Reynolds v. Hitchcock

• Decision Date: 01 December 1903
• Citation: 72 N.H. 340,56 A. 745
• Parties: REYNOLDS v. HITCHCOCK (two cases).
• Court: New Hampshire Supreme Court

56 A. 745

72 N.H. 340

REYNOLDS

v. HITCHCOCK (two cases).

Supreme Court of New Hampshire. Sullivan.

Dec. 1, 1903.

Exceptions from Superior Court; Wallace, Judge.

Petition and action at law by Minnie B. Reynolds against Edwin C. Hitchcock, administrator of the estate of George H. Wallingford, deceased. Decree awarding personal estate to another, and judgment in action at law for defendant, both subject to plaintiff's exceptions. Exceptions overruled.

George H. Wallingford died in December, 1901, leaving no relatives in the ascending and descending lines, no brother or sister, and no descendant of a brother or sister other than the plaintiff, who is the illegitimate child of the decedent's sister. The first proceeding is an appeal from a decree of the probate court awarding the personal estate to one Hitchcock, and the second is an action at law to recover the real estate of the decedent. The decree of the probate court was affirmed, and judgment was ordered for the defendants in the action at law, subject to the plaintiff's exceptions as to both rulings.

Henry N. Hurd, for plaintiff.

Hosea W. Parker and Ira Colby & Son, for defendants.

REMICK, J. The single question in this case is whether a bastard and his issue can inherit from his mother's collateral kindred. By the common law of England a bastard was the child of nobody. As he was related to nobody, he could neither inherit, nor, except to his own issue, transmit by inheritance. Dickinson's Appeal, 42 Conn. 491, 500, 19 Am. Rep. 553; 1 Bl. Com. 459; 4 Kent, 413; Schoul. Dom. Rel. 276, 277; Rogers, Dom. Rel. 579, 580. The common law of England in this respect became the common law of New Hampshire (Bow v. Nottingham, 1 N. H. 260, 261), and quite generally of the United States (24 Am. & Eng. Enc. Law [1st Ed.] 413). But "there is scarcely a state in the Union which has not departed widely from the harsh policy of the English common law." Schoul. Dom. Rel. 582; 24 Am. & Eng. Enc. Law (1st Ed.) 414. New Hampshire has not remained insensible to the considerations of humanity and justice which have actuated other states. In 1822 it was enacted "that the heirs of a bastard in the ascending and collateral lines shall be its mother and her heirs." Laws 1822, p. 9, c. 27, § 3. Little can be said in behalf of this act as a measure of humanity and justice toward the bastard. In providing that his mother and her heirs should be his heirs, and leaving him still altogether incapable of inheriting, the Legislature would seem to have been thinking more of his property than of him. "If a discrimination was to be made, and the right of descent granted to one party only, then surely the provision should have been directly the reverse." 4 Kent, 417. If the law will not interpose "for the benefit of the child, the only innocent party, surely it will not allow the guilty to found a claim of property upon a relation to the child whom they have exposed to these disabilities and privations." Cooley v. Dewey, 4 Pick. 93, 95, 16 Am. Dec. 326. The Legislature soon awakened to this view of the subject and enacted "that illegitimate children shall be the heirs of the mother, she dying without leaving legitimate issue." Laws 1824, p. 44, c. 79, § 1. While this act shows a little consideration for the illegitimate, discrimination in favor of the guilty parent and against the innocent offspring is still apparent. By it the mother and her heirs are made his heirs unconditionally, while he is permitted to inherit from the mother only in case she is without legitimate issue. In 1845 it was enacted that, "when the mother of a bastard has deceased, her real estate shall descend, and her personal shall be distributed, by decree of the judge of probate, in equal shares to her legitimate and illegitimate children and their issue." Laws 1845, p. 151, c. 238, § 2. Illegitimates were thus placed upon an equality with legitimates with respect to right of inheritance from the mother. The result of the legislation in New Hampshire upon this subject is now embodied in sections 4, 5, c. 196, of the Public Statutes of 1901, which are as follows: "The heirrs of a bastard, in the ascending and collateral lines, shall be the mother and her heirs; and the bastards and their issue shall be heirs of the mother. When the mother of a bastard dies, her real estate shall descend and her personal estate be distributed in equal shares to her legitimate and illegitimate children and their Issue." It would seem to be beyond question that by section 4 not only the mother, but her kindred, both lineal and collateral, may inherit from the bastard. The statute makes the mother's kindred kin to the bastard for the purpose of inheritance from him. Had the plaintiff died before the defendant's intestate, leaving property, the latter would have inherited the same, as next of kin, notwithstanding the plaintiffs illegitimacy. Parkman v. McCarthy, 149 Mass. 502, 503, 21 N. E. 760. But it is contended that, notwithstanding collaterals in the ascending line may inherit from the bastard, the bastard's right of inheritance is limited to the estate of the mother. It is not easy to believe, especially in view of the superior claim of the innocent child, that the lawmaker would designedly give to the mother's kindred the right to inherit from her illegitimate child, as kin to the child, and at the same time deny to the child kinship with her kindred for the purpose of inheritance by him from them. But the argument to be drawn from this source is much weakened by the fact that the first act of the New Hampshire Legislature on this subject gave the mother right of inheritance from the bastard, while denying to the bastard right of inheritance from her; also by the fact that like discrimination has been deliberately and unequivocally made by the Legislatures in other jurisdictions. Rev. St. N. Y. 1829, vol. 1, pp. 753, 754, part 2, c. 2, §§ 14, 19; Rev. St. Mass. 1836, c. 61, § 2; Laws Mass. 1882, p. 97, c. 132; 4 Kent, 413; Pratt v. Atwood, 108 Mass. 40, 41; Parkman v. McCarthy, 149 Mass. 502, 503, 21 N. E. 760; Matter of Mericlo, 63 How. Prac. 62.

In view of the fact that our own and the Legislatures of other states have deliberately provided that the mother and her kindred should inherit from the mother's illegitimate child, while denying to the illegitimate child the right to inherit from the mother or her kindred, we cannot safely assume that the Legislature, by section 4, c. 196, of our Public Statutes of 1901, intended to give the bastard the same right of inheritance from the mother's kindred that the mother's kindred have to inherit from him, merely because that seems to be the more natural and probable course. On the contrary, with such illustrations before us, we must assume that the Legislature may have designed the very thing counsel for the plaintiff contends is so improbable,...