Jackson v. Hocke

• Decision Date: 26 May 1908
• Docket Number: No. 21,232.,21,232.
• Citation: 84 N.E. 830,171 Ind. 371
• Parties: JACKSON v. HOCKE.
• Court: Indiana Supreme Court

171 Ind. 371

84 N.E. 830

JACKSON

v.HOCKE.

No. 21,232.

Supreme Court of Indiana.

May 26, 1908.

Appeal from Circuit Court, Marion County; H. C. Allen, Judge.

Action by Pearlie B. Hocke against Sylvanus Jackson, administrator, etc. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Transferred from the Appellate Court under section 1399, Burns' Ann. St. 1908 (section 1337 o, Burns' Ann. St. 1901; Acts 1901, p. 569, c. 247, § 15). Reversed, with instructions to sustain motion for new trial, and for further proceedings.L. P. Harlan, Harding & Hovey, and O. A. Newman, for appellant. Thomas A. Daily and E. D. Salsbury, for appellee.

MONKS, J.

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, and 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 section 2998, Burns' Ann. St. 1908 (section 2629, Burns' Ann. St. 1901; section 2474, Rev. St. 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. He was sometimes called ‘filius nullius' (the son of no one), and sometimes ‘filius populi’ (the son of the people).” 1 Blackstone, Commentaries, 458, 459; 2 Kent, Commentaries, 211, 212; 5 Cyc. 639-643; Bingham on Descents, p. 419; Blacklaws v. Milne, 82 Ill. 505, 15 Am. Rep. 339; Simmons v. Bull, 21 Ala. 501, 56 Am. Dec. 257, and note, pp. 258, 261-265. It is said in Blackstone's Commentaries, p. 459: “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 word “child,” “children,” or other terms of kindred, when used either in a statute or will, means legitimate child, children, or kindred only, and not an illegitimate child, children, or kindred. 5 Cyc. 640; Bingham on Descents, 483; McDonald v. Pittsburgh, etc., R. Co., 144 Ind. 459, 461, 43 N. E. 447, 32 L. R. A. 309, 55 Am. St. Rep. 185, and authorities cited; Blacklaws v. Milne, supra; McCool v. Smith, 1 Black (U. S.) 459, 17 L. Ed. 218;Kent v. Barker, 68 Mass. 535;Curtis v. Hewins, 52 Mass. 294;Croan v. Phelps' Adm'x, 94 Ky. 213, 21 S. W. 874, 23 L. R. A. 753, and note, pp. 754-758. The descent of property, however, in this state is governed by statute, and the sections proper to be considered in this case are as follows:

“Section 1. The real and personal property of any person dying intestate shall descend to his or her children in equal proportions; and posthumous children shall inherit equally with those born before the death of the ancestor.

“Sec. 2. If any children of such intestate shall have died intestate, leaving a child or children, such child or children shall inherit the share which would have descended to the father or mother; and grandchildren and more remote descendants and all other relatives of the intestate, whether lineal or collateral, shall inherit by the same rule: Provided, that if the intestate shall have left, at his death, grandchildren only, alive, they shall inherit equally.

“Sec. 3. If any intestate shall die without lawful issue or their descendants alive, one-half of the estate shall go to the father and mother of such intestate, as joint tenants, or, if either be dead, to the survivor, and the other half to the brothers and sisters and to the descendants of such as are dead, as tenants in common.

“Sec. 4. If there be neither father, nor mother, the brothers and sisters of the intestate living, and the descendants of such as are dead, shall take the inheritance as tenants in common. If there be no brothers or sisters of the intestate or their descendants, the father and mother shall take the inheritance as joint tenants; and if either be dead, the other shall take the estate.”

Section 5 of said act provides that, “if there be no person entitled to take the inheritance according to the preceding rules it shall descend in the following order,” etc.; and here follow provisions that the same shall descend to the paternal or maternal line according to the facts there set forth.

“Sec. 8. Illegitimate children shall inherit from the mother as if they were legitimate, and through the mother, if dead, any property or estate which she would, if living, have taken by gift, devise, or descent from any other person. ***”

“Sec. 26. If a husband or wife die intestate, leaving no child and no father or mother, the whole of his or her property, real and personal shall go to the survivor.”

The same being sections 2990-2994, 2998, 3028, Burns' Ann. St. 1908 (sections 2622-2626, 2629, 2651, Burns' Ann. St. 1901; sections 2467-2471, 2474, 2490, Rev. St. 1881).

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, that she would have inherited all of his property under section 26, supra, being section 3028, Burns' Ann. St. 1908 (section 2651, Burns' Ann. St. 1901; section 2490, Rev. St. 1881); that as said Clara I. Jackson, the wife of appellant's decedent, 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, to the exclusion of his brothers and sisters and their descendants, under section 8, supra, being section 2998, Burns' Ann. St. 1908 (section 2629, Burns' Ann. St. 1901; section 2474, Rev. St. 1881),” which provides: “Illegitimate children shall inherit from the mother as if they were legitimate, and through the mother, if dead, any property or estate which she would, if living, have taken by gift, devise, or descent from any other person.” To sustain this insistence counsel for appellee say that said section 8, 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 8, supra, simply permits the illegitimate child to take by representation through its mother, the same as section 2, supra, being section 2991, Burns' Ann. St. 1908 (section 2623, Burns' Ann. St. 1901; section 2468, Rev. St. 1881), 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 all of the property of appellant's descendant under said section 8, supra, 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 have inherited through her said mother any of said decedent's property under said section 2, supra, being section 2991, Burns' Ann. St. 1908 (section 2623, Burns' Ann. St. 1901; section 2468, Rev. St. 1881). Under said section 2, 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 inherit any property from their mother's last husband, their stepfather, through the said mother or otherwise, under said section 2, supra, or any other provision of the law concerning the descent of property in this state. Under our statute of descents 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 said section 8, 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 statute of descent.

Sections 3 and 4, supra, being sections 2992, 2993, Burns' Ann. St. 1908 (sections 2624, 2625, Burns' Ann. St. 1901; sections 2469, 2470, Rev. St. 1881), 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 said sections 3 and 4, supra, if we give effect to the express language of said sections. The sections 1, 2, 3, 4, 5, 8, and 26, above set out, were with other sections enacted in the same act in 1852, and have been in force since May 6, 1853; and...