Martin v. Claxton

• Decision Date: 23 May 1925
• Docket Number: 23938
• Citation: 274 S.W. 77,308 Mo. 314
• Parties: ETHEL MARTIN, Appellant, v. ROBERT D. CLAXTON
• Court: Missouri Supreme Court

274 S.W. 77

308 Mo. 314

ETHEL MARTIN, Appellant, v. ROBERT D. CLAXTON

No. 23938

Supreme Court of Missouri

May 23, 1925

Motion for Rehearing Overruled July 1, 1925.

Appeal from St. Louis City Circuit Court; Hon. Robert W Hall, Judge.

Reversed and remanded (with directions).

Jones Hocker, Sullivan & Angert, Richmond A. E. Evans and Wm. A. Kinnerk for appellant.

(1) The court erred in holding that plaintiff was not entitled to claim the benefit of Sec. 514, R. S. 1919, because the plaintiff is entitled to inherit from her mother. Sec. 311 R. S. 1919; Moore v. Moore, 169 Mo. 432; Moore v. Stewart, 122 Mo. 295; Bernero v. Goodwin, 267 Mo. 436; Hahn v. Hammerstein, 272 Mo. 257; In re Cupples Estate, 272 Mo. 472; Willis v. Robinson, 291 Mo. 689; Estate of Wardell, 57 Cal. 484; Eaton v. Eaton, 88 Conn. 269; Briggs v. Greene, 10 R. I. 495. (2) The old common-law definition of "child" or "children" is no longer followed in this State, but must give way to statutory definitions and the spirit of the law of descents and distribution. Cases supra; Notes in 30 L. R. A. (N. S.) p. 914, L. R. A. 1918B, p. 119, L. R. A. 1918F, p. 1082, 15 A. L. R. 1265; Lewis v. Eutsler, 4 Ohio St. 354; Garland v. Harrison, 8 Leigh (Va.) 368.

Arnold Loewenstein for respondent.

(1) Sec. 514, R. S. 1919, refers to legitimate children only, and an illegitimate child has no interest in the estate of its mother who died testate without mentioning such child in her will. Accordingly, appellant has no interest in the real estate involved, and her bill was properly dismissed. Baker v. Stucker, 248 S.W. 1003, approving: Kent v. Barker, 2 Gray (Mass.) 535; King v. Thissell, 222 Mass. 140; Mansfield v. Neff, 43 Utah 258, 269. (2) Whenever the words "child" or "children" are used in a statute, will or deed, they are held by the prevalent rule of construction to mean legitimate child or children only. That is the law in this State, so that in construing Sec. 514, R. S. 1919, the words child or children do not include illegitimate offspring. Cases, supra; Bent's Administrator v. St. Vrain, 30 Mo. 268; Gates v. Seibert, 157 Mo. 254, 272; 7 C. J. p. 959; Blacklaws v. Milne, 82 Ill. 505; Robinson v. Georgia Railroad & Banking Co., 117 Ga. 168; Hicks v. Smith, 94 Ga. 809; Peerless Pacific Co. v. Burchard, 90 Wash. 224; Bell v. Burnstead, 14 N.Y.S. 697, 698. (3) Sec. 311, R. S. 1919, merely permits an illegitimate child and its mother to inherit from one another. It does not change the status of the child. It does not make such child legitimate. It it in derogation of the common law. Its terms cannot be extended by implication or construction beyond its express terms. It is operative only in cases of intestacy and must be strictly construed. Baker v. Stucker, 248 S.W. 1003; Kent v. Barker, 2 Gray (Mass.) 535; Mansfield v. Neff, 43 Utah 258, 269; 3 R. C. L. 774; 7 C. J. 960; Brisbin v. Huntington, 128 Iowa 166. (4) Statutes like Sec. 514, R. S. 1919, providing that parents shall be deemed to have died intestate as to children or descendants of children omitted in their will, are a restriction upon the right of alienation of their property, the right to dispose of their property as they see fit and to devise or bequeath it by will as they desire. Such statutes are in derogation of the common law. They should be strictly construed and their terms should not be extended by implication. Baker v. Stucker, 248 S.W. 1003; Mansfield v. Neff, 43 Utah 258, 269; 18 C. J. 839. (5) The cases cited by appellant relating to the rights of adopted children in the estate of the adopting parent are neither in point nor analogous, as they are based upon statutes which by their express terms make such a child a legal child entitled to all the rights of child born in lawful wedlock. By the very event of adoption the adopted child becomes a legal child of the adopting parent. Secs. 1101, 1671, 1673, R. S. 1909; Power v. Halfey, 85 Ky. 671; Bray v. Miles, 23 Ind.App. 432; Hemphries v. Davies, 100 Ind. 274.

OPINION

Woodson, J.

This is an ejectment suit brought by the plaintiff in the Circuit Court of the City of St. Louis, against the defendant, for the recovery of a certain house and lot, located in said city and particularly described in the petition. The petition was in conventional form, and the damages were placed at $ 1,000 for the unlawful withholding of the premises, and the monthly rents and profits were stated to be $ 30 per month.

The answer consisted of a general denial, a plea that the plaintiff was the illegitimate child (a bastard) of the defendant's wife, and a cross-bill; but the matters set up in the cross-bill passed off in the trial and were not preserved in the record. Consequently we shall pay no further attention to it.

The court found the facts for the defendant, and after moving unsuccessfully for a new trial, the plaintiff duly appealed the cause to this court.

The facts of the plaintiff's case are agreed to and are as follows:

"That the plaintiff herein was the illegitimate daughter of Annie Claxton, wife of Robert D. Claxton, and that she was born to the said Annie Claxton long prior to the marriage between the said Annie Claxton and Robert D. Claxton; that said Robert Claxton was not the father of the plaintiff, and never recognized her as such, and that plaintiff never was adopted by defendant or the said Annie Claxton, his wife."

And this was all the evidence offered in behalf of the plaintiff.

The defendant to sustain the issues on his part offered the following evidence: the last will and testament of Annie D. Claxton, the deceased wife of defendant. Said will is dated February 6, 1899, and was admitted to probate in the Probate Court of the City of St. Louis on April 2, 1915. By said will the testatrix devised and bequeathed all of her property, including the property sued for, to her husband, the defendant, Robert D. Claxton. The plaintiff, Ethel Martin, was not mentioned in said will either expressly or impliedly. By said will, the defendant, Robert D. Claxton, was appointed the executor thereof.

There was also evidence offered in behalf of the plaintiff tending to show that said Annie Claxton, mother of plaintiff, died in the city of St. Louis, Missouri, on the 15th day of March, 1915, and that Robert D. Claxton, defendant, qualified in the Probate Court of the City of St. Louis, Missouri, as executor of her last will and testament, which will was duly admitted to probate in said court; that he also filed, as required by law, an inventory and appraisement of the estate of said Annie Claxton, in said court, which inventory and appraisement is in words and figures as follows, to-wit: Said inventory lists among the property of the estate the real estate sued for herein, the inventory and appraisement being in the usual form, and sworn to by Robert D. Claxton, executor.

The defendant himself being sworn, his competency as a witness was objected to on the ground that the other party to the contract, as set forth in his answer and cross-bill, being dead, he was disqualified, under the statute, from testifying. This objection was overruled, and an exception to the ruling was duly saved.

On January 10, 1922, the court took the cause under advisement, and thereafter on the 6th day of February, 1922, and during the February, 1922, term of said court, found the issues in favor of the defendant, filing the following memorandum of an opinion, and concluding with the following entry: "Bill dismissed; legal title in defendant; defendant's crossbill dismissed."

"Memorandum and Decision of Court. This is a suit in ejectment brought by the alleged daughter of defendant's deceased wife. At the outset it is admitted that plaintiff is the illegitimate (bastard) child of defendant's deceased wife; that the wife always lived in this country; that the deceased wife was born in Ireland and came to this country and thereafter married defendant; that the defendant never saw or knew plaintiff, and that the record title to the property in question was in defendant's wife at her death and by her will was bequeathed to her husband, the defendant herein.

"The contention of the plaintiff is that she being the daughter of the deceased, there being no children born of the marriage, she is entitled to the property under Section 311, Revised Statutes 1919, which section reads as follows:

"'Sec. 311. Bastards shall be capable of inheriting and transmitting inheritance on the part of their mother, and such mother may inherit from her bastard child or children, in like manner as if they had been lawfully begotten of her.'

"The defendant relies upon Section 514, Revised Statutes 1919, which is as follows:

"'Sec. 514. If any person make his last will, and die, leaving a child or children, or descendants of said child or children in case of their death, not named or provided for in such will, although born after the making of such will, or the death of the testator, every such testator, so far as shall regard any such child or children, or their descendants, not provided for, shall be deemed to die intestate; and such child or children, or their descendants, shall be entitled to such proportion of the estate of the testator, real and personal, as if he had died intestate, and the same shall be assigned to them, and all the other heirs, devisees and legatees shall refund their proportional part.'"

There was no dispute as to the facts of the case, and it is practically admitted that the court's findings were correct, so the only question presented by the record is one of law (the question of the defendant's equitable interest in and to the property dropped out of the case with the cross-bill) and that is the proper construction of Sections 311 and 514, Revised...