Miller v. Miller

LEARNED, P. J.

(dissenting) :

There is no doubt that the law of this State governs the descent of land therein. That law may direct that the land shall descend in any way which seems best to the legislative power. In fact, the descent of land in this State is regulated not by feudal principles nor by the common law of England, but by our own statutes. Land of an intestate descends first to his lineal descendants. (1 R. S. [m. p.], 751, §§ 1 and 2.) But illegitimate children are not entitled to inherit under any of the provisions of the chapter of descents, (except as this rule has been modified by certain subsequent legislation). (1 R. S. [m. p.], 754, § 19.) The plaintiff is the lineal descendant, the child, of the deceased. Was he legitimate at the time of the death of his father ?

The plaintiff’s domicile of birth -was, the kingdom of Wurtcra-berg; of which kingdom both of his parents were subjects. They subsequently became domiciled in the State of Pennsylvania, and his father became a citizen of the United States by naturalization. While they were domiciled in Pennsylvania, and while he was a minor and was there with them, they were lawfully married in that State.

By the law of the domicile of birth, Wurtemberg, and by the law of the acquired domicile, Pennsylvania, the plaintiff was legitimated by this subsequent marriage of his parents. As they were at the time of such marriage domiciled in Pennsylvania, and as he, their minor child,, was also domiciled with them there, the law of Pennsylvania declaring him to be legitimate, governs bis status. The law of the personal status must, in the language of Lord *517Stowell, be tried by reference to the law of the country where the status originated. (Dalrymple v. Dalrymple, 9 Bligh, 45.) If two persons contract marriage in the manner which is lawful in the place of their domicile, and where the marriage is contracted, such marriage must be lawful, and the offspring must be legitimate, even in a country where other or additional forms are necessary to the validity of a marriage. (Story Conf. Laws, § 113, and cases there cited.) And the effect of marriage on the status of children must be determined by the lex loci contractus. (Wharton Int. Law, § 91; Huberus’ Conf. Laws, tom 2, lib. 1, title 3, §§ 2 and 3.)

That the status of legitimacy arising under the law of one nation is to be recognized by other nations was acknowledged in the strongest terms by the English courts in the very case in which, on other grounds, they refused to permit the legitimated child to inherit.

The case of Birtwhistle v. Vardill (9 Bligh, 7; 2 Clark & E., 571) involved a question very similar to that here presented. In that case, a son was born of Scottish parentage, in Scotland, before the marriage of his parents ; and the parents afterwards intermarried there. By the law of Scotland this marriage legitimated the son. In the opinion given by Chief Baron Alexander, on behalf of the judges, ho says : “ The comity existing between nations is conclusive to give the claimant the character of the eldest legitimate son of his father, and to give him all the rights which are necessarily consequent upon that character.” But he held that the son could not inherit in England, because, although he was legitimate, yet he was not born in wedlock. Thus he says : “We have, therefore, considered whether, by the law of England, a man is the heir of English land merely because he is the eldest legitimate sou of his father. We are of opinion that these circumstances are not sufficient of themselves, but that we must look farther and ascertain whether he was born in lawful wedlock.”

This case was not decided at the time when this opinion was given. It was again argued before the House of Lords, and the opinion of the judges was given by Chief Justice Tindal (7 Clark & F., 895, at p. 925). He there repeats the views of Chief Baron ALEXANDER, and says that the law of the country where the *518claimant was .born is allowed to govern bis status as legitimate. But he says that the maxim of England in respect to the descent of 'land is that the son must be bom after actual marriage; and that this is a rule juris positivi. He bases the statement that such is the rule upon the form of the writ issued to the archbishop (Glenville Bk., 7 C., 13), and upon the statute of Merton (Bracton Bk., 5 C., 19). The form of the writ was : “ Bo quod ipsi bastardus sit natus ante matrimonium matris ipsorum.” (1 Reeves’ Hist, by Finlason, p. 168.)

The same arguments and views had been used in the court below. (S. C, 5 B. & C., 438.)

. Thus, we have the distinct and repeated assertion of the judges of England that a son, thus legitimated in Scotland, was legitimate in England ; and that the reason why he could not inherit was that the English heir must be, not merely legitimate, but born after wedlock. If a statute of England had declared that the eldest legitimate sou should inherit, it would seem that the decision of that case must have been different.

The distinction thus made by the English court between one who is legitimate and one who is born in wedlock seems strange. It was criticised by Lord Beougham: in that case. But it was made the ground of the decision. And the same view was again, taken in the case of In re Don (4 Drewry, 197). There it was admitted that the son was legitimated by a subsequent marriage, but it was held that though he was legitimate his father could not inherit from him. And if the highest tribunal in England, with the authority of the English judges also, has thus recognized the effect of a foreign law legitimating a son, we need not cite any ■ other authority on that point.

It should be noticed at this point, that when the common law of England, on the subject of the descent of land, took form, it was hardly possible for the question to arise as to the effect of the law of a foreign country in legitimating a child. Because, generally speaking, it is only the citizens, or subjects, of a country whose status is effected by its laws. Persons born out of the king’s dominions ■or allegiance were aliens, and being aliens could not inherit land. (1 Bl. Com., 373.) If, therefore, in the early times, any child had been legitimated by the subsequent marriage of its parents in *519a foreign country, it would be hardly possible that such child should be, in other respects, capable of inheriting. Hence it is 0 that the only question which arose in early times was as to the effect of a subsequent marriage in England, and between English subjects. And it was on this point that the barons refused to adopt the rules of the civil law. (1 Reeves’ Hist. by Finlason, pp. 108, 299.) It was after the two countries of Scotland and England came to be united that the question, as to the effect, of foreign legitimation, arose. And thus too, in the present case, we are brought to meet the question as to the effect of a law of legitimation of a sister State upon those who wore subject to its law, and who, at the same time, as citizens of the United States, are-not aliens in our State. And, unless we deny to a sister State the right to declare the status as to legitimacy of those whose parents are there domiciled and there contract marriage, we must admit that the plaintiff is legitimate here. If legitimate, he inherits.

The case of Smith v. Don, Admr. (34 Penn. St., 126), is placed on the ground that by the laws of Pennsylvania none can inherit who are “ born out of lawful wedlock.” It has already been stated that our statute contains no such language.

In Lingan v. Lingan (45 Ala., 410), the court say that their own statutes provide two modes of legitimation, and that the law does not recognize foreign legitimation. It has already been shown that, even in England, the comity of nations does recognize foreign legitimation. And see Story Confl. (ut supra).

In Scott v. Key (11 Louis. Ann., 232), legitimation by an act of the State of Arkansas was held to entitle a child to inherit.

It is argued that the word “legitimate” means “born in lawful wedlock.” That such is not its solo meaning is manifest from the case of Birtwhistle v. Vardill above cited, in which it is repeatedly admitted that a son might be “ legitimate ” who was not born in wedlock. The definition in 1 R. S. [m. p.], 642, § 1 is limited expressly to the title of the statutes which there commences.

The meaning of the word has reference to the law of the State which can create the status. “ Legitimate,” under the laws of Scotland, and generally under the civil -law, applies to a child of *520persons lawfully married before or after its birth. Can it be said that such a child loses its legitimacy when it goes into England or comes into this State ? Is the child of parents lawfully married in Pennsylvania, legitimate there and illegitimate here ?

This is not a question as to the effect of foreign laws of adoption. Our statute gives the inheritance, not to adopted children, but to “lineal descendants ; ” words which do not include adopted children.

Of course, this is a question of law not of equity. But, inasmuch as the question is new in this State, and no precedents have already been made to guide the action of parties, it is proper to consider the justice of the case. There had existed among the Romans a practice of concubinage, a permanent connection without the sanction of marriage. (Heinec Synt. Adp. 1. 1., § 38.) Whether a connection was marriage or concubinage appears to have depended on intent. (Dig., XXV, 7, 4.) Constantine established the rule that children who had then been born in concubinage, called natural children, should be legitimated by a subsequent marriage. (Code V., 27, 5.) Other emperors extended the rule, so that at last a subsequent marriage gave to children bom in concubinage full legitimacy. (Inst. I., 10, 13; C. V., 27, 10; Mackenzie Rom. Law, 126; Voet Comm. Adp., XXV, 7, 6; Heinec Synt., 1, 10; § 23, etc.) Justinian established another mode of legitimation, where the emperor, at the request of the father, declared a child legitimate. Thus it appears that legitimacy can bo conferred by the supreme power of the State.

The canon law adopted the rule : Tanta est vis matrimonii ut qui antea sunt geniiipost contractum matrimonium legitimi habean-tur. (Decret. IV, 17, 6.) The same rule has been established in countries which receive the civil and canon laws, and by some States in this country.

The parents of the plaintiff, trusting to the laws of Pennsylvania, did what they could to repair the injury inflicted upon him. Whether he should be legitimate, or illegitimate, was a matter which concerned him and them only. That State had provided a mode by which his parents could give him the status of legitimacy. It does not appear that there was any legal barrier to the mai'-riage of his parents, either when it was contracted, or at the *521time of his birth. And the act of the parents in thus relieving the plaintiff from the stain on his birth was just and righteous. It ought to have its full force here ; the full force given to it by the law of Pennsylvania. That State had a right thus to encourage two persons, who were subject to its laws, to change from a condition of unlawful connection to the lawful condition of marriage ; and it had a right to promise them that, by so doing, they should give their child the full benefit of legitimacy.

We cannot doubt that the father trusted to this law of Pennsylvania and believed that his son was legitimate. In this belief he died intestate, feeling no necessity of making any will, and supposing that his son would inherit his property. It is just that the son should inherit, and I see no rule of law which forbids. There is nothing requiring us to construe the statute of descents so as to exclude children made legitimate by the consent of their parents and by the authority of law, subsequent to their birth.

I have not here considered the question how far the Constitution of the United States, requiring full faith and credit to be given to the public acts of other States applies to the present case. (Const., art. IV, § 1.) Yet it may be asked whether, if a special statute of Pennsylvania had declared this plaintiff legitimate, this State could disregard that statute ? And is not a general act of equal force with a private statute ? But I have preferred to put the matter on the general ground of the authority of every State or country over the status of its citizens ; and on the ground that such status goes with the person, even to other States and countries.

Present — LearNed, P. J.; BoardmaN and Follett, JJ.

Judgment affirmed, with costs.