Miller v. Pennington

• Decision Date: 24 October 1905
• Citation: 218 Ill. 220,75 N.E. 919
• Parties: MILLER et al. v. PENNINGTON et al.
• Court: Illinois Supreme Court

218 Ill. 220

75 N.E. 919

MILLER et al.

v.PENNINGTON et al.

Supreme Court of Illinois.

Oct. 24, 1905.

Appeal from Circuit Court, Wayne County; J. R. Creighton, Judge.

Bill by Alexander Miller and others against Uriah Pennington and others. From a decree dismissing the bill as to certain complainants, they appeal. Reversed.

Rehearing denied December 12, 1905.

Organ & Elliott and William T. Bonham, for appellants.

J. R. Holt, George W. Johns, and Creighton & Thomas, for appellees.

CARTWRIGHT, C. J.

Alexander Miller and Rusaw Miller, the appellants, and their mother, Betsy Pennington, widow of Anthony Pennington, deceased, filed their bill in this case in the circuit court of Wayne county against the appellees, who were children and grandchildren of said Anthony Pennington, praying for the assignment of dower and homestead to said Betsy Pennington in the lands of which Anthony Pennington died seised, and for partition of said lands among appellants and appellees as heirs-at-law. The adult defendants answered, admitting the death of Anthony Pennington, that he was seised of the lands described in the bill, and that the complainant Betsy Pennington was his widow and entitled to dower and homestead, but denying that her children, Alexander Miller and Rusaw Miller, were children and heirs of Anthony Pennington. The minor defendants, by their guardian ad litem, filed a formal answer, neither admitting nor denying the allegations of the bill, but calling for proof. Replications having been filed, the cause was heard and a decree was entered assigning homestead and dower to Betsy Pennington, but dismissing the bill as to the complainants Alexander Miller and Rusaw Miller. The record has been brought to this court by appeal.

The facts proved at the hearing are as follows: In the year 1864 Anthony Pennington, a farmer and stock dealer, was living with his first wife, Phoebe Pennington, and they had four children. Betsy Miller was an unmarried woman and cousin of Phoebe Pennington. Rusaw Miller and Alexander Miller, who will be hereafter termed the complainants, were born to her,-Rusaw on March 14, 1864, and Alexander on April 24, 1865,-and Anthony Pennington was their natural father. Subsequently four more children were born to Anthony Pennington, and his said first wife. Phoebe Pennington, the first wife, having died, Anthony Pennington married Betsy Miller, the mother of the complainants, on April 2, 1902, and he lived with her as his wife until his death, on September 9, 1904. Prior to the death of his first wife he frequently denied the paternity of the children, but when he determined to marry their mother, and after the marriage, from time to time and within a short time before his death, he acknowledged to many different persons that they were his children. He told several persons that he was going to marry Betsy Miller, that they were his children, and he thought he was doing right. When he went to the justice to get the license and procure his attendance at the ceremony, he told the justice he wanted him to come down and marry him, that he thought it was the right thing for him to do, and that the complainants were his children. After the marriage, at different times, he made the same statements as to the parentage of the complainants, with expressions of opinion that he had done right in marrying their mother, saying that after Phoebe died he concluded to marry Betsy, and that he did not think it any more than right that he should marry her. These acknowledgments were made to about 25 disinterested persons who testified in the case. There was also evidence of other witnesses, not so numerous and several of whom were relatives of his first wife's children, that Anthony Pennington denied to them that he was the father of complainants, and these denials were made both before and after he married their mother. It appears that he was somewhat addicted to the use of intoxicating liquors, and that he was more likely to refer to the subject of the paternity of the children and his marriage to their mother at times when he had been drinking to some extent, which was perhaps natural enough, but it is very clear from the evidence that at such times he was entirely capable of intelligently making the acknowledgment. He made the statements to some witnesses when he had not been drinking and to others when he had, but he was a capable business man of considerable property, a stock buyer and farmer, and the force of his statements and acknowledgment is in nowise affected by the fact that on some occasions he had been drinking.

At the common law, an illegitimate was of kin to no one, and therefore was incapable of being the heir of any person, and the common law was in force in this state until changed by statute. Blacklaws v. Milne, 82 Ill. 505, 15 Am. Rep. 339. But this state, like many others, has abrogated the common-law rule by statute. The civil law, which is now recognized as more humane and just than the common law, enabled the father of an illegitimate child to make some reparation by securing to the innocent and unfortunate the rights of inheritance to which it is naturally entitled. There were several methods under the civil law by which an illegitimate child might be made legitimate, one of which was the mere marriage of the father and mother, and in some states their marriage alone, without any acknowledgment of paternity, has this effect. In others, children born out of wedlock become legitimate by the marriage of their parents and the recognition of the children by the parents as their own. In others, the subsequent marriage and recognition by the father, before or after marriage, is sufficient, and, in others, the acknowledgment is required by the statute to be in writing. By our statute two of these methods have been adopted as applied to different conditions. Where there has been a judicial finding of the paternity of the child, the marriage of the parents without any acknowledgment of paternity renders the child legitimate. Section 15 of the bastardy act provides that if the mother of any bastard child and the reputed father shall, at any time after the birth of the child, intermarry, the child shall in all respects be deemed and held legitimate. Hurd's Rev. St. 1899, p. 205, c. 17. Other cases of illegitimacy are provided for by the statute of descent. Section 3 of that act is as follows: ‘An illegitimate child, whose parents have intermarried and whose father has acknowledged him or her as his child, shall be considered legitimate.’ Hurd's Rev. St....