Lyon v. Lyon

• Decision Date: 30 January 1896
• Citation: 88 Me. 395,34 A. 180
• Parties: LYON v. LYON et al.
• Court: Maine Supreme Court

34 A. 180

88 Me. 395

LYON

v. LYON et al.

Supreme Judicial Court of Maine.

Jan. 30, 1896.

(Official.)

Exceptions from superior court, Kennebec county.

Action by Ernest G. Lyon against William H. Lyon and others, executors of Abigail Sanford, deceased. There was a verdict for plaintiff, and defendants bring exceptions. Sustained.

H. M. Heath and O. A. Tuell, for plaintiff.

Orville D. Baker and Leslie C. Cornish, for defendants.

POSTER, J. Action of debt to recover a legacy of $2,000 mentioned in the last will of Abigail Sanford, who was the sister of the plaintiff's father.

The testatrix died August 7, 1889, having in the preceding April executed her will, under which the plaintiff claims as one of her nephews, by force of the following item: "I give and bequeath to each of my nephews and nieces who shall be living at the time of my decease $2,000."

The facts present the following as the principal question: Can an illegitimate son, born after March 24, 1864, whose parents intermarried subsequently to his birth, take, by the will of his father's sister, a legacy bequeathed to her nephews ?

As the plaintiff is not specially named in the bequest, the decision of that question depends upon the proper construction of Pub. Laws 1887, c. 14, which was the statute in force when the will was made and the testatrix died, and was enacted in lieu of Rev. St. c. 75, §§ 3, 4, which latter sections were expressly repealed.

The exceptions state that the plaintiff claimed, although illegitimate, "to be entitled to this legacy under chapter 14 of the Public Laws of 1887."

The statute provides: "An illegitimate child born after March 24, 1864, is the heir of his parents who intermarry. And any such child, born at any time, is the heir of his mother. And provided the father of an illegitimate child adopts him into his family, or in writing acknowledges before some justice of the peace, or notary public that he is the father, such child is also the heir of his father. And in either of the foregoing cases, such child and its issue shall inherit from its parents respectively, and from their lineal and collateral kindred, and these from such child and its issue the same as if legitimate."

The above statutory provisions specify three distinct conditions of fact, upon the existence of any one of which an illegitimate child becomes the heir of his father: (1) When his parents intermarry; (2) when his father adopts him into his family; or (3) acknowledges in writing, before the officer named, that he is his father.

The first condition is contained in a sentence by itself, separated from the second and third by an independent sentence, which declares the child, whenever born, to be the heir of his mother. Then, after that independent sentence, follow the second and third alternative conditions, by adoption or acknowledgment in the manner prescribed, one or the other of which makes him the heir of his father. Next follows the sentence pertaining to inheritance, viz.: "And in either of the foregoing cases, such child and its issue shall inherit," etc.

The strictly accurate and authoritative signification of the word "either" relates to two units or particulars only,—"being one or the other of two, taken indifferently as the case requires; being one or the other of two; being both of two, or each of two taken together, but viewed separately." Cent. Dict. "One or the other; properly, of two things." Webst Dict.

If we were to adopt the foregoing signification, a strict grammatical construction of this sentence would restrict and confine its effects to the second and third conditions, neither of which applies to the plaintiff. But the application of the accurate signification of words as laid down by lexicographers, and the strict rules of grammatical construction, oftentimes fails of reaching the real intent of statutes. Hence, although, "properly, 'either' refers indefinitely to one or the other of two, it often, in actual use, although inaccurately, refers to some one of many." Cent. Dict. And Webster, in one definition, defines "either" as "one or another of any number." And this, in our opinion, was the sense which the legislature intended; and the clause, therefore, should be construed as if it read, "and in either of tile three foregoing cases such child and its Issue shall inherit," etc. See Messer v. Jones, 88 Me. 349, 34 Atl 177,—a very recent decision of this court to the same point.

It is by force of legislative enactment alone that the plaintiff is heir of his father. At common law it was otherwise, and under that law he would have no rights of inheritance. Gooley v. Dewey, 4 Pick. 93. Although an heir of his father by the provisions of the statute, can the plaintiff take under a bequest in the will of his father's collateral kindred, which gives a legacy to each of such kindred's nephews, as a class, unless his name or some other designating identification is mentioned therein as the object of her bounty? By the common law he evidently could not, for legacies to nephews, like those to children, include only such as are legitimate. Bolton v. Bolton, 73 Me. 299, and cases cited on page 309; In re Brown, 58 L. J. Ch. 420; In re Hall, 35 Ch. Div. 551; Kent v. Barker, 2 Gray, 535, 536.

But the plaintiff's learned counsel now contends that, while it is true that the case was tried upon the supposition that the foregoing statute was the only one which had any reference to the subject-matter, yet in fact there were other statutory provisions which have since been discovered as existing at the time, which, together with the statute of 1887, control this case, and support the ruling of the court as given at the trial. These provisions are to be found in the final sentence of chapter 262, Laws 1864, which reads thus: "When the parents of any child which may be hereafter born illegitimate shall intermarry, such child shall be the legal heir of the father as well as of the mother; shall follow and have his legal settlement, and shall be deemed legitimate to all intents and purposes."

And it is claimed, furthermore, that, in consolidating and revising the then existing statutes upon the rights of illegitimate children, an important part of the act of 1864 was omitted from chapter 75, Rev. St. § 3,— that after the intermarriage such children "shall be deemed legitimate to all intents and purposes,"—notwithstanding the equivalent of that important element, in breaking up the chapter, was transferred to chapter 24, Rev. St. § 1, item 3, relating to paupers, where it appears in these words: "They are deemed legitimate and have the settlement of the father." It is also claimed that the dividing up of the law of 1864 was improperly done; that the words, "shall follow and have his legal settlement," should have been made a part of Rev. St., c. 24, relating to paupers, and the words, "shall be deemed legitimate to all intents and purposes," should have made a part of Rev. St. c. 75, § 3, relating to illegitimates; and, moreover, that as chapter 14 of the Laws of 1887 repeals only sections 3 and 4 of chapter 75, Rev. St., the important element of the enactment of 1864, "shall be deemed legitimate to all intents and purposes," which was transferred to chapter 24, Rev. St. § 1, item 3, still remains as the law of this state, applying to illegitimates, and should govern in the decision of this case.

But, notwithstanding the very elaborate argument of the learned counsel for the plaintiff, we are not satisfied that such a construction as contended for should be applied to the act of 1864. The legislative intention must prevail in the construction of statutes, whenever that intention can be ascertained. "And if it can be gathered, from a subsequent statute in pari materia, what meaning the legislature attached to the words of a former statute, they will amount to a legislative declaration of its meaning, and will govern the construction of the first statute." U. S. v. Freeman, 3 How. 565.

In the first place, it will be noticed that this act of 1864 was expressly repealed by the revision of 1871 (pages 935, 936), and its parts broken up, preserved, and distributed— first, under section 1, par. 3, c. 24, relating to "Paupers"; and, second, under section 3. c. 75, relating to "Title by Descent." It never, as a whole, formed a part of any deliberate revision of the statutes. In the revision it was the duty of the commissioners to codify, collocate, and revise this law. In doing this, that part of the statute which, under certain conditions, legitimized illegitimates, was relegated to the pauper law, and was so condensed as to make it clear that it meant to legitimize only so far as affecting the pauper settlement of the illegitimate. And all that part of the statute which the legislature intended to affect inheritance was carried to chapter 75, § 3, relating to "Title by Descent." This sundering of the different provisions of the statute is strong evidence of the legislative intent as to its meaning, when considered in connection with the sanction that was given by the revisions of 1871 and 1883, whereby the legislature reaffirmed this deliberate expression of its will by re-enacting the same context and subject-matter for each fragment of the...