concurring.
I respectfully submit that the inadvertences of the dissent in this case should not go unchallenged.
In the first sentence of the dissent the writer says: “The opinion adopted in this case seems to imply that under the law these two little girls born out of wedlock can only be supported as paupers by county authorities.” This is far from a correct reflection of the holding of the opinion. The opinion holds only that a court of equity has no power to charge the estate with their support.
Whether or not the evidence is sufficient to satisfy the requirements of statute (Comp. St. 1929, sec. 30-109) with regard to acknowledgment of parentage by the deceased so as to permit these children to take as heirs is not a question for determination by a court of equity. That is a matter for determination under the probate power of the county court. Possibility of participation in the estate, and incidentally in that manner obtaining support, is not foreclosed by the majority opinion.
It may be pertinent to remark that if these children are entitled to take as heirs the evidence would indicate the entire estate would descend to them since there is no widow and no other children.
The statement in the dissent that “Equity has always had the power to make the remedy meet the need” is both fallacious and injudicious. It does not reflect accurately or fairly the design or functioning of equity jurisprudence.
The equity courts, the dissent to the contrary notwithstanding, have never assumed to override or put at naught the law or to invade the jurisdiction properly conferred by Constitution, and statute upon courts of probate.
The dissent would have this court hold that the district court in equity has power to charge the estate of the decedent with the support of these children nothwithstanding *695the statutes make full provision for descent and distribution and presentation and proofs of claim, and notwithstanding heirship and claims against estates are matters over which the county court, and not a court of equity, has jurisdiction.
Even if we were to assume that the evidence was sufficient to entitle these children to support under section 30-1301, Comp. St. 1929, or section 30-109, Comp. St. 1929, the determination of that matter and the amount of money or property to be impounded or awarded would still be a matter within the jurisdiction of the county court sitting in probate.
The cases cited in the dissent do not justify the implications drawn from them. The case of Pendrell v. Pendrell, 2 Strange, 925, deals only with the rules of paternity, an incidental question not determined in the present case. The case of Nolting v. Holt, 113 Kan. 495, 215 Pac. 281, is authority for recovery by two illegitimate children from a deceased father’s estate. The only questions determined were: Are the plaintiffs the children of James Holt, and, had he generally and notoriously recognized them as his children? An affirmative finding on these issues, under the Kansas statute, was sufficient to make the illegitimate children the heirs of the father. We have no such statute. In Ex parte Haycock, 5 Russ. 154, 38 Eng. Reprint, 985, the allowances Avere adjudged against the estate of a lunatic father. But it is specifically stated therein that such an allowance could no't defeat a bequest in the will. The dissent cites sections 43-706 and 43-711, Comp. St. Supp. 1941, in support of the position therein assumed. These sections deal only with the establishment of paternity and allowances of support against a living father. If they meant as much as implied in the dissent, they would be evidence only that they were enacted to provide a remedy which had not before existed, and it is conceded by all parties that the case at bar is governed by the law existing prior to the passage of this legislation. The quotations from Doughty v. Engler, 112 Kan. 583, 211 Pac. 619, and Puffendorf, Nature, bk. 4, ch. 11, *696sec. 4, constitute an enlightening discourse upon the obligations of a father to support his children, legitimate or illegitimate, during his lifetime, but they have absolutely no application in determining the rights of illegitimate children as heirs of the father or their right to support from the estate of the deceased father.
■ The dissent overlooks the fact that the descent and distribution of estates is purely statutory and asserts that “it would be a tragedy if the powers of an equity court are not broad enough to charge the education and support against the estate of the father who, in the case at bar, gladly supported his two children, born out of wedlock, as long as he lived.” While the temptation to engage in judicial legislation is ofttimes great, it is the solemn pledge of this court to limit itself to the judicial function and to reserve to the legislature those things which are contained within the legislative power. To do otherwise amounts to nothing more than judicial usurpation of authority. I submit that it would be a gross violation of this fundamental rule to judicially enact into law that which the legislature has declined to do.
As one of the majority I do not yield to the writer of the dissent in my solicitude for the welfare of these or any other children born out of wedlock, but my solicitude will not permit me to override plain provisions of law and fundamental principles and conceptions of equity in their interest. My solicitude will not permit me to concur in a precedent, the application of which, when there are both legitimate and illegitimate children, would favor the illegitimate over the legitimate.
I concur in the majority opinion.