Trout v. Burnette

• Decision Date: 24 September 1914
• Docket Number: (No. 8943.)
• Citation: 83 S.E. 684,99 S.C. 276
• Parties: TROUT. v. BURNETTE et al.
• Court: South Carolina Supreme Court

83 S.E. 684

99 S.C. 276

TROUT.

v.BURNETTE et al.

(No. 8943.)

Supreme Court of South Carolina.

Sept. 24, 1914.

Bastards (§ 97^*-2)—Inheritance From—Statutory Provisions—"Heir at Law."

Under Civ. Code 1912, § 3562, which was enacted in 1906, and which provides that any illegitimate child whose mother shall die intestate shall, so far as her property is concerned, be an heir at law as to such property, the children of an illegitimate child who died prior to 1906 were heirs of their grandmother, the mother of the illegitimate child, who died subsequent to 1906; as the act is remedial, and so construed is not retrospective, since it looks forward to the time when the distribution of the intestate's estate is to be made, especially in view of section 3555, providing that the lineal descendants of an "estate" (intestate) shall represent their respective parents and take among them the share or shares to which their parents would have been entitled had such parents survived the intestate, and, moreover, the Legislature in using the technical term "heir at law" must have intended to invest the illegitimate children with inheritable blood such as other heirs at law possess.

[Ed. Note.—For other cases, see Bastards, Cent. Dig. § 248; Dec. Dig. § 97.*

For other definitions, see Words and Phrases, First and Second Series, Heirs at Law.]

Fraser, J., dissenting.

Appeal from Common Pleas Circuit Court of Spartanburg County; S. W. G. Shipp, Judge.

Action for partition by J. W. Trout against Stanley Burnette and others. From a decree against them, defendants Iris Wilson and others appeal. Reversed.

The master's report was as follows:

Mrs. Nancy D. McClure died intestate in 1910, seised and possessed of a tract of 88 acres of land, about eight miles north of the city of Spartanburg, and owning a small personal estate. This suit is brought by plaintiff, her eldest son, for the partition and division of her property.

Mrs. McClure was first married to a man named Trout, and the plaintiff was the only child by the first marriage. After the death of her first husband, her second child, Ella, was born out of wedlock. This child Ella, familiarly known as "Babe, " was married to R. R. McMillan. To them were born three children, viz.: Iris McMillan (now Wilson), Ralph McMillan, and Nannie McMillan. Ella McMillan died some years ago—previous to 1906—leaving her husband and children surviving her. After the birth of Ella, Mrs. Trout was married to a man named Burnette, and to them was bora one child, Otis L. Burnette, who died in 1908, leaving five children, viz.: Stanley, Flavius, Joyce, Ruby, and Eleanor Burnette. After the death of Mr. Burnette, Mrs. Burnette married a man by the name of McClure in 1893, who died about 1903. During her lifetime Mrs. Nancy D. McClure conveyed certain property to her son Otis L. Burnette which plaintiff alleges to have been in the nature of advancements. During the latter years of her life the management of her property was in the hands of her eldest son, the plaintiff, who is to account for his handling of such property. These two questions will be considered last in this report. 1 shall first address myself to the principal question arising herein, viz.: Are the children of Ella McMillan heirs at law of their grandmother, Mrs. Nancy D. McClure? Are they entitled to represent their mother, Ella McMillan, and to take among them the share to which she would have been entitled if she had survived the intestate, Mrs. Nancy D. McClure?

Section 3562, vol. 1, Code of 1912, is (in part) as follows: "Any illegitimate child * * * whose mother shall die intestate, possessed of any real or personal property, shall be, so far as said property is concerned, an heir * * * at law as to such property, notwithstanding any law or usage to the contrary." This is the act of 1906 (25 Stats. 156), and was enacted after the death of Ella McMillan, the illegitimate child, but before the death of Nancy D. McClure, her mother. Can the legitimate children of Ella McMillan share in the distribution of the estate of their grandmother?

The act is an enabling and remedial statute, affecting the rights of those who have heretofore been under the ban of law, and giving a remedy where none existed before. In such cases it is to be presumed that the Legislature intended the most beneficial construction of the act consistent with a proper regard for the ordinary canons of construction. Before the passage of this act illegitimate children could not inherit; a bastard was said to be nullius filius. It would seem that the illegitimate child was not allowed to inherit for two reasons: (1) In order that a penalty might be inflicted for wrongdoing (the penalty here falling upon the only innocent person concerned in the committing of the wrong); and (2) because his parentage was uncertain (though, of course, no uncertainty could exist in the case of the mother).

In the case at bar the only doubt as to the right of the children of Ella McMillan to in herit arises out of the fact that their mother (the person whom it would seem that the statute was meant to benefit) was dead before the passage of the act. This statute was intended by the Legislature to invest the illegitimate child (so far as his mother's property is concerned) with inheritable blood, as if he had been born in wedlock. Can this statute breathe thebreath of life into the dead illegitimate and invest her with such inheritable blood as that she can transmit to her children the right to inherit from the one from whom she could inherit if she had lived? Would such a construction of the law be retrospective? It is a well-settled rule that an heir may transmit through his heritable blood to his heirs property which he would have inherited if he had been alive at the time of the distribution.

The questions propounded above are answered by the Supreme Court of Massachusetts in the case of Curtis v. Hewins, 11 Mete. 294. The court decides that in such a case the provision of the statute does not apply to the grandchildren of the mother of the illegitimate child.

The contrary view is taken by the Texas court, in the case of Blair v. Adams (C. C.) reported in 59 Fed. 243, and by the Illinois court in Bales v. Elder, 118 111. 436, 11 N. E. 421. So also by the Indiana court, in Morin v. Holiday, reported in 39 Ind. App. 201, 77 N. E. 801. The last-named case is strongly relied upon by defendants, and will doubtless be fully presented to the court by counsel. In this case the illegitimate daughter died June 7, 1892, the enabling statute was passed in 1901, and the intestate died in 1902. The widow and mother of another illegitimate son claim all the property, on the ground that the first illegitimate daughter died nine years before the statute was passed; but the court decided that the children of the illegitimate daughter should share in the distribution of the estate.

In Bales v. Elder, supra, suit was brought to partition the land of Hiram Walker, a legitimate son of Sarah Walker, a woman who had an illegitimate son, Hampton D. Bales. Hiram Walker died intestate, leaving (as defendants contended) one sister and the descendants of four sisters as his only heirs at law. Hampton D. Bales, the illegitimate, died in 1852, Sarah Walker in 1854, the statute was passed in 1872, and this case was tried in 1887. The question was whether or not the children of the illegitimate, Hampton D. Bales, were heirs at law of their uncle, Hiram Walker, along with his sisters' children and surviving sister. In this case the illegitimate had been dead for 20 years when the act was passed. In deciding that the descendants of the illegitimate were heirs at law, and as such should participate in the distribution of the Walker estate, the court says: "It is * * * claimed that appellants cannot claim under the act of 1872, for the reason that Sarah Walker and Hampton D. Bales both died before the act * * * was passed. There is no provision of the act under which its application is limited and confined to a case where the mother and illegitimate may be living at the time the act took effect. * * * The act is one prescribing a rule of descent of property. * * * The appellants do not claim a part of this estate as heirs of Sarah Walker, or Hampton D. Bales, but they claim as the heirs of Hiram Walker; and, as he died after the act of 1872 was adopted, his estate must descend and be distributed according to that act."

The effect of this case is to hold that such application of the statute as the defendants in the case at bar ask for is not retrospective; and I hold as a matter of law that the act of the Legislature of 1906 (section 3562) would not be retrospective when so applied, for the reason that the act looks forward to the time when the distribution of the intestate's estate is to be made, and not backward to the time when the illegitimate died, leaving children. After a very long and careful consideration of this case, I have been forced to this conclusion, although I must state that the case has been an exceedingly difficult case to decide. I do not find it necessary, however, to base my report upon the cases decided from Indiana, Illinois, and Texas alone; the plain provision of our own statute is much clearer and simpler than the reasoning in these cases cited from other jurisdictions. Section 3555, vol. 1, Code of 1912, subdivision 1, c. 2, reads as follows:

"The lineal descendants of the intestate shall...