Morin v. Holliday
| Decision Date | 08 May 1906 |
| Docket Number | 5,617 |
| Citation | 77 N.E. 861,39 Ind.App. 201 |
| Parties | MORIN ET AL. v. HOLLIDAY ET AL |
| Court | Indiana Appellate Court |
Rehearing denied October 3, 1906. Transfer denied December 13, 1906.
From Franklin Circuit Court; Ferdinand S. Swift, Judge.
Suit by John Holliday against John C. Morin and others. From a decree for plaintiff, defendants appeal.
Reversed.
L. J Crawford, Lawrence Maxwell and Edgar O'Hair, for appellants.
Albert T. Root, Thomas P. Bodkin, H. J. Milligan, Samuel B. Hammel Coppock & Coppock, John K. Love and F. M. Alexander, for appellees.
This was a suit to quiet title to real estate, in which John Holliday was plaintiff, and all of the appellants were defendants. The complaint was in a single paragraph, upon which issues were joined by answers and replies. The appellant John C. Morin filed a cross-complaint, to which a demurrer was sustained. The cause was tried by the court, and resulted in a finding and judgment for the plaintiff below. Overruling appellants' motion for a new trial, and sustaining the demurrer to the cross-complaint of John C. Morin, are assigned as errors. After judgment, and before the appeal was perfected, John Holliday died, and the appellees were substituted in his stead. The appellee Catherine Holliday is the surviving widow, and the appellee Angeline Holliday is the surviving mother of John Holliday, and they are his sole and only heirs. The appellants John C. Morin, Annie M. Johnson, George E. Morin, and Albert C. Morin are the surviving children and heirs of Clara Morin, deceased. The appellant Ida May Morin is the wife of John C. Morin; the appellant Frank G. Johnson is the husband of Annie M. Johnson; Ida Morin is the wife of Albert C. Morin; and they were made parties below and appellants here on account of their marital relations.
The facts upon which the rights of the respective parties must be determined are as follows: John Cline died intestate on August 19, 1902, and was at the time of his death the owner in fee simple of the real estate in controversy. He left surviving him no widow, no legitimate child or children, or descendants of legitimate children, no father, mother, grandfather, or grandmother, no brothers and no sisters. He left surviving him the plaintiff below, John Holliday, his illegitimate child, and the only child surviving him. From the birth of said Holliday said Cline, up to the time of his death, openly acknowledged, received, reared, educated, and supported him as his own child. Appellants John C., George E., and Albert C. Morin, and Annie M. Johnson, were the only legitimate children of Clara Morin, who was the illegitimate child of John Cline. Said Clara Morin died intestate June 7, 1892, leaving the above and foregoing named children surviving her. From the birth of said Clara Morin until her death said Cline openly acknowledged, received, reared, educated, and supported her as his own child. Until the death of said Cline he at all times openly acknowledged, received, and claimed the above named children of Clara Morin as his grandchildren. Upon these facts and the statute to which we will later refer appellees insist that, as the mother of appellants died before her putative father, they have no interest in the real estate; that upon his death the title vested in John Holliday by descent, and that upon the latter's death the entire estate went to them as the only heirs of Holliday. On the other hand, appellants claim, as the legitimate heirs of Clara Morin, that they are entitled to an undivided one-half interest therein.
The statute upon which the contending parties base their right to inherit from John Cline is section one of the act approved March 9, 1901 (Acts 1901, p. 288), § 2630a Burns 1901), which is as follows: "That the illegitimate child or children of any man dying intestate and having acknowledged such child or children during his lifetime as his own, shall inherit his estate, both real and personal, and shall be deemed and taken to be the heir or heirs of such intestate in the same manner and to the same extent as if such child or children had been legitimate: Provided, that the testimony of the mother of such child or children shall in no case be received to establish the fact of such acknowledgment; and be it further provided, that the provisions of this act shall not apply where the father of the illegitimate child, at his death, had surviving legitimate children or descendants of legitimate children." Upon the facts recited and this statute, there is no doubt that upon the death of John Cline, his illegitimate son, John Holliday stood in the line of inheritance from him. Appellants concede this, but assert that they are also in the line of inheritance, and that John Holliday inherited only the undivided one-half of the real estate, and that they inherited the other undivided one-half. This court, in two recent cases, has had occasion to construe this statute upon facts similar to those in the case at bar, as to the right of an illegitimate child to inherit from its putative father, in each of which cases such right is affirmed. Townsend v. Meneley (1906), 37 Ind.App. 127, 74 N.E. 274; Daggy v. Wells (1906), 38 Ind.App. 27, 76 N.E. 524.
In the case we are now considering, if Clara Morin, the illegitimate daughter of John Cline, had survived him, she would have been in the same line of inheritance as John Holliday, and they would have taken the real estate under the statute as tenants in common. She died, however, about nine years before the enactment of this statute, and over ten years before the death of her putative father. It is clear that at the time of her death she had acquired no rights in and to any of the property, either real or personal, of John Cline. Inheritance under the statute can only follow upon the death of the ancestor.
The question, therefore, for decision, is this: Does the statute give to the children of Clara Morin the right to inherit the interest in the real estate which she would have inherited had she survived her putative father? This question opens a new field for legal exploration in this State, and counsel have not called our attention, nor has our research led us, to any case in other jurisdictions where the question has been decided. It is, therefore, a question of first impression.
The entire scheme of descents in this State is regulated and controlled by statute. The degrees of kindred are computed according to the rules of civil law, and the statute of descent covers every conceivable state of circumstances that can surround the descent of property. Neither the common law nor the civil law canons of descent, as such, were ever in force in this State. Cloud v. Bruce (1878), 61 Ind. 171; Bruce v. Bissell (1889), 119 Ind. 525, 12 Am. St. 436, 22 N.E. 4.
If appellants are entitled to share in the real estate in controversy under the law of descent, they possess such right as direct heirs of John Cline, and not as heirs of Clara Morin, for she died before her putative father, and hence had acquired no title under the statute. There cannot descend to a child from its parent any interest in property, either real or personal, that the latter did not possess.
The statute upon which the contending parties base their rights of inheriting from John Cline makes illegitimate children "heirs" of their putative father under certain conditions: Those conditions are: (1) The acknowledgment by the father during his lifetime that such child or children is or are his own; (2) that the father, at his death, left surviving no legitimate children, or descendants of legitimate children.
At common law an heir is one who is born or begotten in lawful wedlock, and upon whom the law casts an estate in lands, tenements, or hereditaments, immediately upon the death of his ancestor.
15 Am. and Eng. Ency. Law (2d ed.), 318, 319.
In Kelley v. Vigas (1884), 112 Ill. 242, 54 Am. Rep. 235, it is said:
The word "heir" in its legal import or signification, "is not a word of purchase, nor a designatio personae, but is nomen collectivum, and used as a word of limitation, and will carry the land devised or conveyed not only to the immediate heir or issue, but to all those who descend from the devisee or grantee." 15 Am. and Eng. Ency. Law (2d ed.), 320, and authorities there cited.
It is manifestly clear that no person can sustain the character of heir, properly so called, in the lifetime of the ancestor. This rule rests upon and is embodied in the maxim "Nemo est haeres viventis." 15 Am. and Eng. Ency. Law (2d ed.), 326, and authorities there cited.
It seems clear that upon the death of an ancestor an "heir," as the word is here used, is always appointed by law. The title is called into existence by the death of an ancestor, and its rights are governed by the law in force at the time of such death. Townsend v Meneley, supra. It being within the province of the legislature to determine the rules of inheritance in accordance with which the property of persons subsequently dying shall be distributed, it is certain that it may provide, as it sees fit, as to who shall be heirs. There is no vested right to inherit until the death...
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