Ward v. Mathews

• Decision Date: 19 January 1899
• Citation: 25 So. 50,122 Ala. 188
• Parties: WARD v. MATHEWS.
• Court: Alabama Supreme Court

25 So. 50

122 Ala. 188

WARD v. MATHEWS.

Supreme Court of Alabama

January 19, 1899

Appeal from probate court, Jefferson county; M. T. Porter, Judge.

Application of T. J. Mathews, administrator, for a partial settlement. From an order of the court granting the same, W. C. Ward guardian ad litem, appeals. Affirmed.

In May 1897, L. F. Henderson, the illegitimate son of Mrs. Lucretia Henderson, died intestate in the city of Birmingham, leaving no children nor wife, but leaving surviving him his mother and three half-brothers and one half-sister, who were grown and two nieces, the minor children of his deceased half-sister. T. J. Mathews was appointed administrator of L F. Henderson's estate. Mathews, as such administrator, filed his application for partial settlement, alleging that the decedent had no direct descendants, and that his heirs at law were his mother, his half brothers and sister, and the children of his deceased half-sister. W. C. Ward was appointed guardian for the minor children. The grown half brothers and sister made no objection to the allegation of the administrator that their mother, Lucretia Henderson, who was the mother of both the decedent and other children who are named as heirs, and the grandmother of the minors, but W. C. Ward, as guardian for these minor children, pleaded that, as L. F. Henderson was the illegitimate son of Lucretia Henderson, the kindred of this illegitimate child on the part of the mother, who are first entitled to inherit, were the half brothers and sisters of such decedent or their descendants, and they were entitled to the whole of the property, and Lucretia Henderson was improperly named as one of the parties entitled to participate. To this plea Lucretia A. Henderson, the mother and only surviving parent of the deceased, demurred upon the following grounds: (1) That the fact that the decedent was the illegitimate child of the demurrant does not change her status in law as an heir of said estate entitled to a distributive interest therein; (2) that said plea does not set forth any facts which show that the demurrant was not entitled to a distributive interest of one-half of the estate of the decedent. This demurrer was sustained, and, in a decree on partial settlement, the court, after hearing the testimony, decided that the mother was entitled to one-half of the estate, and the half brothers and sister and the children of the deceased half-sister of the decedent to the other one-half, and judgment was entered accordingly. From this judgment the guardian appeals, and assigns as error the sustaining of the demurrer to the plea and the rendition of said judgment.

Ward & Houghton, for appellant.

Knox, Bowie & Dixon, for appellee.

SHARPE J.

The statute relating specially to the descent and distribution of estates of illegitimates dying intestate, and without descendants, forms section 1460 of the present Code, and is as follows: "The mother or kindred of an illegitimate child on the part of the mother are, in default of children of such illegitimate child or their descendants, entitled to inherit his estate." In the case of Butler v. Land Co., 84 Ala. 384, 4 So. 675, this statute was under the consideration of this court upon a controversy which involved the question here presented, as to the manner of descent and distribution of such estates as between the mother of a deceased illegitimate and her descendants. It was there held that this section, standing alone, was doubtful of meaning as to the persons who should take as well as to the quantity to be taken by each, and therefore that, to ascertain such meaning, reference should be had to the other statutes then existing regulating descent in ordinary cases, treating the subject and the system as one. By the ordinary rule then in force, the brothers and sisters, or their descendants, were preferred to the mother; and the meaning of the particular statute was solved by applying to it the same rule, and thereby the brother of the deceased was held entitled to the property to the exclusion of the mother. The correctness of that decision has not been questioned in any other case in this court. Since its rendition, the ordinary rule of descent and distribution has been changed by the act of January 30 1891, which, as amended by the act of February 21, 1893 (Acts 1892-93, p. 1055), is as follows: "That hereafter in this state the real and personal property of all persons dying intestate who have no husband or widow or children, or descendants of children, but who leave surviving a parent or parents, shall descend subject to the payment of debts and charges against the estate: First, to the parents in equal portions, and in case but one parent is surviving, then he or she shall be entitled to one half of such estate, and the other half to the brothers and sisters of the deceased, or their descendants, as now provided by law, and if there be no brothers and sisters and their descendants, then the whole estate shall go to the surviving parent." Such was the statute in force at the death of L. F. Henderson, and which is still in force, being substantially embodied in article 1 of chapter 35 of the present Code. The statute relating expressly to estates of illegitimates remains unchanged, and, standing by itself, is as uncertain as it was found to be in the trial of Butler v. Land Co., supra. We think the mode there adopted to determine...