Messer v. Jones

• Decision Date: 16 January 1896
• Citation: 88 Me. 349,34 A. 177
• Parties: MESSER v. JONES.
• Court: Maine Supreme Court

34 A. 177

88 Me. 349

MESSER

v. JONES.

Supreme Judicial Court of Maine.

Jan. 16, 1896.

(Official.)

Appeal from supreme judicial court, Knox county.

Appeal by Robert W. Messer from a decree of the probate court appointing Charles D. Jones administrator of Amanda Shepard, deceased. Submitted on an agreed statement of facts. Decree reversed.

The case was submitted to the law court upon the following agreed statements:

Said Charles D. Jones was appointed administrator upon the petition of Sarah A, Stratton and others, who, it is admitted, are first cousins of said intestate, and who claim to be the lawful heirs of said intestate.

Robert W. Messer, the appellant, claims that he and his brother, Ambrose P. Messer, of Boston, Mass., and his sister, Eliza E. Cooper, of Jefferson, in the county of Lincoln, are the sole heirs of said intestate, and the only persons interested in her estate.

The appellant, for himself, and also in behalf of his said brother and sister, appeared at the probate court, and objected to the appointment of an administrator upon the above-named petition.

It was admitted that the appellant seasonably filed in the probate office notice of his appeal, and seasonably filed his reasons of appeal, and that the same were seasonably and lawfully served upon the respondent, and that a sufficient bond of appeal was seasonably filed.

The reasons of appeal filed by the appellant were as follows: "(1) Because said Charles D. Jones was not appointed such administrator upon the petition of any person or persons interested in said estate.

"(2) Because neither of the said petitioners, upon whose petition said Charles D. Jones was appointed such administrator, was interested in said estate, either as next of kin, heirs, creditors, or otherwise.

"(3) Because said petitioners are cousins of said deceased, and said Robert W. Messer and Ambrose P. Messer, of Boston, Mass., and Eliza E. Cooper, of Jefferson, Me., are nephews and niece, and only next of kin, and sole heirs, of said deceased."

Said Amanda Shepard died intestate on the 17th day of April, A. D. 1894, without issue; leaving neither husband, father, mother, sister, nor brother. Said intestate was the legitimate child of Daniel Shepard and Alice Shepard, his wife, whose name, before her marriage to said Shepard, was Alice Messer.

Daniel Shepard and Alice Messer were lawfully married April 23, 1802, and had eight legitimate children, one of whom died in infancy, and the remainder of whom lived to become of age. Neither of said children ever married, and neither of them ever had children. All the brothers and sisters of said intestate died before her death. The intestate was born April 30, 1819. Said Daniel Shepard died January 10, 1851, and said Alice Shepard died November 20, 1863.

The appellant, said Robert W. Messer, and the said Ambrose P. Messer and said Eliza.

E. Cooper are the legitimate children of Parker Messer, who died before the death of said intestate.

Said Parker Messer was the illegitimate child of said Alice Messer, and was born on the 24th day of June, 1800, and lived until about 10 years old with an uncle, and afterwards, until he became of age, in the family of one Daniel McCurdy.

The intestate and her brothers and sisters, who lived to become of age, during their lifetime continued to live together in one family, and her estate is substantially the accumulation of her said brothers and sisters and herself.

If, upon the foregoing statement of facts, the said Robert W. Messer, Ambrose P. Messer, and Eliza E. Cooper were decided to be lawful heirs of the intestate, Amanda Shepard, the appeal was to be sustained, and the decree appealed from was to be reversed. Otherwise the appeal was to be dismissed, and the decree affirmed.

W. H. Pogler, for appellant.

T. P. Pierce, for respondent.

FOSTER, J. Appeal from a decree of the judge of probate of the county of Knox appointing the respondent administrator of the estate of Amanda Shepard, upon the petition of the cousins of the intestate, who claim to be her next of kin and heirs at law.

The appellant and his brother and sister Ambrose P. Messer and Eliza E. Cooper, claim to be the sole heirs of the intestate, and the only persons legally interested in her estate.

It is agreed that, if the cousins are the lawful heirs of the intestate, the decree of the probate court is to be affirmed. If they are not, the same is to be reversed.

The question to be determined is whether the appellant and his brother and sister are lawful heirs of the intestate, Amanda Shepard.

Daniel Shepard was married in 1802 to Alice Messer. There were eight children, as the result of this marriage, of whom the intestate was one, and neither of whom was ever married, and neither had children. Amanda Shepard, the intestate, died in 1894, having survived her father, mother, brothers, and sisters.

Alice Messer, mother of the intestate, two years before her marriage to Daniel Shepard, gave birth to an illegitimate son, whose name was Parker Messer, the father of the appellant Robert W. Messer, Ambrose P. Messer, and Eliza E. Cooper.

The appellant and his brother and sister claim through their father, Parker Messer, and who, as we have said, was an illegitimate son, having the same mother as the intestate.

Had Parker Messer been legitimate, his children would be the sole heirs of the intestate, for nephews and nieces are one degree nearer in kinship than cousins. Computed by the rules of the civil law, a nephew stands in the third, and a cousin in the fourth, degree of kinship.

But, in order to inherit under the common law, this kinship must be of legal, inheritable blood. At common law an illegitimate child has no inheritable blood, and no rights of property can be traced through him.

Notwithstanding the statute relating to descent (Rev. St. c. 75, § 2) provides that "kindred of the half blood inherit equally with those of the whole blood in the same degree," the term "kindred," under that statute, means lawful kindred. Hughes v. Decker, 38 Me. 153.

But the claim of the appellant is not based upon the rules of the common law, and he must therefore bring himself within the provisions of some positive statute enactment. And the provisions of statute in force at the time of the decease of a person intestate must determine the rights of the heirs to the distribution or descent of his estate (Hunt v. Hunt, 37 Me. 333), as also who are entitled to inherit as heirs of a deceased person. No rules of the civil or common law, further than as they are adopted by the statute, can afford them any aid. The statute fixes its own rules, and by those rules we must be governed. The decision in this case, then, depends upon the proper construction of the statute in relation to the rights of illegitimate children in force at the time of Amanda Shepard's death, or chapter 14 of the Public Laws of 1887, which is as follows:

"An illegitimate child born after March twenty-fourth, in the year of our Lord one thousand...