Neil's Appeal

• Decision Date: 28 November 1879
• Citation: 92 Pa. 193
• Parties: Jane Neil's Appeal.
• Court: Pennsylvania Supreme Court

Page 193

92 Pa. 193

Jane Neil's Appeal.

Supreme Court of Pennsylvania.

November 19, 1879.

November 28, 1879.

November 19th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, and TRUNKEY JJ. STERRETT and GREEN, JJ., absent

Appeal from the Orphans' Court of Washington county: Of October and November Term 1879, No. 298.

Dougan & Todd, for appellant.—The mother contemplated by the Act of 1833, was competent — qualified; fit; having legal power — because of her propinquity to the intestate; the mother of an illegitimate is only a creature of the legislative will, designed to answer a particular emergency, and having the passive attribute of capability. We contend that, in passing the Act of 1855, the legislature did not intend to make the claim of a mother of an illegitimate as to realty, paramount to the claim of his wife. Giving such a mother inheritable blood — endowing her with capacity to take at all — and investing her with the qualifications requisite to defeat the operation of the tenth section of the Act of 1833, are vastly different things. The words mother and heir are not synonymous as they are used in the Acts of 1833 and 1855.

If a person can be found competent to inherit realty under the Act of April 8th 1833, the law gives that person the preference. If no such person can be found, in the case of illegitimates, the realty is transmitted under the Act of 1855. If, indeed, the legal effect of the Act of 1855 was to make a bastard the son of his mother, and to make the woman who gave him birth, his mother, then are illegitimate children legitimatized, and the mother of an illegitimate is "competent as aforesaid." That such was not the intent of the act is clearly shown in Grubb's Appeal, 8 P. F. Smith 55; Steckel's Appeal, 14 Id. 493; Woltemate's Appeal, 5 Norris 219.

Had the Act of 1855 given the illegitimate a mother — legitimated him — such a mother might have been competent to take his realty under the fifth section of the Act of 1833; she would have been the species of heir contemplated in that law. However, as the illegitimate remains as he was before the Act of 1855 was passed, having no mother, the award of his realty to one who does not answer the requirement of the fifth section, is not only a violation of the proprieties of legal reasoning, but it is introducing, without apparent warrant, an element not in harmony with the intestate system.

Freeman Brady, Jr., for appellee.—There were common-law disabilities engrafted on our intestate system. The legislature intended to remove these, and apt words were used to accomplish this intent. The act gave to the illegitimate henceforth a name, that of his mother, and endowed him with inheritable capacity, but confined his right to take and transmit estates...