Swanson v. Swanson

• Decision Date: 31 December 1852
• Citation: 32 Tenn. 446
• Parties: SWANSON v. SWANSON.
• Court: Tennessee Supreme Court

32 Tenn. 446

SWANSON

v.SWANSON.

Supreme Court of Tennessee.

December Term, 1852.

This was a bill filed in the chancery court at Franklin, upon the facts and for the purposes stated in the opinion. At the October term, 1851, Chancellor Frierson presiding, there was a decree for the respondents; and the complainant appealed.

Ewing & Cooper and Campbell, for complaint, argued: The act of the Legislature, legitimating two of the defendants, merely changes their names, and enables them “to inherit in the same manner as if they had been born in lawful wedlock.” Private statutes are construed strictly, and none more so than those legitimating persons characterized by the common law as “nullius filius.” Drake v. Drake, 4 Dev. L. 110;McCormick v. Cantrell, 7 Yerg. 615;Perry v. Newsom, 1 Ired. Eq. 28. The act in this case only confers the power “to inherit;” an expression bearing a definite legal meaning, which would limit the inheritable capacity to the real estate.

The decree of the court legitimating the other two defendants is under the act of 1805, ch. 2. That statute only authorizes an illegitimate person to be made ““heir, or joint heir,” of the person petitioning. These words have a definite legal meaning which would limit the inheritable capacity to the real estate. The phraseology of this statute, as well as of the private act, seems to indicate a settled design on the part of the Legislature to limit the substitution of illegitimate children to the rights of those born in lawful wedlock. Was this not intended expressly for the protection of those entitled as next of kin?

The statute of 1844, ch. 211, under which the complainant claims, gives to the widow of an intestate, “leaving no legitimate child or children, or the descendants of such,” all the personalty. Does not this language exclude illegitimate children?

The complainant, we insist, is entitled to the negroes derived from Theobald's estate. First, because there is no proof of assent to the legacy, nor are the circumstances and lapse of time sufficient to imply such assent; secondly, because there was no division of the negroes to which complainant had only a life interest and those to which she was absolutely entitled. 10 Yerg. 190;11 Humph. 425; 5 Ves. 515; 2 Call. 447;2 Yerg. 557.

Foster and Marshall & Figures, for respondents, argued: That the General Assembly of the state of Tennessee, under the first Constitution, had the power, by special legislation, to make children born out of lawful wedlock legitimate, has been decided by the supreme court of the state. 7 Yerg. 615.

It is supposed that in the absence of constitutional prohibition, legitimation by private acts of the Legislature is a matter of ordinary legislation. Drake v. Drake, 4 Dev. 110; Perry v. Newsom, 1 Ired. 28.

The question now is, Has the Legislature legitimated the defendants James and Mary, by the private act cited? The words of the act are: “Be it enacted, that the names of James Nail and and Mary Nail, illegitimate children of James Swanson of Williamson county, be, and the same are hereby, changed to that of James Swanson and Mary Swanson, and they are hereby enabled to inherit in the same manner as if they had been born in lawful wedlock.”

It is contended by the complainant that as the word “inherit” is used, and not the words “succeed to,” the children could, to be sure, take real estate from their father, but were not enabled by the act to take his personal estate; in other words, that the word “inherit” must be confined to its technical signification. It is to be observed that neither the real nor personal estate of of the father is mentioned in the act.

The old elementary writers never say a bastard cannot take a distributive share; they only say that he cannot inherit (4 Bla. Com. 408); and the reasoning is that, as he is nullius fillius, he can have no inheritable blood in him. And Selden says that, by the laws of England, bastards were excluded from inheritance unless there was a subsequent legitimation. 2 Kent's Com. 212. This, by the common law, was the great disability of the bastard, and the word ““inherit” was the most apt enabling word that could be used. On the construction of statutes the following authorities are cited, whether the statutes be public or private: 1 Kent's Com. 459, 460, and note b, 461, 463-465.

The real intention of statutes must prevail over the words. 15 Johns. 358, 380;14 Mass. 92.

When the expression in a statute is particular, and the intention general, the expression shall be made general. 10 Co. 57; 4 Kent's Com. 462, note f.

The intention of the act is manifest; the incapacity of the children to take property from their father was what was intended to be removed by the act, and not the incapacity to take a part of his property, and not the balance of it. The father's name is given to the children, and they are to inherit or take as if born in his lawful wedlock. The word “child,” in the statutes of distributions, always means the child who is heir. So it is in England; that is, the word “child,” in the statute of distributions, means the child who is or might be heir. See the various modes of expression adopted in the private acts of the General Assembly legitimating bastards, in other cases, where the intention was to legitimate generally.

It will be observed that all statutes of legitimation, of descents and distributions, are in pari materia, and are to be construed in reference to each other. The act of 1766, ch. 3 (C. & N. 252), has not the word “legitimate” in it; nor has the act of 1784, ch. 22, sec. 8. The argument based upon the presence of that word in the acts of 1827, ch. 14, 1844, ch. 211, and 1846, ch. 210, amounts to nothing.

Technical language has not been employed with any precision in any of the statutes of descents or distributions. The words “inheritance of lands,” in the act of 1829, ch. 36; in the act of 1823, ch. 28, the word ““disinherited,” means excluded from both real and personal estate, and the words “succeed to,” without other words, apply to real and personal estate; and in the act of 1796, ch. 14, the words are, “all real estates of inheritance, as well as personal, shall descend to,” etc.

The act of 1825, ch. 15, provides that it shall not be lawful for any child of color to inherit the estate of its mother's husband. Under the construction of this act, could such child succeed to the personal estate of its mother's husband, he being a white man's child? Certainly not.

It is, therefore, contended that the defendants James and Mary are made legitimate children of the intestate, by said private act, and entitled, under the statutes of descent, to portions of his real and personal estate.

It is further contended by complainant that, at most, the act of 1805, ch. 2, would authorize these defendants to be made heirs, if it does not authorize them to be made distributees. This being a statute of descents and distributions, as we contend, it must be construed with all other laws on the same subject. All the remarks made on the word “inherit,” on a previous point in this cause, are applicable on this point; and it may be remarked that the provisions of this act strengthen the position taken for the defendants James and Mary, on that point. It may also be remarked that the word “heir” is very often used, in common parlance, for “child,” and in statutes and deeds, to include heir and next of kin.

McKinney, J., delivered the opinion of the court.

This was a bill filed in the chancery court at Franklin, for the settlement and distribution of the estate of James Swanson, Sr., who died intestate on the 25th of March, 1850. The intestate, at the time of his death, was owner of a large estate, both real and personal, situate in part in this state, and in part in Mississippi. He left surviving him the complainant, who is his widow, but no child, or the issue of such, born in lawful matrimony.

The defendants are his natural sons and daughters, born long prior to his marriage with the complainant, and claim, by legitimation, the right of inheritance and succession to his estate. And this right asserted by them, which is not admitted by the bill, gives rise to the principal question for our determination in the cause.

In the discussion here, the question is properly narrowed down to the enquiry whether or not the defendants are, by law, entitled to succeed to the personal estate, under the statutes of distribution, their right of inheritance, as respects the real estate, not being seriously questioned.

The incapacity of defendants to take as distributees, in this case, is placed upon two grounds: The first rests upon the peculiar phraseology of the act of 1844, ch. 211. The second is that the legal effect of the legitimation relied on by the defendants was merely to confer upon them the capacity to take as heirs, and not as distributees, of their putative father, the intestate.

These objections to the competency of the defendants to take the personal estate, however plausible at the first view, are not tenable. First, the act of 1844 declares “that hereafter, when any person shall die intestate, leaving no legitimate child or children, or the descendants of such, living, but leaving a widow, then and in that case the said widow shall be entitled, after the payment of all just debts, to the whole of the personal estate, absolutely, of her deceased husband, in addition to the dower of real estate, as heretofore allowed by law.”

It is argued that, by force of the word “legitimate,” in this act, the intention is sufficiently manifest that in favor of the widow a child or children of the intestate, not born in lawful wedlock, should be excluded altogether; and consequently that under the statute, legitimation confers on such natural child or children no right of succession whatever as against the widow.

This construction is wholly inadmissible. It would be to make the statute wholly inconsistent with...