Wasmund v. Wasmund

• Decision Date: 15 March 1916
• Docket Number: 13060.
• Court: Washington Supreme Court
• Parties: WASMUND v. WASMUND (two cases.

156 P. 3

90 Wash. 274

WASMUND v. WASMUND (two cases.

No. 13060.

Supreme Court of Washington

March 15, 1916

Department 1. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Actions by Carl Wasmund, in his individual capacity and as administrator, against Max Wasmund. Judgments for defendant and the plaintiff, individually and as administrator appeals. Reversed and remanded, with instructions.

Stallcup & Stallcup, of Tacoma (Robert B. Nason, of Tacoma, of counsel), for appellant.

Frank H. Kelley and Ralph Woods, both of Tacoma, for respondent.

CHADWICK J.

Theresa the wife of Carl Wasmund, died intestate, leaving a community estate. The court found, and we shall accept its finding, that Max Wasmundwas born out of wedlock prior to the time of the marriage of his mother to Carl Wasmund; and, further, that Max was the sole heir of Theresa, and entitled to the whole of one-half of the community property, subject to some qualifications not material to this discussion. The controlling question presented upon this appeal is whether an illegitimate child can inherit the community property of a deceased parent to the exclusion of the surviving spouse.

That the state may define the character of property and the tenure by which it is holden will not be denied. It may also fix rules of descent. The rule of the common law was that an illegitimate child could not take as the heir, either of the putative father or of the mother, '* * * for he can inherit nothing, being looked upon as the son of nobody. * * * The incapacity of a bastard consists principally in this, that he cannot be the heir to any one,' etc. 4 Black. Com. 459.

So it is held in modern times that no man has an inheritable interest in an estate to which he is a stranger in blood unless he inherit in virtue of some statute, or, as Sir William Blackstone put it following the text just quoted, '* * * by the transcendent power of an act of Parliament, and not otherwise, as was done in the case of John of Gaunt's bastard children by a statute of Richard the Second.' The harshness of the common-law rule, which was to some extent, if not entirely, 'vicarious,' in that it punished the child for the sin of the parent, has not met with general approval by legislative bodies in this country, and it is now the common thing to find statutes defining the status and fixing the interest of illegitimate children in the property of the admitted or acknowledged parent. We are not referred to any case where the courts have, in the absence of statute, questioned the rule of the common law or undertaken, by rule or construction, to enlarge the terms of such statutes if plain and certain in terms. Nor could they do so without violating one of the first principles of statutory construction; that is, that a right that is created, as distinguished from a natural or existing right which is defined by statute, shall not be extended beyond its terms or beyond its necessary implications.

And while it is true, as we said in Re Gorkow's Estate, 20 Wash. 563, 56 P. 385, that such statutes are 'remedial,' they are not remedial in the sense that they are intended to furnish a remedy for some natural or inherent right, but only in the sense that the beneficiary is given a status in law that he may take advantage of existing remedies; whereas to an illegitimate, being denied all social and civil rights at common law, the statute undertakes to give all that it can give; that is, the civil right to inherit under the laws of descent. Respondent's rights depend, then, upon the statutes of this state. If he falls within the laws of descent, he is an heir of his mother; if not, he takes no interest.

As preliminary to a discussion of the statutes, it may be admitted that respondent is an heir of his mother, Theresa Wasmund, and would be entitled to share in a distribution of her separate property. With that question we have no concern; the whole of the estate is community property. The community property system was adopted in this state in 1869:

'All property acquired after the marriage by either husband and wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property.' Laws 1869, p. 319.

The act of 1869 was rewritten and extended in 1871. Laws 1871, p. 67. The definition of common property was retained. No rule of descent for community property was fixed by either the act of 1869 or 1871. In 1875 the Legislature enacted a rule of descent for community property. It also noticed the incapacity of an illegitimate child, and fixed its status as an heir:

'Sec. 2. Upon the death of husband or wife, the whole of the community property, subject to the community debts, shall go to the survivor, but nothing herein contained shall be construed to conflict with laws exempting property from attachment and execution, and specially the provision securing the homestead to the survivor, and all property except as an allowance for support of the family.' Laws 1875, p. 55.

'Sec. 4. Every illegitimate child shall be considered as an heir to the person who shall in writing, signed in the presence of a competent witness, have acknowledged himself to be the father of such child, and shall in all cases be considered as heir of his mother, and shall inherit his or her estate in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock; but he shall not be allowed to claim as representing his father or mother, any part of the estate of his or her kindred, either lineal or collateral, unless before his death his parents shall have intermarried, and his father, after such marriage shall have acknowledged him as aforesaid, and adopted him into his family, in which case such child and all the legitimate children shall be considered as brothers and sisters, and on the death of either of them

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