This is an appeal from a decree in an action for partition, rendered by Judge DeVore. The decree fully states the case and is as follows:
"Plaintiff brings above action, asking partition of a tract of land in Aiken County, claiming a one-half interest therein, and accounting by defendant administrator. From an agreed statement of facts it appears that Harriet C. Holley (formerly Mrs. Harriet C. Glover) died intestate on May 16, 1920, the owner of said land and some small personal estate. The defendant, Luther S. Glover, is her only surviving child, and administered on her estate. A daughter named Estelle predeceased her, dying intestate many years before the year 1906, leaving a daughter, the plaintiff, named Mary H. Southall. It is admitted, for the purpose of this action, that Mrs. Southall is the illegitimate daughter of said Estelle. It is admitted that defendant, Luther S. Glover, the only surviving child of Harriet C. Holley, is her only heir-at-law, and is entitled to the property in question, `unless it is determined that plaintiff, Mary H. Southall, is also one of her heirs-at-law and distributees.'
"Being an illegitimate, is Mrs. Southall entitled to the interest she claims in the property in question? Under the *Page 165 Act of 1906 (Act Feb. 24, 1906 [25 St. at Large, p. 156]), she is made an heir to the real and personal property her mother, Estelle, died seized and possessed of. The statute in question reads: `Any illegitimate child or children, whose mother shall die intestate, possessed of any real or personal property, shall be, so far as said property is concerned, an heir or heirs-at-law, as to such property, notwithstanding any law or usage to the contrary.' Section 1. Under the construction given this statute in case of Carroll et al. v.Burns et al., 116 S.C. 242; 107 S.E., 913, I find that the mother of the plaintiff, when she died intestate, was not seized and possessed of the property in question which her illegitimate daughter, the plaintiff, is now seeking to inherit; that plaintiff is not an heir-at-law to the property in question which said Harriet C. Holley died seized and possessed of, and intestate as to, on May 16, 1920, and that the defendant, Luther S. Glover, is the sole heir-at-law to said property. This answers the issue submitted to me.
"J.W. DeVore, presiding Judge."
Carroll v. Burns, supra, fully sustains the decree appealed from. At pages 237, 238, of 116 S.C. at page 913 of 107 S.E., we find:
"The foregoing section provides that an illegitimate child may become an heir of his or her mother, and prescribes the conditions upon which the illegitimate child have the right of inheritance: (1) The mother shall die intestate; (2) she shall be possessed of the real or personal property which the illegitimate child seeks to inherit; and (3) the illegitimate child shall be an heir only as to such property as was possessed by the mother, and of which she died intestate. At the time Emma Petty died, she was not possessed of the property which her daughter is now seeking to inherit. She cannot therefore be considered as an heir of her mother as to such property." *Page 166
The Act of 1920 (Act March 12, 1920 [31 St. at Large, p. 1039]) does not change the law, so as to affect this case, as Estelle Glover was never possessed of the property.
The judgment appealed from should be affirmed.
MR. JUSTICE WATTS concurs.