Phillips v. Townsend
| Decision Date | 29 March 1945 |
| Docket Number | 17291. |
| Citation | 60 N.E.2d 297 |
| Parties | PHILLIPS v. TOWNSEND et al. [*]) |
| Court | Indiana Appellate Court |
Appeal from Rush Circuit Court; William F. Marshall, Judge.
Proceeding in the matter of the report filed by Eber Townsend administrator of the estate of Sarah A. Bailey, deceased, in final settlement of the estate, to which Rell R. Phillips filed exceptions. From an adverse judgment, the exceptant appeals, and the administrator files cross-errors.
Judgment reversed with instructions.
See also, Ind.App., 56 N.E.2d 856.
Chauncey W. Duncan and Kiplinger & Kiplinger, all of Rushville for appellant.
David A. Myers and Tremain, Woodfill & Goddard, all of Greensburg, for appellees.
This cause reaches us on appeal from a judgment against appellant upon his petition in proof of heirship presented to the court below in the form of exceptions to the final report of appellee Townsend as Administrator aforesaid. Appellee's decedent, Sarah A. Bailey, died without leaving surviving either father or mother, husband, child, children, or the descendants of a child or children, but left surviving nieces, nephews, grand-nieces and grandnephews and the appellant, Rell R. Phillips, who claims to be a nephew. Appellant's father was a brother of decedent Sarah A. Bailey but died intestate prior to her death, leaving as his sole survivor and heir at law the appellant, his illegitimate child, who, however, had been duly acknowledged by his father as his own child during the father's lifetime and who, as such duly acknowledged illegitimate child, had inherited all of his father's estate both real and personal.
The evidence appears by stipulations and presents the undisputed facts as set out above.
Appellant assigns as error the overruling of his motion for a new trial which specifies (1) insufficiency of the evidence to sustain the decision (2) that the decision is contrary to law.
The first specification presents no question since, so far as appellant is concerned, the judgment was purely negative. McKee v. Mutual Life Ins. Co. of New York, 1943, 222 Ind. 10, 51 N.E.2d 474.
The second involves a consideration and construction of Acts 1901, ch. 126, Sec. 1, Burns' 1933, Sec. 6-2309, the pertinent portion of which is as follows:
'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.'
The proviso which follows limits the application of the above to cases where no legitimate child or children, or their descendants, survive, as in the instant case.
Appellant asserts the right, by virtue of the statute (supra), to inherit, through his deceased parent, that portion of the estate of Sarah A. Bailey which he would have inherited under the laws of descent had he been the legitimate child of her brother, born in wedlock.
At the outset we are confronted with the recent case of Hall v. Fivecoat, 110 Ind.App. 704, 38 N.E.2d 905, decided by this court in January of 1942, wherein the right now claimed by appellant was denied. We have also in mind the case of Wilson v. Bass, 1919, 70 Ind.App. 116, 118 N.E. 379, and others wherein it also has been held that Sec. 6-2309, supra, does not attempt to created an heir of anyone except the putative father.
On the other side of the controversy we have cases represented by that of Morin v. Holliday, 1906, 39 Ind.App. 201, 77 N.E. 861; and Selby v. Brenton, 1921, 75 Ind.App. 248, 130 N.E. 448, holding that said Sec. 6-2309 puts illegitimates coming within its provisions in the line of inheritance and casts upon them the same rights as legitimates born in lawful wedlock, though it must be said, under circumstances readily distinguishable from those disclosed in the case of Hall v. Fivecoat, supra and those of the instant case.
In construing the statute under consideration here (Burns' 1933, § 6-2309, supra), we have in mind also that it is in derogation of common law which, in the purblindness of its legal fictions, decreed an illegitimate child to be nullius filius, the child of nobody, and, as such, entitled to no rights of heritage; but the rule requiring strict construction of such a statute in no wise requires that we be bound by its letter as against its true intent, for the intent is the vital part, the essence of the law and the primary rule of construction is to ascertain and give effect to that intent and this primary rule must prevail even in the case of a statute thus in derogation of the common law. Smith v. Andrew, 1912, 50 Ind.App. 602, 98 N.E. 734; Lime City Building, Loan & Savings Ass'n v. Black, 1894, 136 Ind. 544, 35 N.E. 829. The statute presently before us being remedial in character, the rule applies with particular force.
So in pursuance of the general object of giving effect to the intention of the legislature the courts are not controlled by the literal meaning of the language of the statute, but the spirit or intention of the law prevails over the letter thereof, it being generally recognized that whatever is within the spirit of the statute is within the statute although it is not within the letter thereof, while that which is within the letter but not within the spirit is not within the statute. Ramsey v. Yount, 1918, 68 Ind.App. 378, 120 N.E. 618, and see also 59 C.J. 964-966.
We are convinced, after examination of the authorities bearing upon the law of descent, as expressed by the enactments on that subject, that such statutes are in pari materia. See Avery v. Vail, 1915, 60 Ind.App. 99, 108 N.E. 599; Humphries v. Davis, 1885, 100 Ind. 274, 50 Am.Rep. 784. This being true, therefore, the rule is that all consistent statutes relating to that subject which can stand together though enacted at different dates, are treated prospectively and construed together as though they constituted one act, the object being to ascertain and carry into effect the intention of the legislature, proceeding upon the supposition that the several statutes relating to that subject were governed by one spirit and policy and were intended to be consistent and harmonious in their several parts and provisions. See 25 R.C.L. 1060.
Moreover, in the construction of statutes not strictly in pari materia there is the further rule that the court will seek to discover and carry out the intention of the legislature in its enactment and in the search for that intention will look to each and every part of the statute, to the circumstances under which it was enacted, to the old law upon the subject, if any, to other statutes upon the same subject or relative subjects, whether in force or repealed, to contemporaneous legislative history and to the evils and mischiefs to be remedied. Haynes Automobile Co. v. City of Kokomo, 1917, 186 Ind. 9, 114 N.E. 758; Hughes v. Indiana Traction Co., 1914, 57 Ind.App. 202, 105 N.E. 537.
Considering the statute now before us in the light of the principles set out supra, we cannot and do not disregard the fact that the right to take property by descent is a mere privilege or creature of law and purely statutory in this state. However, this right has been granted by law out of consideration for public policy and while the law of descent necessarily consists of a set of arbitrary rules, yet these rules take cognizance of the natural law of consanguinity or of blood. Henry v. Thomas, Executor, 1889, 118 Ind. 23, 20 N.E. 519; 26 C.J.S., Descent and Distribution, § 2, p. 996.
Nor can we refuse cognizance of the fact that the acknowledged illegitimate child contemplated by the provisions of Sec. 6-2309, supra, is one springing from the very bloodstream of the acknowledging father, that same bloodstream which quickens the lives and being of that father's father and of that father's brothers and sisters. No doctrine of jurisprudence or system of philosophy nor art of sophistry can alter or obscure the fact that such a child, by right of blood, is the child of that father and kinsman of all who share the blood. There can be no doubt that the framers of the statute here involved were as well aware of this uncontrovertible fact as are we.
The statute presently before us became effective May 15, 1901. It superseded and repealed an act in force since 1853 (Acts 1853, p. 78) under which all direct heirs, including collaterals, inherited the estate of an intestate male in preference to his acknowledged illegitimates. Contemplating an act of humanity, remedial in character, and quickened by good conscience and advancing civilization, the legislature of 1901 intended to remove, so far as possible, the ancient blight and curse upon the outcasts of the common law and to clothe them with rights of inheritance under such conditions as it might impose.
At the time of this enactment in 1901 there stood upon the statute books, where it still appears, the following law of 1852:
'If a man shall marry the mother of an illegitimate child, and acknowledge it as his own, such child shall be deemed legitimate.' 1 R.S. 1852, ch. 27, Sec. 9, p. 248, now Sec. 6-2310, Burns' 1933.
Decisions construing this act are to the effect that the legal relationship of father and son is established by compliance therewith even though the man is not actually the father of the illegitimate child. Franklin v. Lee, 1902, 30 Ind.App. 31, 62 N.E. 78; Bailey v. Boyd, 1877, 59 Ind. 292; Selby v. Brenton, 1921, 75 Ind.App. 248 130 N.E. 448. In such a case the child, a total alien to the bloodstream of the man, is granted full...
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