Voorhees v. Sharp

• Decision Date: 16 July 1901
• Citation: 49 A. 722,63 N.J.E. 216
• Parties: VOORHEES v. SHARP et al.
• Court: New Jersey Supreme Court

49 A. 722

63 N.J.E. 216

VOORHEES

v. SHARP et al.

Prerogative Court of New Jersey.

July 16, 1901.

(Syllabus by the Court.)

Appeal from orphans' court, Hunterdon county.

In the matter of the estate of Lucas Voorhees, deceased. From a decree for distribution on petition of David C. Sharp and others, administrators, Howard Voorhees appealed. Affirmed.

George H. Large, for appellant.

H. G. Chamberlin, for respondents.

MAGIE, Ordinary. The appeal is from a decree of the orphans' court for the distribution of the estate of Lucas Voorhees, deceased, in the hands of the administrators. The proofs before the orphans' court disclosed that when Lucas Voorhees died he left a widow, but no children, surviving him. He was survived by brothers and sisters, and by children of deceased brothers and sisters. It is conceded by counsel that the decree brought in question distributed the estate among the widow and surviving brothers and sisters, and the children of deceased brothers and sisters, of the intestate, in the precise manner prescribed by the provisions of paragraph 1 of section 169 of the act entitled "An act respecting orphans' courts and relating to the powers and duties of the ordinary and the orphans' courts and surrogates (Revision 1898)," approved June 14, 1898. The above section of said act was amended by an act approved March 22, 1899, but was not altered in any of the respects brought in question by this appeal. It is admitted by counsel that the decree is unassailable, unless a further fact, which was made to appear in the court below, indicates error therein. The fact relied on as indicating error in the decree is that Lucas Voorhees, the intestate, had had a female child, who had predeceased him, leaving the appellant, who was her illegitimate child, not born in lawful wedlock. The mother never married, and had no other child. The argument is that under the provisions of paragraph 5 of section 169, above referred to, the appellant has been made a legal representative of his mother, and therefore one to whom distribution should have been made, under paragraph 1 of the same section.

At common law, a bastard is deemed of kin to nobody. 1 Bl. Comm. 459. Our statute of distributions has, from the earliest times, provided that the surplusage of the estate of an intestate shall, under certain circumstances, be distributed to his child or children. No one ever supposed or contended that this provision extended to a child born out of lawful wedlock. On the contrary, this court has held that the lawful issue of a bastard child who had predeceased her father was excluded from the distribution of the father's estate. Bussom v. Forsyth, 32 N. J. Eq. 277. The status of a bastard, as to the transmission of property to or from him, was fixed by the common law brought to this country by our ancestors, and administered here until the legislature passed acts intended to ameliorate the unfortunate condition of those who were born out of lawful...