Wilson v. Bass
| Decision Date | 09 January 1918 |
| Docket Number | 9,647 |
| Citation | 118 N.E. 379,70 Ind.App. 116 |
| Parties | WILSON v. BASS ET AL |
| Court | Indiana Appellate Court |
Rehearing denied June 25, 1918. Transfer denied May 8, 1919.
From Decatur Circuit Court; Hugh Wickens, Judge.
Action by Clinton O. Wilson against Laura J. Bass and others. From a judgment for defendants, the plaintiff appeals.
Affirmed.
Carey & Karns, Remy & Berryhill and William H. Remy, for appellant.
Will A Yarling and D. L. Wilson, for appellees.
A judgment was entered against appellant by reason of his refusal to plead over on the sustaining of a demurrer to his complaint. The material facts alleged were substantially as follows: There were born to Riley D. and Mahala H. Wilson, husband and wife, three children, viz., Alonzo L. Wilson, Alma Cora Wilson and appellee Laura J. Bass. Alonzo L. Wilson died in 1894. Appellant is his illegitimate son. Alonzo recognized and acknowledged appellant as his son. The former on his decease left surviving him no widow or legitimate child or children, or their descendants, and no illegitimate child or children or their descendants, save appellant as aforesaid.
In 1899 Alma Cora Wilson died intestate, the owner in fee of a certain eighty-acre tract of land in Shelby county, subject to the life estate therein held and owned by her mother. Alma Cora left surviving her no husband or father, or child or children or their descendants, but did leave surviving her her mother, Mahala H. Wilson, and her sister, appellee Laura J. Bass, who it is alleged thereby inherited the fee to said real estate, each the undivided one-half thereof. Mahala died intestate in 1914, the owner in fee of the undivided one-half of said real estate, survived by no parent or child or children except appellee Laura J. Bass. By reason of the facts it is alleged that at the death of Mahala her interest in said lands descended in equal parts to appellant and appellee Laura J. Bass, and that they are now the owners of the said land, the former of one-fourth thereof, and the latter the one-fourth plus the one-half theretofore owned by her. Prayer that title be quieted and partition made accordingly.
It seems to be conceded that under the facts alleged Mahala H. Wilson was the owner in fee of the undivided one-half of said lands. If so, it is plain that at the death of Mahala H. Wilson, her daughter, appellee Laura J. Bass, inherited at least the undivided one-half of such one-half. She inherited also from her mother the other half of such one-half, unless appellant inherited it. It follows under the facts alleged that, if appellant as the illegitimate, but acknowledged, son of Alonzo L. Wilson inherited from Mahala H. Wilson, the mother of his putative father, the one-half of the one-half interest in said lands owned by Mahala H. Wilson at her decease, this cause must be reversed; otherwise affirmed.
Sections 2990, 2991 Burns 1914, §§ 2467, 2468 R. S. 1881, are to the effect that the real and personal property of any person dying intestate shall descend to his or her children in equal portions, and that, if any child be dead leaving a child or children, such child or children shall inherit the share that would have descended to the parent if living. The words "child," "children," "descendants," and the like, as used in such a statute, prima facie mean legitimates. Truelove v. Truelove (1909), 172 Ind. 441, 86 N.E. 1018, 88 N.E. 516, 27 L. R. A. (N. S.) 220, 139 Am. St. 404; Jackson v. Hocke (1908), 171 Ind. 371, 84 N.E. 830; McDonald v. Pittsburgh, etc., R. Co. (1896), 144 Ind. 459, 43 N.E. 447, 32 L. R. A. 109, 55 Am. St. 145; Brisbin v. Huntington (1905), 128 Iowa 166, 103 N.W. 144, 5 Ann. Cas. 931; 3 R. C. L. 774. It follows that on the decease of Mahala H. Wilson her interest in the lands involved here descended to appellee Laura J. Bass, to the exclusion of appellant, unless the cited statutes are modified and controlled by some other statute as applied to the facts of this case. Appellant points to § 3000 Burns 1914, Acts 1901 p. 288, as such a modifying statute. It reads in part as follows: It was a harsh rule of the common law that an illegitimate child had no inheritable blood. Such statutes as § 3000, supra, are intended to ameliorate the condition of such unfortunates as it existed at common law. They are therefore remedial in nature, and should be liberally construed within their terms to effectuate the purpose of their enactment. Morin v. Holliday (1906), 39 Ind.App. 201, 77 N.E. 861; Goodell v. Yezerski (1912), 170 Mich. 578, 136 N.W. 451, 40 L. R. A. (N. S.) 516; Van Horn v. Van Horn (1899), 107 Iowa 247, 77 N.W. 846, 45 L. R. A. 93; Brisbin v. Huntington, supra; 3 R. C. L. 773.
It will be observed that the language of § 3000, supra, is to the effect that the illegitimate child or children shall inherit the estate of the acknowledging father under the circumstances named. The statute by its terms does not include within its beneficial operation the child or children of such an illegitimate. The courts, however, in construing such statute di not hold it down to its seemingly literal provisions under all circumstances. Thus the facts involved in Morin v. Holliday, supra, cited by appellant as conclusive here, were briefly and in part as follows: The intestate, John Cline, had acknowledged as his children two illegitimates, John Holliday and Clara Morin. The latter died before the decease of John Cline, leaving several children, who also had been acknowledged by John Cline as his grandchildren. John Holliday died after the decease of John Cline, leaving heirs. Other facts necessary to invoke the application of $ 3000, supra, existing, this court, applying the rule of liberal construction, held that the children of Clara Morin, in common with John Holliday, inherited the lands of which John Cline died the owner, and John Holliday having died intestate subsequently to the death of his putative father, his heirs and such children of Clara Morin held and owned such lands in common. The Morin case subsequently received the approval of the Supreme Court by the denial of the transfer.
But Truelove v. Truelove, supra, is authority in effect that the rule of liberal construction must be applied within the terms of such a statute, rather than to extend its terms to cases not embraced by its provisions. Thus, in that case Caroline Coats died intestate owning lands in fee, leaving surviving her no parent, husband or descendants. Caroline's mother was the mother of two legitimate children, said Caroline and Timothy O. Truelove, and also two illegitimate sons. Caroline left surviving her her brother, Timothy, and also the children of the two illegitimate sons of her mother, both of which sons died before the death of Caroline. The question before the court was whether Timothy inherited from Caroline the lands involved to the exclusion of the children of such illegitimates, or whether such children as heirs of Caroline through their respective fathers inherited an interest therein. The court remarked in substance that, had Caroline's mother and the three sons of the latter survived Caroline, the mother and Timothy would have inherited the land on Caroline's decease under the provisions of § 2992 Burns 1914, § 2469 R. S. 1881, to the exclusion of the illegitimate sons, since, as we have said, the words "child" and "children" under that section prima facie refer to legitimates. The mother, however, and also the two illegitimates, being dead, the latter leaving children, the solution of the involved question whether such children in common with Timothy inherited Caroline's lands invoked a construction of § 2998 Burns 1914, § 2474 R. S. 1881, which is as follows: "Illegitimate children shall inherit from the mother as if they were legitimate and through the mother, if dead, any property or estate which she would, if living, have taken by gift devise, or descent from any other person." The court in holding that the children of such illegitimates did not inherit under that section said: "Section 2998 supra, while it enables the illegitimate child to inherit the property its mother would have taken if living does not by its terms grant to the child of such illegitimate child such right in case said parent is not living, and the terms thereof cannot be extended so as to give such right."
Jackson v. Hocke, supra, also is an authority that there is a limit to the force of the rule of liberal construction when applied to statutes enacted to remove some of the disabilities of illegitimates at common law.
The court in the Morin case supports its conclusion through a process of reasoning by analogy from the statute providing for the adopting of children. § 870 Burns 1914, § 825 R. S. 1881. This statute contains a provision that the adopted child shall "be entitled to and receive all the rights and interest in the estate of such adopting father or mother, by descent or otherwise, that such child would if the natural heir of such adopting father or mother," while the similar language contained in the statute under consideration is to the effect that the acknowledged child under the circumstances prescribed by the statute shall inherit the...
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