State v. Chavez

• Decision Date: 12 September 1938
• Docket Number: No. 4389.,4389.
• Citation: 42 N.M. 569,82 P.2d 900
• Parties: STATE et al.v.CHAVEZ et al.
• Court: New Mexico Supreme Court

42 N.M. 569

82 P.2d 900

STATE et al.

v.CHAVEZ et al.

No. 4389.

Supreme Court of New Mexico.

Sept. 12, 1938.

Appeal from District Court, Bernalillo County; Thomas J. Mabry, Judge.

Action by the State of New Mexico and another against Arthur Chavez and Helen Hurlburt, as administratrix de bonis non of the estate of Fermin Martinez, deceased. From an adverse judgment, plaintiffs appeal.

Affirmed.

Under statute providing that father may inherit from his illegitimate children under certain circumstances, the estate of an illegitimate child whose father is dead is inherited by father's kindred according to the laws of descent and distribution as though the child were legitimate. Comp.St.1929, § 38-115.

Frank H. Patton, Atty. Gen., and Richard E. Manson, Asst. Atty. Gen., for appellants.

W. A. Keleher, Theo. E. Jones, and Waldo H. Rogers, all of Albuquerque, for appellees.

BRICE, Justice.

The sole question is whether an illegitimate child of an illegitimate mother may inherit from his maternal illegitimate uncle, who was never married, who had no other blood relative, and whose mother and the mother of the illegitimate child had predeceased him? A subsidiary question is whether an illegitimate child takes through, as well as from, his mother. The appellee Chavez will be called appellee in this opinion.

The facts need not be stated, as they are not in dispute, and the parties agree that a determination of this question of law will dispose of the case.

The right of appellee to inherit under the circumstances depends upon the following statutes:

“*** When any person *** dies without disposing of the estate by will, it is succeeded to and must be distributed subject to the payment of his debts in the following manner: One-fourth thereof to the surviving husband or wife and the remainder in equal shares to the children of decedent and further, as provided by law.” Sec. 38-106, N.M.Sts.1929.

“If any one of the children of the intestate be dead, the heirs of such child shall inherit his share in accordance with the rules herein prescribed in the same manner as though such child had outlived his parents.” Sec. 38-108, N.M.Sts.1929.

“If the intestate leave no issue, the whole of his estate shall go to his wife; if he leaves no wife, the portion which would have gone to her shall go to his parents. If one of his parents be dead, the portion which would have gone to such deceased parent, shall go to the surviving parent. Sec. 38-109, N.M.Sts.1929.

“If both parents be dead, the portion which would have fallen to their share, by the above rule, shall be disposed of in the same manner as if they had outlived the intestate, and died in the possession and ownership of the portion thus falling to their share; and so on through the ascending ancestors and their issue.” Sec. 38-110, N.M. Sts.1929.

“If there be property remaining uninherited, it shall be escheat to the State.” Sec. 38-112, N.M.Sts.1929.

“Illegitimate children shall inherit from the mother and the mother from the children; they shall inherit from the father whenever they have been recognized by him as his children, but such recognition must have been general and notorious, or else in writing, and if such recognition be in writing it must have been signed by the reputed father in the presence of at least two competent witnesses and must be such as to show upon its face that it was so signed with the intent of recognizing such children as heirs.” Sec. 38-114, N.M.Sts.1929.

“Under such circumstances, if the recognition of relationship has been mutual, the father may inherit from his illegitimate children, but in thus inheriting from an illegitimate child, the mother and her heirs take preference of the father and his heirs. Sec. 38-115, N.M.Sts.1929.

“Illegitimate children become legitimate by the marriage of their parents.” Sec. 38-116, N.M.Sts.1929.

[1] At the common law an illegitimate child, so far as inheritance was concerned, was nullius filius (a child of nobody). This applied solely to matters of inheritance, and not to other relations of an illegitimate child with his parents or with the state. He had no inheritable blood, and therefore could not inherit property. He was cut off completely from his ancestors, including his father and his mother. He established a new line of descent from himself. Ex parte Wallace, 26 N.M. 181, 190 P. 1020; Dickinson's Appeal, 42 Conn. 491, 19 Am.Rep. 553; 1 Blackstone's Comm. 459; 10 C.J.S. title “Bastards” §§ 21 and 23.

It is contended by the appellants that as sections 38-114 and 38-115, which we have quoted, are in derogation of the common law they should be strictly construed, and if so construed, that we must hold that an illegitimate child cannot inherit through his deceased mother, but only from her; and cite in support Jackson v. Jackson, 78 Ky. 390, 39 Am.Rep. 246; Thigpen v. Thigpen et al., 136 Ga. 541, 71 S.E. 790; Burris v. Burgett et al., 16 Del.Ch. 10, 139 A. 454; Voorhees v. Sharp et al., 63 N.J.Eq., 216, 49 A. 722; In re Rees' Estate, 166 Pa. 498, 31 A. 254; Stevenson v. Sullivant, 5 Wheat. 207, 5 L.Ed. 70; Haraden v. Larrabee, 113 Mass. 430; Cope v. Cope, 137 U.S. 682, 11 S.Ct. 222, 34 L.Ed. 832; Pratt v. Atwood, 108 Mass. 40.

[2] The statute in question is in derogation of the common law, but notwithstanding that fact, it is a remedial statute and should be liberally construed, if in fact the proper rules for the construction of these statutes have any relation to the common law. Milburn v. Milburn, 60 Iowa 411, 14 N.W. 204; Berry v. Powell, 101 Tex. 55, 104 S.W. 1044, 16 Ann.Cas. 986; Moore v. Moore, 169 Mo. 432, 69 S.W. 278, 58 L.R.A. 451; Trout v. Burnett et al., 99 S.C. 276, 83 S.E. 684, Ann. Cas.1916E, 911; Dickinson's Appeal, supra; Bennett v. Toler, 15 Grat. 588, 56 Va. 588, 78 Am.Dec. 638; Lewis v. Eutsler, 4 Ohio St. 354; Smith v. Smith, 105 Kan. 294, 182 P. 538; Record v. Ellis, 97 Kan. 754, 156 P. 712, Ann.Cas. 1917C, 822, L.R.A.1916E, 654; Houston-Hart Lumber Co. v. Neal, 16 N.M. 197, 113 P. 621; Lyons v. Howard, 16 N.M. 327, 117 P. 842; Adger v. Ackerman, 8 Cir., 115 F. 124; In re Gorkow's Estate, 20 Wash. 563, 56 P. 385; Shelton v. Minnis, 107 Miss. 133, 65 So. 114; Goodman v. Goodman, 150 Va. 42, 142 S.E. 412; State ex rel. Canfield v. Porterfield, 222 Mo. App. 553, 292 S.W. 85; Pederson v. Christofferson, 97 Minn. 491, 106 N.W. 958; Swanson v. Swanson, 2 Swan 446, 32 Tenn. 446; Williams v. Witherspoon, 171 Ala. 559, 55 So. 132; In re Garr's Estate, 31 Utah 57, 86 P. 757; Wadsworth v. Brigham, 125 Or. 428, 259 P. 299, 266 P. 875.

[3][4] The common law with reference to inheritances, and particularly that of illegitimate children has never been in force in New Mexico. There was never a time in this state, or in the Territory of New Mexico, or when New Mexico was a part of Mexico or its territory belonged to the Kingdom of Spain, that an illegitimate child did not have certain inheritable rights in property; or, in other words, had inheritable blood. We have never looked to the common law for the construction of such statutes. Harrison v. Harrison, 21 N.M. 372, 155 P. 356, L.R.A.1916E, 854; Beals v. Ares, 25 N.M. 459, 185 P. 780. The statutes regarding illegitimate children are derived indirectly from the civil law, and if interpretation is necessary, that law, and not the common law, should be the source of the rules of interpretation. Harrison v. Harrison, supra, Beals v. Ares, supra. In the Beals Case, in commenting on this act (prior to amendment in 1915), we stated (page 788):

“Section 21, c. 90, Laws 1889, an act to amend the law relative to the estates of deceased persons, provided for the distribution of the estate of deceased persons, together with other sections of said act. This act was modeled after the civil law of Spain and Mexico, and necessarily we would look to that law for definitions and interpretations, just as we would look to the decisions of the courts of a sister state for the construction and interpretation of statutes taken from such state. But because the act was modeled after the Spanish-Mexican civil law would be no reason for the holding that the whole body of the civil law, upon the subject about which the legislature was enacting, was incorporated into our law, because the legislature saw proper to take parts of it and put it in statutory form. ***”

[5] That illegitimate children have no inheritable blood is but a fiction of the common law (McKeller v. Harkins, 183 Iowa 1030, 166 N.W. 1061) and has no application to our statutes, which are of civil law origin. They were adopted verbatim from the statutes of Kansas and Kansas adopted them from Iowa, not all verbatim; but where not, then in substance.

Before we attempt to construe these statutes, it will be of assistance to note the conclusions reached by the Supreme Courts of Kansas and Iowa from whence they came to us.

The Supreme Court of Kansas in Smith v. Smith, supra, construed identical statutes, subsequent to their adoption here. The illegitimate child in that case claimed inheritance through the father. The Kansas court stated (page 540):

“It is contended that as the right depends upon the statute, and as section 3845 expressly provides that an illegitimate shall inherit from his father, it evidences a legislative intention not to put such child in the line of inheritance the same as children born in wedlock, but to limit the right to inherit from the father alone. The other sections indicate a purpose to take away the disqualification resulting from illegitimacy and to clothe the illegitimate with heirship and place him in the line of succession with other children of an intestate. It is provided that the illegitimate shall inherit from his mother, and in similar language gives him the right to inherit from his father. Then follows the provision that the mother shall inherit from the illegitimate child and, where there is the required recognition, the father also shall inherit...