I have examined the entire record. The facts in the case were: That a soldier took out insurance, was killed in France in 1919. Under the terms of the policy, his mother, Martha Pratt, was made the beneficiary. The Veteran's Bureau allotted to his mother a monthly allowance out of it. For just how long, the record does not show, but at the time of her death, after the passage of the amendment of 1925, making the proceeds belong to the estate of the insured, it appears from the record that an administration was had on the soldier's estate in Carter county, with a view of collecting the money, and that as a preliminary the administrative officers desired some showing as to who the heirs were of the dead soldier. They evidently had most of that data in Washington, as they had been paying the monthly installments to the mother, but more data was desired. The result was that the county court, evidently for that purpose, made a finding that some uncles of the soldier were the interested parties. Later, however, a finding was made that the mother, Martha Pratt, was entitled to the insurance, as being the sole heir. She had died prior to that finding, however, and subsequently an administration was sought on the estate of Martha Pratt, probably with a view of one administrator receiving the funds from the other administrator. In the administration of the mother's estate, Martha Pratt, Sr., referred to, these uncles sought to name the administrator, and one of them went so far as to get an order for letters of administration, but never fully qualified. Later a granddaughter of Martha Pratt, the daughter of Martha Pratt's daughter, the granddaughter being an illegitimate, filed protest and requested the appointment of an administrator, by the name of Fischl, of the estate of her grandmother on her mother's side. The county court found that this grandchild was the sole heir, and would be entitled to the proceeds of the *Page 260 property, and hence was entitled to nominate the administrator, which she did.
From this an appeal was taken by the uncles of the soldier to the district court. There were several attorneys connected with it, and some of the proof offered as a basis for sustaining the judgment of the county court is startling. The district judge reversed the county court on the subject of who the heir was, though the legal reason for it does not appear in the record further than a statement as follows:
"The court further finds that Martha Pratt, Jr., being the illegitimate child of Ruth Pratt, the daughter of Martha Pratt, deceased, is not an heir of the said Martha Pratt, deceased, she being prohibited by the statutes of Oklahoma on account of her illegitimacy from representing her mother in inheriting an estate from her mother's kindred."
The order took from Martha Pratt all interest in the estate, but was silent on the proposition as to whether or not Louis Fischl, who had been named by the county court, should continue as the administrator. Later a supplementary journal entry was made continuing Louis Fischl as administrator.
The order of the district court has been affirmed by this court and application for rehearing is here. It appears to me, after a thorough examination, that the judgment of this court, affirming that judgment, is wrong, and that the judgment of the district court, reversing the county court, is wrong. I am unable to see, in the light of the governing statutes, that the fact that Martha Pratt was an illegitimate child of Ruth Pratt, who, had she survived her mother, would have succeeded to the estate, renders her, Martha Pratt, Jr., incapable of inheriting. The decision as given does not follow the statute, nor does it follow the reasoning part of Bahnsen v. Burl,95 Okla. 191, 218 P. 846, or the result arrived at. The third section of the syllabus is as follows:
"Martha Burl, an illegitimate child of Cora Nero, died intestate February 2, 1909, leaving surviving no issue, mother, father, or brother, but leaving an illegitimate sister, Mary Burl, a child of the same mother. Held, that Mary Burl, the illegitimate surviving child, was an heir of the deceased mother, and as such inherited the property of her illegitimate sister under section 11304, Comp. Stat. 1921."
The statute provides that in all cases an illegitimate child inherits from its mother. The applicable statutes are sections 11303, 11304, 8057, and 8054, C. O. S. 1921, as follows:
"11303. Inheritance by illegitimate child. Every illegitimate child is an heir of the person who in writing, signed in the presence of a competent witness, acknowledges himself to be the father of such child; and in all cases is an heir of his mother; and inherits 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 does not represent his father or mother by inheriting 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, acknowledge him as his child, or adopts him into his family; in which case such child and all the legitimate children are considered brothers and sisters, and on the death of either of them, intestate, and without issue, the others inherit his estate, and are heirs, as hereinbefore provided, in like manner as if all the children had been legitimate: saving to the father and mother, respectively, their rights in the estate of all the children in like manner as if all had been legitimate. The issue of all marriages null in law, or dissolved by divorce, are legitimate.
"11304. Inheritance from illegitimate child. If an illegitimate child, who has not been acknowledged or adopted by his father, dies intestate, without lawful issue, his estate goes to his mother, or, in case of her decease, to her heirs at law."
"8057. Legitimation of child. The father of an illegitimate child by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such, and such child is thereupon deemed for all purposes legitimate from the time of its birth. The status thus created is that of a child adopted by regular procedure of court. The foregoing provisions of this article do not apply to such an adoption."
"8054. Rights of adopted children. A child so adopted shall be deemed, for the purposes of inheritance by such child, and his descendants and husband or wife, and other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption the same as if he had been born to them in lawful wedlock, except that he shall not be capable of taking property expressly limited to the body or bodies of the parents by adoption, nor property from the lineal or collateral kindred of such parents by right of representation."
In all cases, under this statute, the living illegitimate child is the heir of the mother, and represents the mother, so as to take what would have been distributed to the mother by succession. By the law of nurture, the child that has nursed its mother's *Page 261 breast, whether begotten after a marriage ceremony or before, naturally should succeed to what that parent has or is entitled to. But during the days of ecclesiasticism there grew up the idea that such a child could not inherit, as being "filius nullius," the son of nobody. Another one of the rules, largely drawn from the feudal system, was that nobody could succeed to the inheritance unless he be of the blood of the first purchaser. This naturally prevented inheritance through affinity, though the closest ties should be the tie of man and wife, and the tie that most strongly binds them is a child, descended from the loins of each.
Evidently the Legislature that framed the succession statutes that we have was familiar with those rules, and was trying to provide, and did provide, a scheme by which the husband and wife inherited from each other, and that the husband's side of the house, in a proper case, through the medium of the child that he had begotten by his wife, could succeed to property originating in the mother's side of the house in certain cases. The Legislature provided a scheme by which a person, who was the father of an illegitimate child, could by a declaration, prepared in a certain way, make his illegitimate child his limited heir. Section 11303, C. O. S. 1921, set out above, is one of the provisions. Down to the first semicolon, the Legislature had in mind the proposition that a father who had illegitimate children, so far as he was concerned, could designate an heir. The second subdivision provides that, in all cases, every illegitimate child is an heir of his mother. The term "every illegitimate child" is the subject about which the assertion of heirship as to the mother is being made.
The third subdivision is a conjunctive one, providing for the illegitimate child, who has been declared an heir by the father, to inherit from the father as though he were legitimate. The clause relied on in the opinion for denying an illegitimate child full right of heirship, and others claiming through him, is the provision of the statute, as follows:
"* * * and in all cases is an heir of his mother; and inherits 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 does not represent his father or mother by inheriting 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, acknowledge him as his child, or adopts him into his family."
The result of such adoption is declared as follows:
"* * * in which case such child and all the legitimate children are considered brothers and sisters, and on the death of either of them, intestate, and without issue, the others inherit his estate, and are heirs, as hereinbefore provided, in like manner as if all the children had 'been legitimate; saving to the father and mother, respectively, their rights in the estate of all the children in like manner as if all had been legitimate. The issue of all marriages null in law, or dissolved by divorce, are legitimate."
It is very plain that the language used there has reference to a dead illegitimate person and not a living one, and consequently does not limit the right of a living illegitimate to possess and enjoy what his mother would have enjoyed had she succeeded.
I am not able to see on what theory a law enacted in the words of this, making the child the heir of his mother in all cases, though he does not know who his father is, could be so transformed as to prevent him representing his mother in cases where she is dead, and the estate comes to her in the line of blood representation. Most clearly, what the statute has referred to is the using of a dead illegitimate child as a conductor through which to transfer property to those who are not of the blood of the side of the house where the property originated, unless the father and mother marry before the child dies. Section 11304, C. O. S. 1921, set out above, provides for inheritance from an illegitimate child.
There are innumerable decisions on the subject, but no statute that makes the illegitimate the heir in all cases of its mother in identical words appears to be directly discussed in the line of decisions on it. However, the reasoning here is counter to that of the Supreme Court of the United States in the case of Lessee of Henry Brewer v. Jacob Blougher et al., 10 L.Ed. 408, 418. That was a case as revolting in aspect as the present, with the exception that in that case a marriage had taken place between a man and his own child. In the present case, startling argument was made of legitimation, because the father begat the child by his own daughter, that is now surviving the mother and the father both, and claims the soldier's insurance, and legitimation occurred because the child was taken into the house of its father, and thereby adopted and legitimated.
In the United States Supreme Court case, the child never could be legitimated. In the present case the child was never legitimated, *Page 262 but was alive and was claiming to be the heir of its grandmother through the medium of its mother, who was legitimate. The statute, construed by the Supreme Court, is set out in the opinion, as follows:
"The Act of 1825 (ch. 156, of Maryland), provides: 'That the illegitimate child or children of any female, and the issue of any such illegitimate child or children, be, and they are hereby declared to be, able and capable, in law, to take and inherit both real and personal estate from their mother, or from each other, or from the descendants of each other, as the case may be, in like manner as if born in lawful wedlock.' Then follows a proviso, which has no application to the present question."
The language of the court is as follows:
"This case depends upon the construction of the Act of Assembly of Maryland passed at December session, 1825 (ch. 156), entitled, 'An Act relating to illegitimate children.' By this act of Assembly, 'the illegitimate child or children of any female, and the issue of any such child or children,' are declared to be capable in law 'to take and inherit both real and personal estate from their mother, or from each other, or from the descendants of each other, as the case may be, in like manner as if born in lawful wedlock.'
"It appears from the record that a man by the name of John Sloan had several children, who were the issue of an incestuous connection of a shocking character. He conveyed a tract of land called 'Grassy Cabin,' situated in Alleghany county, in the state of Maryland, to John Joseph Sloan, one of these children. John Joseph Sloan, the grantee, died about the year 1832, intestate, and without issue; and seized in fee-simple of this land. Two brothers and one sister, the issue of the same incestuous intercourse, survived him; and they conveyed the land to Jacob Blougher and Daniel Blougher, the defendants in error. * * *
"The proviso, like the expressions in the enacting clause, shows, that the Legislature were not looking to children whose parents would probably marry, but to children whose parents never would marry; and they make no distinction between the issue of those who could not, and of those who would not become lawfully joined in wedlock. If from any cause whatever the parents were never married, the children were illegitimate; and all illegitimate children, under this act of the Assembly may inherit from their mother and from each other. It follows that the tract of land called 'Grassy Cabin,' upon the death of John Joseph Sloan, descended to his brothers and sister, before mentioned, and the plaintiff is not entitled to recover."
In that case, the illegitimate brothers and sister were held to get the property through their relation on the mother's side. The language used by that same court in the case of Stevenson's Heirs v. Sullivant, 5 L.Ed. 83, in a similar case, is as follows:
"The 3rd question is, are the appellants, as bastards, capable of inheriting from Richard Stevenson?
"The 18th section of the law of descents, under which this question arises, is as follows:
" 'In making title by descent, it shall be no bar to a party that any ancestor through whom he derives his descent from the intestate, is, or hath been, an alien. Bastards also shall be capable of inheriting or of transmitting inheritance on the part of their mother, in like manner as if they had been lawfully begotten of such mother.'
"In the construction of this section, it is never to be lost sight of, that the appellants are to be considered as bastards, liable to all the disabilities to which the common law subjects them, as such, except those from which the section itself exempts them. Though illegitimate, they may inherit and transmit inheritance, on the part of the mother, in like manner as if they had been lawfully begotten of the mother. What is the legal exposition of these expressions? We understand it to be, that they shall have a capacity to take real property by descent immediately or through their mother in the ascending line; and transmit the same to their line as descendants, in like manner as if they were legitimate. This is uniformly the meaning of the expressions, 'on the part of the mother or father,' when used in reference to the course of descent of real property, in the paternal or maternal line. As bastards, they were incapable of inheriting the estate of their mother notwithstanding they were the innocent offspring of her incontinence, and were, therefore, in the view of the Legislature, and consonant to the feelings of nature, justly entitled to be provided for out of such property as she might leave undisposed of at her death, or which would have vested in her, as heir to any of her ancestors, had she lived to take as such. The current of inheritable blood was stopped in its passage from, and through the mother, so as to prevent the descent of the mother's property and of the property of her ancestors, either to her own illegitimate children, or to their legitimate offspring. The object of the Legislature would seem to have been to remove this impediment to the transmission of inheritable blood from the bastard in the descending line, and to give him a capacity to inherit in the ascending line, and through his mother. But although her bastard children are, in these respects, quasi legitimate, they are, nevertheless, in all others bastards and as much, they have, and can have, neither father, brothers, or sisters. They cannot, therefore, inherit from Richard Stevenson, because, in contemplation of law, he is not their brother; and even if *Page 263 he were their brother, they would not inherit their estate under this section, on the part of their mother, but directly from Richard, the descent from brother to brother being immediate. Upon no principle, therefore, can this section help the appellant's case. His estate never vested in the mother, so as for her bastard children to inherit from her; nor did it pass through her in the course of descent to the bastard children."
It will be observed in that case that it was an inheritance from the father that was sought to be obtained, but the court discussed the meaning of terms with reference to the illegitimate child inheriting through and from his mother, using the following language:
"* * * Though illegitimate, they may inherit and transmit inheritance, on the part of the mother, in like manner as if they had been lawfully begotten of the mother. What is the legal exposition of these expressions? We understand it to be, that they shall have a capacity to take real property by descent immediately or through their mother in the ascending line; and transmit the same to their line as descendants, in like manner as if they were legitimate."
Some of the language in that case was criticized in the case later decided by the Supreme Court of Missouri, of Moore v. Moore, 58 L. R. A. 451, which held that the illegitimate child could use its mother as a medium of reaching the property of a grandmother. The case discusses the various decisions on the subject and the reasons for the enactments, and the syllabus is as follows:
"The illegitimate child of a woman who dies before her brother is capable of inheriting her share of the brother's estate, under a statute making bastards capable of inheriting, on the part of their mother, in like manner as if they had been lawfully begotten of her."
That case is here applicable. However, the construction of every statute depends on its own wording, and in view of the variety of decisions on the subject, it is fair to presume that our Legislature provided that in all cases the illegitimate is the heir of the mother for the purpose of preventing further discussion on the matter. It is fair to presume that "before his death," in the proviso relied on by the court, could not refer to a living person in the connection used.
I think that there can be little doubt that the money in this case belongs to Ruth Pratt, and I think that the language of the Supreme Court of the United States in the late decision in the case of Singleton v. Cheek, reported in 284 U.S. 493, 52 S.Ct. 257, 76 L.Ed. 419, and quoted in the response, governs. It is as follows:
"All installments, whether accruing before or after the death of the beneficiary named in the certificate of insurance, as a result, became assets of the estate of the insured upon the instant of his death, to be distributed to the heirs of the insured in accordance with the intestacy laws of the state of his residence, such heirs to be determined as of the date of his death, and not as of the date of the death of the beneficiary. The state courts, with almost entire unanimity, have reached the same conclusion."
I am unable to see why Ruth Pratt cannot represent her mother, when the statute prescribes that "Every illegitimate child * * * in all cases is an heir of his mother." If it be claimed that the inheritance traces from the grandmother, the general statute provides that her issue gets the property over collateral kindred where there is a sole survivor. Here Martha Pratt. Sr., left surviving no husband or child, and her "issue" surviving was Martha Pratt, Jr. The latter portion of the first subdivision of section 11301, C. O. S. 1921, is as follows:
"* * * but if there be no child of the decedent living at his death, the remainder goes to all of his lineal descendants; and if all the descendants are in the same degree of kindred to the decedent they share equally, otherwise they take according to the right of representation: Provided, that if the decedent shall have been married more than once, the spouse at the time of death shall inherit of the property not acquired during coverture with such spouse only an equal part with each of the living children of decedent, and the lawful issue of any deceased child by right of representation. If the decedent leave no surviving husband or wife, but leaves issue, the whole estate goes to such issue, and if such issue consists of more than one child living or one child living, and the lawful issue of one or more deceased children, then the estate goes in equal shares to the children living, or to the child living, and the issue of the deceased child or children by right of representation."
I think that Martha Pratt, Jr., a child of a dead sister of the insured and a granddaughter and sole descendent of Martha Pratt, Sr., who was the sole heir of the soldier, is entitled to the property as representing her mother, and the uncles of the soldier are not, and that rehearing should be granted, and the decision of the county court should be affirmed, the district court reversed.
Note. — See under (2), annotation in L. R. *Page 264 264 A. 1916E, 659; 64 A. L. R. 1124; 3 R. C. L. 739 et seq.; (3), 18 R. C. L. 408.