Scroggin v. Allan et al.
| Decision Date | 31 October 1834 |
| Citation | 32 Ky. 363 |
| Court | Kentucky Court of Appeals |
| Parties | Scroggin <I>vs.</I> Allan <I>et. al.</I> |
Mr. Haggin and Messrs. Sanders and Depew for Appellant: Mr. John Trimble for Appellee.
FROM THE CIRCUIT COURT FOR HARRISON COUNTY.
JAMES T. EDGAR, the son of Henry Edgar, a bastard, having derived a tract of land by descent from his father, died, under the age of twenty one, without issue; and the land is now the subject of contest, between the mother of James T. Edgar, and a purchaser from the legitimate children of Henry Edgar's mother. It does not distinctly appear, which died first — James T. Edgar, or his paternal grandmother; but the inference is that she did.
The case turns upon the question, whether the children of Henry Edgar's mother, are his brothers and sisters, within the meaning of the fifth section of the statute of descents; which provides, that, where an infant shall die without issue, having title to real estate, derived by descent from the father, the mother of such infant shall not succeed thereto, if there be living any brother or sister of the father.
As by the rules of the common law, a bastard had no inheritable blood, and could neither receive from, nor transmit an inheritance to, his father, mother, brothers or sisters, it is very clear there can be no pretence for the claim here asserted in behalf of the children of Henry Edgar's mother, if those rules are still in force. For the act can only be presumed to speak in reference to such brothers and sisters, as would have inherited, provided the father of the infant had died intestate and childless. But, it is supposed, that the eighteenth section of the statute of descents has changed the common law rules as to bastards, in this particular.
The same clause in the Virginia statute of descents, came under the consideration of the Supreme Court of the United States, in the case of Stevenson's heirs vs. Sullivant, 5 Whea. 207, in a case exactly like this; and it was construed by that court, not to transfer the estate of a legitimate child, to its bastard brothers and sisters by the mother's side. The true legal exposition of the words used, was held to be, that bastards shall have a capacity to take by descent, immediately from or through their mother, in the ascending line, and of transmitting the same to their line, as descendants, in like manner as if they were legitimate. The object of the legislature was deemed to have been, to remove the impediment to the transmission of inheritable blood from the bastard, in the descending line, so far as regards a maternal inheritance, and to give him a capacity to inherit, in the ascending line, from and through his mother. "But," says the court, "although her children are, in these respects, quasi legitimate, they are, nevertheless, in all others bastards, and as such, they have, and can have, neither father, brothers or sisters."
To permit bastard brothers and sisters to inherit from each other, in the manner and to the extent contended for, would require a paraphrase of the statute, something like this. "Bastards shall be capable of inheriting from their mother and her kindred, and she and her bastard children, and other kindred, shall be capable of inheriting from her bastard children, in the same manner as if the bastards had been lawfully begotten of such mother." The language used is so unlike this, and falls so far short of it, that it appears to us a vain effort to attempt to construe the two modes of expression, into terms of equivalent import. But even though the language used could be so far strained, as to be made to come up to the supposed legislative intent, yet, as the construction of the Supreme Court gives legal effect to all the words used, and as there would be danger of exceeding the legislative intention by straining them beyond their fair or necessary legal import, we should still deem it safest, to adopt the restricted interpretation of that court.
The judgment must be affirmed, with costs — Judge Underwood dissenting.
JUDGE UNDERWOOD, not concurring with the other members of the Court, in the foregoing decision delivered a separate Opinion and argument, as follows: —
I cannot agree to the interpretation now, for the first time, given by this court, to the eighteenth section of the act of December, 1796, directing the course of descents. In my opinion, the children of the same mother, who are bastards, may, under a correct exposition of that section, take and transmit estates to and from each other, by descent, in the same manner they might and would do, were they the lawfully begotten children of the mother. If they were lawfully begotten of such mother, then they would be brothers and sisters, and as such, the fourth and fifth sections of the act would operate in their behalf. To my mind, the eighteenth section has so clear a meaning, growing out of the language used, that were it not for the case of Stevenson's heirs vs. Sullivant, I should think there could be no room for doubt.
The first clause of the section provides, that "in making title by descent it shall be no bar to a demandant, that any ancestor through whom he derives his descent from the intestate, is or hath been an alien." The rule here laid down was intended, no doubt, to operate in favor of legitimates. In virtue of it, brothers and sisters might inherit from a deceased, intestate brother or sister, notwithstanding the father or mother, by whom the relationship existed, was at the time or had been, an alien. The common law rule was "no one can inherit to another who derives his blood or relationship to the other through an alien." It was the object of the statute to annul this rule, and allow kindred to inherit one to another, notwithstanding the relationship was made out through or under an alien.
The second clause of the section provides: — "Bastards also, shall be capable of inheriting or transmitting inheritance on the part of their mother, in like manner as if they had been lawfully begotten of such mother." What common law rules did this clause of the statute intend to repeal? I answer, two. First, that which declares that, "a bastard shall never take by descent;" and secondly, that which declares, that "a bastard can have no heir but the issue of his body." These were the common law disabilities. The legislature intended to remove them; but how far? Totally on the side of the mother, or ex parte materna; but to no extent on the part of the father. In nature, a bastard must have a father; in law, he has none. Coke says, a bastard is nullius filius. The statute intended to give him inheritable blood to some extent. What is the limit? "He shall be capable of inheriting, on the part of the mother, in like manner as if he had been lawfully begotten." What does this mean? It certainly intends to make him legitimate, to all intents and purposes, so far as it respects taking estates by descent, on the part of the mother. Blood is the principle of descent. Here the statute has given a new capacity to the bastard; it has infused into him inheritable blood, contrary to the common law maxim, that "a bastard shall never take by descent." But inheritable blood has not been given without qualification; it is confined to the part of the mother: for if it had not been so confined, the statute would likewise have repealed the maxim, that a bastard is filius nullius, and let him in to share inheritances on the part of the father. In thus giving inheritable blood on the part of the mother, the statute has made no distinction between lineal and...
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