Smith v. Garber

• Decision Date: 18 December 1918
• Docket Number: No. 12336.,12336.
• Citation: 121 N.E. 173,286 Ill. 67
• Parties: SMITH et al. v. GARBER.
• Court: Illinois Supreme Court

286 Ill. 67

121 N.E. 173

SMITH et al.

v.GARBER.

No. 12336.

Supreme Court of Illinois.

Dec. 18, 1918.

Appeal from Circuit Court, Carroll County; James S. Baume, Judge.

Bill by Frederick S. Smith and others against Dio L. Garber for construction of a will. From a decree of the circuit court dismissing the bill for want of equity, plaintiffs appeal. Affirmed.E. E. Wingert, of Dixon, and Frederick S. Smith and A. F. Wingert, both of Mt. Carroll, for appellants.

F. J. Stransky, of Savannah, for appellee.

CARTER, J.

This is an appeal from a decree of the circuit court of Carroll county dismissing for want of equity a bill filed for the construction of the will of Caroline Mark as to the interest taken thereunder by an illegitimate child of one of the devisees.

Caroline Mark was a woman of considerable wealth, residing in Mt. Carroll, in said county, at the time of her death, in 1900. Her estate consisted of some 1,600 acres of land in said county and about $350,000 worth of personal property. Her will was dated in 1894 and was duly probated in the county court of said county. Under the provisions thereof the main portion of the personal property was given to trustees in trust for the maintenance of a home for aged women from Carroll and surrounding counties. A large portion of the real estate was given to various of her nephews and nieces and other relatives for life, and the remainder in said various tracts of land, after the death of the life tenant or tenants of such tracts, was given to the child or children of a certain one or more of the life tenants.

The sole question involved in this proceeding is as to the proper construction that should be given to clause 7 of said will, as to whether or not Dio L. Garber, the illegitimate child of Jane Gable, was intended to be included by the testatrix by the words ‘the child or children of Jane Gable,’ as used in the seventh clause of the will. Said clause, so far as it bears on this question, reads as follows:

‘Seventh. I give and devise unto William Russell, Nathaniel Russell and Jane Gable, brothers and sister, now of Butler, in the State of Ohio, the following described land, to wit [describing it], for and during their joint lives and the lives or life of the survivors or survivor of them, to be held and used by them, and the survivors or survivor of them, as they or he or she shall see fit, except that the same shall not be mortgaged or otherwise incumbered. From and after the death of the survivor of them, it is my will, and I hereby direct, that said land shall go to the child or children of Jane Gable and their heirs forever, in equal shares, provided that at the death of the survivor a child or children of hers shall be living. In case no child or children of hers shall be living, then it is my will that said land shall revert to and become a part of my estate hereinbefore devised to my said trustees and their successors or successor, in trust for the purpose hereinafter mentioned and fully set out.’

Counsel for all parties to the litigation agree that, if appellee, Garber, does not take this land, it will become a part of the trust estate for the benefit of said home for aged women. It is stipulated in the record that neither William nor Nathaniel Russell was ever married or had children; that William died in 1904 and Nathaniel in 1914; that Jane Gable was born in 1854 and died July 16, 1917; that appellee was a child of Jane Gable, born January 26, 1874, and was her only child at the time the will was made, in 1894; that Jame Gable never had any other child born to her; that appellee's father was Michael Garber; that Jane Gable and Michael Garber were never married, and that appellee was born out of lawful wedlock; that a few days after his birth he was taken by Michael Garber's folks, and was raised and maintained by them thereafter, and was never legally adopted by Jane Gable; that Jane Gable in 1892 was lawfully married to William Gable, who died in 1904; and that thereafter she married William Countryman, who survived her.

Counsel for both parties discuss at some length in their briefs the various decisions under the common law as to whether an illegitimate child is included within the term ‘child’ used in a will. The rules laid down in the English cases and the earlier cases in this country are set forth at some length in Jarman on Wills (volume 2, .¨ 217), and are to the effect:

That the use of the word ‘children,’ without further identifying the objects of the gift, will not be taken to include illegitimate children, and that ‘it is clear that the fact of there being no other than illegitimate children when the will taken effect or at any other period, so that the gift, if confined to legitimate children, has evidently failed for want of objects, does not warrant the application of the word ‘children’ to the former objects.'

Another learned author in this country says:

‘In the absence of evidence of a contrary intention, it is conclusively settled that only legitimate children are entitled to take under a provision giving property to children simpliciter. * * * It is as though the word ‘legitimate’ were written in the will before the word ‘children,’ ‘sons,’ ‘issue,’ etc. This rule of construction is based upon the maxim of the civil law, ‘Qui ex damnato coitu nascuntur, inter liberos non computentur,’ and although natural children who have acquired the repuration of being the children of the testator or of the person mentioned in the will prior to the date of its execution may under some circumstances be capable of taking under the description of ‘children,’ yet they are not permitted to take upon mere conjecture of intention.' 2 Underhill on Wills, § 570.

‘Natural children having acquired the reputation of being the children of a particular person prior to the date of the will are capable of taking under the description of ‘children.’ * * * But the will itself must show the testator's intention to include them under this description, either by express designation or necessary implication.' 2 Williams on Executors (7th Am. Ed.) 364.

Under the common-law rule it seems quite obvious that appellee could not be included in the term ‘child’ as used in the will now under consideration. But most of the authorities just quoted are based on the theory of the common law that an illegitimate child was of kin to no one.

‘Sections 2 and 3 of our statute of descent were enacted for the purpose of obviating the undue severity of the common law and of erecting a rule more consonant with justice to an innocent and unfortunate class. Section 2 * * * abrogates the common law rule that an illegitimate is the child of nobody, and could not take property by inheritance, even from its own mother.’ Robinson v. Ruprecht, 191 Ill. 424, 61 N. E. 631.

Under the common law an illegitimate was considered filius nullius. 1 Blackstone's Com. *459. Under the statutes passed in this state in relation to illegitimate children, ‘an illegitimate person is recognized as the child of his mother, as regards the descent of property.’ Miller v. Williams, 66 Ill. 91. In Bales v. Elder, 118 Ill. 436, 11 N. E. 421, this court said that it was the purpose of the Legislature in enacting the statute as to illegitimate children to remove the common-law disability of inheritance and place them more nearly on a level with legitimates. See also, Jenkins v. Drane, 121 Ill. 217, 12 N. E. 684;Chambers v. Chambers, 249 Ill. 126, 94 N. E. 108. In Robinson v. Ruprecht, supra, this court said (191 Ill. p. 433, 61 N. E. 634):

‘The rule [of the common law] visited the sins of the parents upon the unoffending offspring, and could not long survive the truer sense of justice and broader sense of charity that came with the advancing enlightenment and civilization of the race.’

While our statute does not state in so many words that an illegitimate child shall be considered the ‘child’ of its mother, but only that it shall be the ‘heir’ of its mother (Hurd's Stat. 1917, p. 1073), yet, as indicated by the reasoning of the decisions of this court heretofore referred to, we are of the opinion that the spirit and intention of these statutory changes was that an illegitimate child should be considered the child of its mother; that the harsh restrictions placed upon such a child by the common law for the wrongs of its parents should be softened; that from being the child of no person it should become the child of its mother. The testator is presumed to know...