Pace v. Klink

• Decision Date: 31 January 1874
• Parties: John W. Pace, administrator, et al., plaintiffs in error. v. Charles A. Klink, administrator, et al., defendants in error.
• Court: Georgia Supreme Court

51 Ga. 221

John W. Pace, administrator, et al., plaintiffs in error. v. Charles A. Klink, administrator, et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1874.)

Parent and child. Distribution. Representation. Before Judge James Johnson. Muscogee Superior Court. May Term, 1873.

The charge of the court, taken into connection with the facts set forth in the above head-note, reports this case. The court charged the jury "that the act of 1850, to change the name of Mathew R. Brown to Mathew Downer, and to make him a legal heir, did not make the children of Mathew Downer the heirs of Joseph Downer, the said Mathew, their father, having died before the said Joseph." To this charge the complainant excepted.

A verdict was returned in accordance therewith for the defendant.

Error is assigned upon the above ground of exception.

Henry L. Benning; J. M. McNeil, for plaintiffs in error.

Ingram & Crawford; Chappell & Russell; Thornton & Grimes, for defendants.

McCay, Judge.

The question in this case turns entirely upon the meaning of the act of 1850. The presumption is that it was passed at the request of Joseph Downer, and it is to be construed in that view, since it cannot for a moment be supposed that the legislature would pass such a law except at the request of the person whose estate and family it operated upon. The act gives to Mathew not only the name of Downer, but declares he shall have all the rights and privileges that he would have had had he been born the lawful son of the said Joseph. Was *it one of these rights and privileges that his children should represent him in the disposition of the estate of Joseph Downer? Would he be clothed with the full relation of a son to Joseph, if dying before him, he could not rely upon the children of his loins standing in his place and representing him in the estate of that father as they would have done had Downer been in fact the father? It is not a question of heritable blood. Mathew was by the act made the son, he was clothed with the rights of a son, and had cast upon him the duties of a son. He was made the heir, and if his adopted father had died first he would have taken as son and heir.

An heir is one who takes an estate by operations of law on the death of the owner. It is not necessary that the heir shall be of the blood of the deceased. Our statute, in terms, makes the wife and the husband heirs of each other, and if the law were to provide that at the death of any one his estate should go to his nearest neighbor, that neighbor would be the heir. The act of 1850, declaring Mathew to have the same rights and privileges as he would have had had he been born the son of Joseph, goes further and declares in terms that he shall be capable "of taking, receiving and inheriting all manner of property under the statute of distributions, so far as relates to the estate of said Joseph Downer." Taking, therefore, both clauses of the act together, Mathew was, so far as Joseph and his estate was concerned, made the lawful son and lawful heir of Joseph. It was contended, in argument, that by the common law an heir must of necessity be of the blood of the ancestor. In the feudal sense of the words that is perhaps true. Indeed, technically, no one, not even a child, is heir by the common law, except as to lands. And that heir is the eldest son who, under the grant of the lord who gave the estate, takes the place of the father in the service under which the estate is holden. But under our law all take under the statute of distributions; land as well as personal estate is assets—and heirs and distributees are synonymous words. The very act under...