Moore v. Moore

• Decision Date: 28 June 1902
• Citation: 69 S.W. 278,169 Mo. 432
• Parties: MOORE, Appellant, v. MOORE et al
• Court: Missouri Supreme Court

69 S.W. 278

169 Mo. 432

MOORE, Appellant, v. MOORE et al

Supreme Court of Missouri, First Division

June 28, 1902

Appeal from Dade Circuit Court. -- Hon. H. C. Timmonds, Judge.

Reversed and remanded.

L. W Shafer and William B. Skinner for appellant.

(1) The effect of the statute, "Bastards shall be capable of inheriting and transmitting inheritance on the part of their mother, and such mother shall inherit from her bastard child or children in like manner as if they had been lawfully begotten of her," enacted in this and other States, is to give to the bastard, in law, as in fact, a mother, which he did not have at common law; to concede to him inheritable blood on his mother's side, thus placing him, in all respects, upon the same footing as her lawfully begotten child, and, as such, not only capable of receiving inheritance directly from her and of transmitting inheritance to her, but, also, through her, as the common ancestor, from or to any of her blood, in like manner (to use the language of the statute) "as if he had been lawfully begotten of her." Davis v. Rowe, 6 Rand. (Va.) 364 Stones v. Keeling, 5 Call (Va.) 143; Garland v Harrison, 8 Leigh (Va.) 369; Bennett v. Toler, 15 Grattan (Va.) 588; Dickinson's Appeal, 42 Conn. 491; Lewis v. Eutsler, 4 Oh. St. 354; McGuire v. Brown, 41 Iowa 650; Cooley v. Dewey (Mass.), 4 Pick. 94; Burlington v. Fosby, 6 Vt. 83; Rogers v. Weller, 5 Bliss (Ill.) 166; Jenkins v. Drone, 121 Ill. 217; Bales v. Elder, 127 Ill. 425; s. c., 21 N.E. 621; Parks v. Kimes, 100 Ind. 148; McBryde v. Patterson, 78 N.C. 412; Marshall v. Railroad, 120 Mo. 275; Greene v. Greene, 126 Mo. 23. (2) Our statute which seeks to remove the common-law incapacities of bastards by conceding to them inheritable blood on their mother's side, as well as similar statutes of sister States, "are to be liberally construed by the courts, in favor of the class sought to be relieved, without reference to the common-law rules of feudal disabilities, for the framers of these acts looked to the common-law canons of descent, to avoid, not to imitate; to pull down, not to build up; all its principles are violated, its landmarks removed; its fences broken down; its traces obliterated; their basis was the statute of distributions and the civil law, and they were founded on the great principles of justice." Davis v. Rowe, supra; Stones v. Keeling, supra; Garland v. Harrison, supra; Bennett v. Toler, supra; Dickinson's Appeal, supra; Lewis v. Eutsler, supra; Marshall v. Railroad, supra.

Mason Talbutt and Edgar P. Mann for respondents.

(1) At the common law a bastard was nullius filius and could not inherit from any one. Kent's Comm. (3 Ed.), 413, 414; 1 Blackstone 459; Pratt v. Atwood, 108 Mass. 40; Bent v. St. Vrain, 30 Mo. 268. (2) The principle that all statutes in derogation of the common law must be strictly construed, is elementary, and the doctrine so well recognized in this State as to require no citation of authorities. In construing the phrase "illegitimates may inherit and transmit inheritance on the part of the mother," a strict construction of this statute, extending its provisions no further than absolutely required under the words of the act, is the rule. Jackson v. Jackson, 78 Ky. 390; Pratt v. Atwood, supra; Kent v. Barker, 2 Gray (Mass.) 535; Scroggin v. Allen, 2 Dana 363; Allen v. Ramsey, 1 Met. (Ky.) 635; Berry v. Owens, 5 Bush 452; Bent v. St. Vrain, supra; Gilbson v. Moulton, 2 Disney (Ohio) 158; Curtis v. Herrins, 11 Met. 294 (Mass.); Grubbs' App., 58 Pa. St. 55; Steckel's App., 64 Pa. St. 493; Stover v. Bosswell, 3 Dana 233; Suton v. Suton, 87 Ky. 216; Remington v. Lewis, 8 B. Mon. 606; Little v. Lake, 8 Ohio 289; Stevenson v. Sullivant, 5 Wheat. (U. S.) 260. (3) Interpretation given the language of section 2916, Revised Statutes 1899, is that the illegitimates inherit immediately from or through their mother, and that it does not connect the illegitimate through her collaterally with all who are of her blood, and that he does not take by inheritance from her collateral kindred. Bent v. St. Vrain, supra; Pratt v. Atwood, supra; Curtis v. Herrins, supra; Kent v. Barker, supra; Grubbs' App., supra; Steckel's App., supra; Remington v. Lewis, supra; Brown v. Kerby, 9 Humphrey (Tenn.) 460; Jackson v. Jackson, 78 Ky. 390; Williams v. Kimball, 35 Fla. 49; Croan v. Phelps, 14 Ky. Law 915; Stevenson v. Sullivant, supra; Hogan v. Hogan, 44 S.W. 953; Johnson v. Taliaferro, 45 L. R. A. 95.

OPINION

BRACE, P. J.

This is a suit for the partition of two hundred 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 August 26, 1896, Alvin W. Moore, his father and mother being then 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 (R. S. 1899, sec. 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" (R. S. 1899, sec. 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 their mother, in like manner as if they had been lawfully begotten of such mother" (R. S. 1825, p. 328, sec. 7), and continued on our statute books in that form until the revision of 1865, when the words in parenthesis, "and such mother may inherit from her bastard child or children," were inserted. [G. S. 1865, p. 518, sec. 9.]

The first reported case in which this statute was construed is the case of Stevenson's Heirs v. Sullivant, 18 U.S. 207, 5 Wheaton (18 U. S.) 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, 32 Ky. 363, 2 Dana (32 Ky.) 363, decided in 1834, in which the case of Stevenson's Heirs 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, 47 Ky. 606, 8 B. Monroe (47 Ky.) 606; Allen v. Ramsey's Heirs, 1 Metcalfe (58 Ky.) 635; Berry v. Owens' Heirs, 68 Ky. 452, 5 Bush (68 Ky.) 452; Jackson v. Jackson, 78 Ky. 390; Sutton v. Sutton, 87 Ky. 216, 8 S.W. 337.]

The next, is the case of Garland v. Harrison, 35 Va 368, 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's Heirs 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 material 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. . . . The only case which in any degree conflicts with this opinion, is the one cited, of Stevenson's Heirs v. Sullivant, 18 U.S. 207, 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 their mother. I can not, 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 said: 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 inheritance. . . . 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,...