Moore v. Moore

• Decision Date: 18 June 1902
• Parties: MOORE v. MOORE et al.
• Court: Missouri Supreme Court

69 S.W. 278

169 Mo. 432

MOORE v. MOORE et al.

Supreme Court of Missouri, Division No. 1.

June 18, 1902.

BASTARDS — RIGHT TO INHERIT.

Under Rev. St. 1899, § 2916, providing that bastards shall be capable of inheriting and transmitting inheritance on the part of their mother, as if they had been lawfully begotten of her, a bastard may, like a legitimate child, inherit from a brother of his mother dying after her.

Appeal from circuit court, Dade county; H. C. Timmonds, Judge.

Suit by Milton W. Moore against Robert Moore and others. Judgment for defendants. Plaintiff appeals. Reversed.

L. W. Shafer and Wm. B. Skinner, for appellant. Mason Talbutt and Edgar P. Mann, for respondent.

BRACE, J.

This is a suit for the partition of 200 acres of land in Dade county, described in the petition, of which the plaintiff claims that he is entitled to an undivided one-fourth, and that the defendants are entitled to the other undivided three-fourths. The circuit court found that the plaintiff had no interest in the premises, and from the judgment against him in favor of the defendants he appeals. On the 26th of August, 1896, Alvin W. Moore (his father and mother being dead) died intestate, the owner in fee simple of the premises, without lineal descendants. The plaintiff is the only child of a deceased sister of the said Alvin W. Moore, whose death preceded his; and the defendants are his two brothers and the children of a deceased brother, whose death also preceded that of the said Alvin W. Moore. The plaintiff's mother was never married, and the only question in the case is, does he take a share of his uncle's real estate, under our statute of descents, which provides that if there be no lineal descendants, and no father or mother, such estate shall descend to the "brothers and sisters, and their descendants," of the intestate (Rev. St. 1899, § 2908), and that "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" (Rev. St. 1899, § 2916)? As originally enacted, section 2916 was a transcript of the statute of Virginia on the subject, and read as follows: "Bastards shall be capable of inheriting and transmitting inheritance on the part of the mother in like manner as if they had been lawfully begotten of such mother" (1 Rev. St. 1825, p. 328, § 7), and continued on our statute books in that form until the Revision of 1865, when the words in parentheses, "and such mother may inherit from her bastard child or children," were inserted. Gen. St. 1865, p. 518, § 9.

The first reported case in which this statute was construed is the case of Stevenson v. Sullivant, 5 Wheat. 207, 5 L. Ed. 70, decided in 1820, in which it was held, notwithstanding this statute, that a bastard was still, as at common law, filius nullius as to his collateral blood relatives on the mother's side, and could not inherit from them. The next is the case of Scroggin v. Allan, 2 Dana, 363, decided in 1834, in which the case of Stevenson v. Sullivant was followed by a divided court; Underwood, J., dissenting in a masterly opinion, holding that this statute places bastards upon the same footing in all respects, as regards inheritance on the mother's side, with legitimate children. The ruling of the majority of the court, however, seems to have become the prevailing doctrine in the state of Kentucky. Remmington v. Lewis, 8 B. Mon. 606; Allen v. Ramsey's Heirs, 1 Metc. 635; Berry v. Owens' Heirs, 5 Bush, 452; Jackson v. Jackson, 78 Ky. 390, 39 Am. Rep. 246; Sutton v. Sutton, 87 Ky. 216, 8 S. W. 337, 12 Am. St. Rep. 476. The next is the case of Garland v. Harrison, 8 Leigh, 368, decided by the court of appeals of Virginia in 1837, in which that court held that the bastard brothers of the decedent, as well as his mother, were entitled to take as his heirs, under this statute, and utterly repudiated the construction placed upon it by the supreme court of the United States in Stevenson v. Sullivant. Three able, harmonious, and exhaustive opinions were delivered in the case, all agreeing in the purpose of the statute; Judge Parker saying in the course of his opinion that the object of the statute was "to give the bastard a mother and maternal kindred, and to make them heritable from each other in the order prescribed by the law of descents, as if the bastard had been lawfully begotten of such mother. * * * That the only case which in any degree conflicts with this opinion is the one cited, of Stevenson v. Sullivant, 5 Wheat. 207, 5 L. Ed. 70. And even that seems to have turned upon the point that the descent between brother and brother was immediate, and not on the part of the mother. I cannot, however, bring my mind to assent to the reasoning or to the conclusions of the learned judge who delivered the opinion in that case. He seems to me to have taken too narrow and technical a view of the subject, and to have relied on the disabilities of bastards growing out of the common law, without duly considering the policy of our act of descents, which leaves little or nothing for the common law to act upon, but creates a system complete in itself. Be that as it may, the case, although entitled to great respect from this court, is not binding on us as authority, and must not be permitted to control our judgments." Judge Brockenbrough saying: Under this statute "a bastard is still nullius patris filius, but he is not in that position as to his mother. As to her, he is as if born in lawful wedlock. In other words, he is her legitimate son, so far as his capacity to inherit and transmit inheritances. * * * The bastard is not restricted to an inheritance from the mother or through the mother in the direct line, but he may take an inheritance on the part of the mother from the collateral line." And Judge Tucker, after a vigorous analysis of the statute, reaches the same conclusion, and says of the case of Stevenson v. Sullivant, 5 Wheat. 207, 5 L. Ed. 70: "That case is, I think, so obviously erroneous in its total exclusion of collaterals that I decline to follow it, notwithstanding the high respect which is due to the able bench by which the decision was pronounced. It has been truly said, too, to have no binding authority upon us. On the contrary, the supreme court defers to the judgment of this court in the construction which it gives to Virginia statutes." This case was followed in the subsequent cases of Hepburn v. Dundas, 13 Grat. 219, decided in 1856, and in Bennett v. Toler, 15 Grat. 588, 78 Am. Dec. 638, decided in 1860, and is the established law on the subject in Virginia, whence this statute came to us, as it did to Kentucky and Ohio. In the case of Little's Lessee v. Lake, 8 Ohio, 289, decided by the supreme court of that state in 1838 it was held, on the authority of Stevenson v. Sullivant, that the estate of an intestate bastard decedent, without issue, who had survived his mother, did not pass to the maternal line under this statute. Although this ruling was in fact overturned by a statute of Ohio passed in 1853, yet in the case of Lewis v. Eutsler, 4 Ohio St. 354, decided by the supreme court of that state in 1854, the decisions in Stevenson v. Sullivant and Little's Lessee v. Lake were reversed and overruled; Ranney, J., who delivered the opinion of the court, saying in the course of the opinion: "The narrow construction adopted in both these cases is said to be founded upon the settled meaning of the expression `ex parte materna,' when used in reference to the course of descent of real property in the English law. I may not fully understand what rule is intended to be here invoked. I know of none but that strict rule of feudal policy embodied in the fifth canon of descents, which confined the estate to the blood of the first purchaser. If the estate came through the paternal line to the person last seised, it should never descend to one in the maternal; and, e converso, if it came through the maternal line, it should never descend to one in the paternal, but should rather escheat to the lord of the fee. Very anciently, it is true, a feudum novum could only descend to the lineal descendants of the first acquirer. But more than a century before the passage of our statute this harsh rule of a military system had been entirely abrogated in England, first by granting a feudum novum to be held ut feudum antiquum, and finally by considering every acquisition of an estate in fee simple by purchase as a feudum antiquum, or feud of indefinite antiquity; thereby enabling the collateral kindred of the grantee, or descendants from any of his lineal ancestors, by whom the lands might possibly have been purchased, to succeed to the inheritance. 3 Cruise, Dig. 380. But let it be granted (what, I think, no amount of industry could prove) that a part of the language of our statute is a tolerable translation of words which imported an exclusion of collaterals in the English law; and still but little is done towards arriving at the intention of the plain men who passed the act of 1831, four-fifths of whom were ignorant of the existence of any such rule, and of the language in which it is expressed. To find what they intended, it is necessary to consider all they have said, and to interpret it in accordance with the usual and ordinary signification of the language employed. When this is done, I find it impossible to doubt that it was intended to abrogate the common-law doctrine, so far as to declare that the bastard, instead of being nullius filius, should thereafter, in law as in fact, be the son of his mother, and, as such, not only capable of receiving inheritance directly from her, and of transmitting inheritance directly to her, but also, through her as the common ancestor, from or to any one of her blood, `in like manner,' to use the language of the statute, `as if he had been born in lawful...