Van Horn v. Van Horn
| Decision Date | 21 January 1899 |
| Citation | 77 N.W. 846,107 Iowa 247 |
| Parties | PETER R. L. VAN HORN v. WM. VAN HORN, Appellee, REBECCA A. STROUBLE AND SUSANNAH BOWLBY, Appellants |
| Court | Iowa Supreme Court |
Appeal from Howard District Court.--HON. A. N. HOBSON, Judge.
THIS proceeding is to establish plaintiff's right as an illegitimate son to inherit the property, real and personal of one Peter Van Horn, who died intestate in Howard county Iowa, in August of the year 1895. The deceased was never married, and the defendants are his brothers and sisters. In answer to plaintiff's claim defendants made a general denial, and further pleaded that at the time of plaintiff's birth, and for many years thereafter, both he and his putative father were residents of the state of New Jersey, and that by the laws of that state in force prior to and since 1854 there was no provision whereby an illegitimate child may inherit from his father. Plaintiff's demurrer to this affirmative plea was sustained, and the cause was tried on the issue tendered by the general denial, resulting in a decree for plaintiff, and defendants appeal.
Affirmed.
H. L Spaulding and John McCook for appellants.
H. T. & C. W. Reed for appellee.
Appellee was born in the state of New Jersey in January of the year 1854. His mother was Sarah Ann Scales. She died in the year 1859, at the age of 31. About the year 1857 Peter Van Horn, deceased, moved to Howard county, where he resided most of the time until his death. As we have said, he was unmarried, and the defendants are his brothers and sisters, who claim his property by right of inheritance. Appellee claims that Peter Van Horn was his father, and that the deceased recognized him as his son while both lived in the state of New Jersey, both orally and in writing, and that he is entitled to inherit as such. At common law bastards could not inherit from either parent. They were regarded as nullius filius, or filius populi. This rule has been changed by statute in this state, which provides that "they [illegitimate children] shall inherit from the father whenever the paternity is proven during the life of the father, or they have been recognized by him as his children, but such reorganization must have been general and notorious or else in writing." Code 1873, section 2466. They may always inherit from the mother. Code 1873, section 2465. These statutes were enacted prior to the year 1851, as they are found in the Code of that year as sections 1415 and 1416. They were in force at the time of the plaintiff's birth, and he is entitled to the benefit thereof, provided he has shown that the deceased father generally and notoriously recognized him as his child or made such recognition in writing.
At the threshold of the case we are met with the proposition that the court erroneously sustained plaintiff's demurrer to that part of the answer pleading the affirmative defense, and this same proposition is made the basis of objections to some of the evidence adduced. It is said that recognition of plaintiff by the deceased in the state of New Jersey, which state has no statute allowing an illegitimate to inherit does not give plaintiff the right of succession; and several cases are cited in support of the contention. None of them, however, seem to be exactly in point. The case of Crane v. Crane, 31 Iowa 296, sheds no light on the question. In re Sunderland's Estate, 60 Iowa 732, 13 N.W. 655 involved the construction of section 2454, of the Code of 1873, which provides that the heirs of an intestate's deceased child may inherit in the same manner as though the child had outlived its parents. The question there determined was whether or not a child adopted under the laws of the state of Louisiana was such an one as the statute contemplated. A majority of the court held it was not. Hartinger v. Ferring, 24 F. 15, simply holds that sections 1415 and 1416 of the Code of 1851 are not retroactive. Smith v. Derr's Adm'rs, 34 Pa. 126, holds that a decree of a foreign state legitimatizing an illegitimate child was not binding upon the courts of Pennsylvania in determining the right of succession or descent of real property situated in that state. In Blythe v. Ayres, 96 Cal. 532 (31 P. 915), Garoutte, J., writes an able opinion covering the entire ground, and he concludes that statutes similar to the one upon which plaintiff relies are statutes of descent, and that the domicile or status of the child and the extraterritorial operation of state laws are wholly immaterial matters. And this, it seems to us, is the correct doctrine. It is written on the hornbook of the law that, as a general rule, the succession of personal property is regulated and governed by the law of the owner's domicile, while that of real property is governed by the law of the place where it is situated. 3 Washburn Real Property (3d ed.), p. 16, section 32, and cases cited; Tiedman Real Property, section 664. The statute under consideration is undoubtedly a statute of descent, and must, like other statutes in derogation of the common law, be liberally construed, with a view to promote its objects and assist the parties in obtaining justice. Code 1873, section 2528. It is quite immaterial, then, where the acts of recognition relied upon occurred; for, if plaintiff brings himself within the terms of the statute, he is the legal heir of the deceased, and entitled to inherit. Such seems to be the conclusion arrived at by the supreme court of the United States in Investment Co. v. Caldwell, 152 U.S. 65 (14 S.Ct. 504, 38 L.Ed. 356). See, also, Caldwell v. Miller, 44 Kan. 12 (23 P. 946); Harvey v. Ball, 32 Ind. 98; Miller v. Miller, 91 N.Y. 315. It may be that the plaintiff's status is to be determined by the law of his mother's domicile, or, in the event of her death, by that of...
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