(concurring.)
I concur in the result dismissing the proceeding for the reason that it is not made to appear that the district court acted beyond or in excess of jurisdiction, or did not regularly pursue its authority; and for the further reason that there was a plain, speedy, and adequate remedy by appeal. Our statute provides that the writ of certiorcm may be granted “when the inferior tribunal, etc., exercising judicial functions has exceeded the jurisdiction of such tribunal, etc., and there is no appeal, nor, in the judgment of the court or judge, any plain, speedy, or adequate remedy.” It further provides that “the review upon this writ cannot be extended further than to determine whether the inferior tribunal, etc., has regularly pursued the authority of such tribunal, etc.”
*294Stripped of unnecessary complications, thie case is this: Joseph T. Anderson, issue of a polygamous or plural marriage, died intestate without issue. He owned real estate which he had obtained by deed from his mother. The real estate was her separate property. She died before his decease. Am administrator was appointed to administer his estate. His only alleged1 heirs are Annie 0. Kohwer, the plaintiff, who is his grandmother, his mother’s mother, and Nephi P. Anderson, his father. Both claim the property as the sole surviving heir of Joseph T. Anderson, deceased. Such proceedings, in the course of the administration of the estate, were had whereby the court distributed the property to Ne-phi P. Anderson. Motions for a new trial, and to vacate the order, and to dismiss the proceedings, for want of jurisdiction, and applications for the appointment of another and different administrator, were made and denied. Then this application was here made for a writ of certiora/ri.' In the petition for the writ' it is alleged that the distribution was made without notice- that the plaintiff was deprived' of her right to be heard; that there was no trial or hearing; that the decree of distribution was not supported' by findings or pleadings; that the court acted without jurisdiction and due process of law; .and that there was no. appeal nor plain, speedy, and adequate remedy at law.
The record, as certified to us, shows the filing of a proper petition for distribution, a judgment or order of final distribution in which are recited' all jurisdictional facts with respect to notice, trial, and a hearing, and which contains, among others, a finding that Nephi P'. Anderson was the sole surviving heir of the deceased, and which adjudicates and distributes the property accordingly. There is nothing aliunde made to appear disputing these recitals of jurisdictional facts as to notice, hearing, and a trial. I thepefore think the allegations of the petition that the distribution was made without notice and a hearing are not sustained by the record, or by proof dehors the record, and hence concur with my associates that nothing is made to appear wherein the district *295court exceeded' jurisdiction or bad not regularly pursued its authority.
The principal things argued by plaintiff involve questions of whether the deceased left an estate, and whether Annie 0. Kohwer or Nephi P. Anderson was entitled to it, and it is chiefly the determination of the latter that is sought by this proceeding. I think the court had undoubted jurisdiction to hear and determine such questions and to make a distribution accordingly. Moreover, our statute expressly provides for an appeal from all final orders and judgments of distribution. I cannot see wherein the remedy by appeal is not plain, speedy, and adequate to correct whatever error may be or has been committed by the court in such particulars. The statute prescribes within what time an appeal m>ay be taken, and to' have proceedings reviewed on appeal the appeal must be taken within that time. Whether the plaintiff how has, or had, this right of-an appeal when she applied for this writ, is not the question. The pertinent question is: Did she have the right of an appeal on merits from the final order or judgment of distribution,' and on such a proceeding to have corrected whatever erroneous rulings may have been committed by the district court? Having such right, she cannot be permitted to resort to certiormi and to have the functions of that writ converted into a writ of mere review because she, by her own neglect or inattention, may have forfeited or abandoned her right to appeal, or voluntarily may have failed to exercise it by pursuing an unavailing and inappropriate remedy. Our right to review a proceeding on certiorari is conferred when it is made to appear that the inferior tribunal exceeded jurisdiction and there is no appeal nor any plain, speedy, and adequate remedy, and thia statute forbids a review on such ?ai writ to be extended further than to determine whether the inferior tribunal regularly pursued its authority. The plaintiff in her petition alleged that the district court had exceeded jurisdiction, and that there was no appeal nor any plain, speedy, or adequate remedy ait law. When the certified record of the court below is examined, it is found that these allegations *296have no support either in law or fact. I therefore think the only proper disposition of the case is a dismissal of the proceedings. When my associates reached the conclusion, with which I concur, that it is not made to appear that the district court exceeded jurisdiction or had not regularly pursued its authority, the functions of this writ were spent. To proceed further, as have my associates, to a review of a ruling involving a matter confessedly and undoubtedly within the jurisdiction of the lower court and to a determination of whether the court correctly or erroneously distributed the property to Nephi P. Anderson or to Annie C. Eohwer, further than to inquine and determine whether the district court in such particular regularly pursued its authority, is, it seems to me, to convert this writ into- one to review mere error, to' offend against the statute forbidding the writ to be so extended, and to violate the familiar rule that what «is not juridically presented cannot be judicially decided. And in this respect it is wholly immaterial whether the deceased left an estate acquired by him by deed from his mother, or whether such estate was acquired by him under the law of succession and by inheritance from his mother. In either event the deceased died leaving an estate consisting of the real estate, and the question of whether Nephi P. Anderson or the plaintiff, Annie C. Eohwer-, is entitled to it is the same.
Moreover, the correctness of the conclusion reached by my associates on the merits that Nephi P. Anderson, and not the plaintiff, is entitled to the property, may well be doubted. But, as such matter is not judicially presented and not properly before us in this proceeding, I express no opinion on it, and1 refer to it only to show the importance of the question and that the determination of it should be withheld until it is judicially presented. The deceased was issue of a polygamous or plural marriage. It is not now the question whether such marriage, and like marriages in this state> was entered into in good faith, or as to whether the parties to such marriages regarded the issue thereof as did those of monogamous marriages. Let that be conceded. Nevertheless, such marriages, under the law, were unlawful, and the issue thereof *297illegitimate. That is conceded. At common law an illegitimate child had no inheritable blood and was incapable of inheriting from his father or mother, and was also incapable of transmitting an inheritance to either. He conld transmit property to the heirs of his body only. The common law is in force in this state except as modified by statute. In many of the states the rule at common law respecting inheritance .and transmission of estates by illegitimate children has been changed by statute. It has been changed by our statute. Under statutes to remove such disabilities at common law, it has generally been held by the courts that-the extent of the statutory change from the rules of the common law must be clearly defined. (McCully v. Warrick, 61 N. J. Eq. 606, 46 Atl. 949.) And it has been held by all the courts that it belongs to the legislature, and not the courts, “to define and establish thie transmission of estates.” (Keeler v. Dawson, 73 Mich. 600, 41 N. W. 700.) It has also been •quite generally held that statutes which legitimated an illec gitimate child or children and gave them the right and capacity to inherit from the mother or father or both, as though born in lawful wedlock, did not, however, give the mother or father the right to inherit from such child or children. (Doe v. Bates (Ind.), 6 Blackf. 533; McCormick v. Cantrell, 15 Term. 615; Bent v. St. Vrain, 30 Mo. 268; Miller v. Stewart, 8 Gill (Md.), 128; Croan, etc., v. Phelps’ Adm’r, 94 Ky. 213, 21 S. W. 874, 23 L. R. A. 753; Lessee of Little v. Lake, 8 Ohio, 290; Blair v. Adams, 59 Fed. 243.) Statutes removing common law disabilities of illegitimate children are for their benefit and not their parents. (Butler v. Elyton Land Co., 84 Ala. 390, 4 South. 675.) And the cases above cited show that, in order that the parents or either of "them may have the right to inherit from such a child or children, the statute must grant that right by apt and appropriate words and language which fairly conveys such an intention.
Now, looking at our statute to ascertain to what ¡extent the common law disabilities of illegitimate children have been removed, and as to their capacity to inherit and transmit an inheritance, and the right of the parents to inherit *298from them, we find that by Comp; Laws 190*7, sec. 2833, it is provided that illegitimate children have the right and capacity to inherit from the father who had acknowledged himself to be the father, and in all cases from the mother in the same manner as if they had been born in lawful wedlock. Then the next section prescribes and defines the capacity of an illegitimate child to transmit an inheritance' and expressly provides who' miay inherit from or through it. It reads: “If am illegitimate child dies intestate, without lawful issue, his estate goes to his mother, or in case of her death to her heirs at law.” Under these statutes, which is a part of the Oode prescribing and defining the law of succession and of transmitting property of decedents, the mother and her heirs., but not the father, have the right to inherit from such a child or children. That is very plain. And thereunder the plaintiff, the deceased’s grandmother, his mother’s mother, and not the father, is here entitled to the property, unless some; other statute can be pointed to which modifies or abrogates these provisions and1 gives the father the right to inherit. The only statute so pointed to is a subsequent and special statute which legitimated the issue of certain polygamous or bigamous marriages born on or prior to the 4th day’ of January, 1896, and which provides that “such issue are entitled to inherit from both parents, and to have and enjoy all rights and privileges to the sarnie, extent and in the sáme manner as though bom in lawful wedlock.” Of course, the legislature regarded such issue illegitimate, and as having no more or greater capacity to inherit or to transmit an, inheritance than an illegitimate child at common law, and. that no one except the heirs of his body had the right to1 inherit from such child, except as modified and provided by statute. It belonged to the legislature to definía and establish the transmission of estates and to prescribe who may inherit. 'The statute here must be looked at dispassionately and the will of the legislature ascertained from the language employed by it. Undoubtedly the statute was passed for the benefit of such issue, not for their parents. Such issue by this statute were *299legitimated. That is dear. But under the authorities, to eonfier on another the right to inherit from such issue, that is not enough. The legislature evidently thought that was not enough to even give such issue the right to1 inherit, and hénce expressly provided that “such issue are (entitled to inherit from both parents,” but restricted the right to inherit from the parents only, and is silent as to any right of the parents or either of them to themselves inherit from such issue. Can this statute be construed to mean that such issue have the right to inherit as issue bom in lawful wedlock, when the legislature by express terms restricted the right to inherit from the parents only, and that the father is granted the right to inherit from such issue when the statute is silent as to the right of any orna to inherit from such issue except as may be implied from the language that “such issue,” not the parents, are entitled “to have and enjoy all rights and privileges to the same extent and in the sarnie manner as though bom in lawful wedlock ?” That is the question. Courts generally holding that statutes which legitimated an illegitimate child or children and gave them the full right to inherit as children born in lawful wedlock, nevertheless did not give the parents a right to inherit from such child1 or children, in the absence of apt and appropriate language, granting such right, can it fairly be said that this statute grants the father such a right, and thereby and in such particular modified the general laws of succession heretofore referred to? I confess the matter is not free of doubt, but I am clearly of the opinion that the determination of it ought to be reserved until it is properly and judicially before us.