Lincecum v. Lincecum

• Decision Date: 31 May 1834
• Citation: 3 Mo. 441
• Parties: LINCECUM AND MARTIN, ADM'RS OF LINCECUM, AND YOUNG, GUARDIAN OF LINCECUM v. LINCECUM.
• Court: Missouri Supreme Court

3 Mo. 441

LINCECUM AND MARTIN, ADM'RS OF LINCECUM, AND YOUNG, GUARDIAN OF LINCECUM

v.LINCECUM.

Supreme Court of Missouri.

May Term, 1834.

APPEAL FROM CAPE GIRARDEAU CIRCUIT COURT.

M'GIRK, C. J.

It appears by the record that in the year 1802, Asa Lincecum was married in the State of South Carolina, to one Malinda Nevills; that in 1803 there was born of that marriage a daughter, who died without issue; that in 1805, Harman Lincecum, the appellee, was also born of that marriage; that in 1807, Asa Lincecum and his wife parted by mutual consent and that the wife is yet alive and not divorced from her husband; that shortly after the separation, Asa came to Missouri and brought with him his son; that in 1810 he married in this country a second wife, had by that marriage two children, Isabella and Rezin; that in 1827, Lincecum died intestate, about which time the said second wife died also; that shortly afterwards administration was granted on his effects to H. Lincecum and A. Martin; that after the estate became ready for distribution, the said Harman Lincecum presented his petition to the County Court of Cape Girardeau county, alleging the existence of the former marriage, as stated above, and praying the court to order the remaining assets to be paid to him as sole distributee, deducting his mother's share therefrom. The mother and Harman Lincecum were the parties on one side, the administrators and guardian of the children by the last marriage were the parties on the other side. The County Court decreed and ordered that the distribution should be made to Harman Lincecum and his mother, in exclusion of the children of the last marriage. The parties appealed to the Circuit Court; when the cause came there, the court set aside the decree and tried the matter over again, as to Harman Lincecum, taking no notice of the claim set up by the mother. The court found for H. Lincecum and ordered distribution to be made to him, to the exclusion of the children by the second marriage. From this decree of the Circuit Court the parties have appealed to this court. In this court many points have been made by the appellants. We are of opinion that it will be useless in this case to decide all the points made in the case. The main point in the case, and the only one to be considered is, whether the children of the second wife are entitled to an equal distribution with the issue of the first marriage. To prove that they are so entitled, Mr Ranney, counsel for the appellants, cites and relies on the latter clause of the 8th section of the act of the General Assembly, entitled an act to direct descents and distributions (Rev. Code, 328), which clause declares as follows:

That “the issue of all marriages deemed null in law, or dissolved by a divorce, shall nevertheless be legitimate.” The first section of this act declares that the residue of the estate of an intestate, after deducting the widow's right of dower, and after the payment of debts, shall be divided among his children. All will agree that these children must be legitimate children, and that none else can take. The counsel insists that this section completely sustains his case. We are of opinion that this clause of the eighth section of the act does cover this case, and the children of the second marriage are entitled to share alike with the son of the first marriage. Messrs. Watkins and Scott, for the appellees, contend: First. That to extend the provisions of the 8th section to this case, would be to give the law a retrospective operation, inasmuch as all these marriages took place before the passage of the act, which was in the year 1825. Our view of this point is, that though the second marriage took place before the passage of the act, yet at the time of its passage Harman Lincecum had no right on which the law could then act, either prospectively or retrospectively.

The act does not pretend to make lawful those marriages which were null before, but it does act prospectively with regard to the children then in being. It declares that they shall no longer be considered bastards. That they shall henceforth be capable of inheriting and taking a distributive share from their father or mother, when such parents shall die intestate, leaving property. In this case the act in 1825 fixed and declared what the capacity of the children should be, if the father should die intestate. In 1827 the event happened; this appears to us to be altogether prospective.

The next matter urged by the appellees' counsel is, that the general words of this statute ought to be so limited and restrained as to not extend to this case, because to do so holds out a reward to bigamy.

It is true that no statute where the...