appellee, the illegitimate child of Clara I. Jackson, inherited under § 2998, supra, all of the property of appellant's decedent, to the exclusion of his brothers and sisters and their descendants, because, if she was the legitimate child of Clara I. Jackson by a former husband, she would not under § 2991, supra, have inherited through her said mother any of said decedent's property.
Under § 2991, supra, children (and this, under the rule already stated, means legitimate children) and their descendants only inherit through the father and mother what they (the father and mother) would have inherited, if living, through consanguinity--that is from blood relatives. If a wife dies leaving a husband, and also children by a former husband, surviving her, such former husband's children by her cannot, under § 2991, supra, or any other provision of the law concerning the descent of property in this state, inherit, through said mother or otherwise, any property from said mother's last husband, their stepfather. Under our laws of descent children take nothing by descent from their stepfather or stepmother, if they survive them, although their father, if he survived their stepmother, would inherit from her, and their mother, if she survived their stepfather, would inherit from him.
It is evident that the construction of § 2998, supra, contended for by appellee and sustained by the court below, would give an illegitimate child greater rights of inheritance through its mother than are given to legitimate children by our laws of descent.
Sections 2992, 2993, supra, provide that the property of an intestate shall be inherited by his living brothers and sisters and the descendants of such as are dead, when he leaves no children or their descendants and no father or mother surviving him. As the decedent in this case left brothers and sisters and their descendants surviving him, but no children or their descendants and no father or mother, they were entitled to inherit his property under §§ 2992, 2993, supra, if we give effect to the express language of said sections.
Sections 2990-2994, 2998, 3028, heretofore set out, were with other sections enacted in the same act in 1852, and have been in force since May 6, 1853; and under well-settled rules of construction must be construed in connection with each other, as well as with all the other sections of said act, so as to produce a harmonious whole. 2 Lewis's Sutherland, Stat. Constr. (2d ed.), § 368.
As was said by this court in Lime City Bldg., etc., Assn. v. Black (1894), 136 Ind. 544, on page 555, 35 N.E. 829:
In State, ex rel., v. Roby (1895), 142 Ind 168, 33 L.R.A. 213, ...
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