Jung v. St. Paul Fire Dept. Relief Ass'n

• Decision Date: 28 March 1947
• Docket Number: No. 34329.,34329.
• Citation: Jung v. St. Paul Fire Dept. Relief Ass'n, 27 N.W.2d 151, 223 Minn. 402 (Minn. 1947)
• Parties: JUNG v. PAUL FIRE DEPT. RELIEF ASS'N.
• Court: Minnesota Supreme Court

27 N.W.2d 151

223 Minn. 402

JUNG v. PAUL FIRE DEPT. RELIEF ASS'N.

No. 34329.

Supreme Court of Minnesota.

March 28, 1947.

Appeal from District Court, Ramsey County; John W. Boerner, Judge.

Action by James Thomas Jung, by Dorothy Jung, now Dorothy Jung Cooney, his guardian ad litem, against the St. Paul Fire Department Relief Association for recovery of certain benefits alleged to be due plaintiff upon death of his putative father. From an adverse judgment, the plaintiff appeals.

Affirmed.

Randall, Smith & Blomquist, of St. Paul, for appellant.

Roman J. Hautzinger, of St. Paul, for respondent.

MATSON, Justice.

Plaintiff, by his mother as guardian ad litem, appeals from a judgment entered for defendant in an action for the recovery of certain pension benefits alleged to be due him upon the death of his illegitimate father.

Plaintiff is a minor child and was born out of wedlock on December 19, 1938, to Dorothy Jung. Prior thereto, on November 1, 1938, Thomas James Kell, in writing and before a competent attesting witness, declared himself to be the father of plaintiff, who was then unborn, as part of a written stipulation for settlement entered into by the mother, the state board of control, and said Thomas J. Kell, whereby the latter agreed to pay and did pay $1,000 for and in consideration of being relieved from all further liability on account of plaintiff, pursuant to Minn.St.1945 and M.S.A. § 257.28. This stipulation was approved by the Ramsey county district court.

Thomas J. Kell, who during his lifetime was a member of the St. Paul fire department and also an active member in good standing of defendant association, was killed in the line of duty on January 9, 1942. According to the by-laws of defendant, if an active member dies leaving a widow who was his legally married wife or leaves a child or children, such widow and said child or children shall be entitled to a pension out of the association's benefit fund. In the case of a child, such pension would amount to $11.66 per month and would continue until the age of 16 years is attained. Defendant is organized under and subject to Minn.St.1945 and M.S.A. § 69.48, which provides:

"When * * * an active member of a relief association, dies, leaving

"(1) A widow * * *; or

"(2) A child or children * * * [such] widow and the child or children shall be entitled to a pension * * *:"

Subject to certain limitations, which are not here material, such statute further provides that the pension shall be granted "in conformity with the by-laws" of the association.

After plaintiff's application for a pension had been rejected by defendant, the present suit was instituted on his behalf by his mother as guardian ad litem to compel defendant to pay plaintiff the aforesaid monthly pension. The trial court found specifically that plaintiff was not a child of Thomas James Kell within the meaning of the foregoing statute and within the meaning of defendant's by-laws. The only issue we need consider is whether plaintiff, born out of wedlock and whose parentage has been acknowledged by the father in writing and before a competent witness, is a child of the said father within the meaning of that term as used in § 69.48 and in defendant's by-laws.

1. At common law, a child born out of wedlock is said to be filius nullius, the child of nobody, or filius populi, the child of the people. The common law is in force in this state except as it has been abrogated by statute or is not adapted to our conditions. 1 Dunnell, Dig. & Supp. § 1503, and cases cited. Most states, including Minnesota, have enacted statutes mitigating to a greater or less degree the rigors of the common law and have conferred upon illegitimates certain limited rights. See, Minn.St.1945 and M.S.A. §§ 525.172 and 176.01, subd. 3; In re Snethun's Estate, 180 Minn. 202, 230 N.W. 483; Reilly v. Shapiro, 196 Minn. 376, 265 N.W. 284. In numerous cases, the question has arisen whether illegitimates are included within such terms as "child" or "children" as used in statutes, wills, deeds, and other instruments. By the weight of authority, when the word "child" or "children" is used in a statute it means a legitimate child or children, unless the statutory language reflects an intent to the contrary. A similar interpretation has been adopted with respect to deeds, wills, and similar instruments, unless the context requires, or the circumstances surrounding the execution import, a meaning inclusive of illegitimates.¹

2, 3. We come to a consideration of the extent to which the harshness of the common-law rule has been mitigated in this state with respect to the rights and status of children born out of wedlock.

"While the common law is flexible and adaptive, and may be applied to new conditions, the courts cannot abrogate its established rules any more than they can abrogate a statute." 1 Dunnell, Dig. § 1504.

It is the province of the legislature, not the courts, to modify the rules of the common law. Congdon v. Congdon, 160 Minn. 343, 200 N.W. 76; 1 Dunnell, Dig. § 1503. We must therefore turn to an examination of pertinent legislative enactments to determine the degree of modification. One line of authority holds that statutes in derogation of the common law are to be strictly construed; but the more modern view is that when legislation, even though in derogation of the common law, is remedial in character, a liberal construction should be adopted. 10 C.J.S., Bastards, § 24; 7 Am. Jur., Bastards, § 151. A statute conferring upon illegitimates rights which the common law denied them is remedial. Goodell v. Yezerski, 170 Mich. 578, 136 N.W. 451, 40 L.R.A.,N.S., 516; Burris v. Burgett, 16 Del.Ch. 10, 139 A. 454; Crawford v. Masters, 98 S.C. 458, 82 S.E. 793; Edwards v. Beard, 77 Ind.App. 478, 134 N.E. 203; Wasmund v. Wasmund, 90 Wash. 274, 156 P. 3. The remedial nature of such legislation does not, however, justify a construction which gives to the statutory language an application and meaning not intended by the legislature. Gollnik v. Mengel, 112 Minn. 349, 128 N.W. 292; Minn. St.1945 and M.S.A. § 645.08. A legislative modification of the common law is limited in its application and by its necessary implication to the removal of the mischief against which the statute is directed. In determining the extent to which the common law has been abrogated we are not at liberty, even though the purpose be worthy, to substitute the horizon of judicial imagination for that of legislative intent. See, Wasmund v. Wasmund, 90 Wash. 274, 156 P. 3.

4. Section 69.48 (quoted above), under which defendant is organized, in its use of the term "child" or "children," obviously does not by and of itself involve or effect any change in the common law so as to include illegitimates. Murrell v. Industrial Commission, 291 Ill. 334, 126 N.E. 189; see, Annotation, 30 A.L.R. 1075. Its reference to defendant's by-laws adds nothing. This court (following the rule of State v. McCurdy, 116 Me. 359, 102 A. 72), in construing the meaning of the term "child" in G.S.1923, § 10136,² has already determined that such term, without any qualifying language to the contrary, does not embrace illegitimate children. State v. Lindskog, 175 Minn. 533, 221 N.W. 911, 912. Although the meaning of the term "child" has thus already been determined, plaintiff, nevertheless, contends that the legislature, by reason of having enacted certain statutes extending to illegitimates certain specific rights denied to them at common law, has in reality determined that the term "child" includes an illegitimate child. The contention seems wholly untenable. Plaintiff first refers to § 525.172, which provides:

"An illegitimate child shall inherit from his mother the same as if born in lawful wedlock, and also from the person who in writing and before a competent attesting witness shall have declared himself to be his father; but such child shall not inherit from the kindred of either parent by right of representation."

Obviously, the foregoing statute pertains to, and confers only, the right of inheritance. It is not in pari materia with § 69.48 so as to provide any basis whatever for construing the two statutes with reference to each other. It is also clear that the legislature did not intend thereby to abrogate the common-law rule generally, but only with respect to the right of inheritance, and then in a limited...