(dissenting) — I respectfully dissent from the majority opinion.
This case involves the question of inheritance from an illegitimate child Avho died intestate survived by a spouse but no issue. His first wife died in laivful wedlock and plaintiffs Anna Smail, Margaret Schine and Ilomer O. Debo are her sisters and brother. Intervenors Vera Dwyer and Kobert Jamieson are sister and brother of intestate’s mother, Sarah Jamieson Bamsay, Avho predeceased the intestate. Intestate’s father is unknown, and the majority opinion assumes that he, died prior to intestate and that he left no heirs. Whether this assumption be correct or not is immaterial as it is conceded that there Avas no mutual recognition by the father of the illegitimate intestate. The surviving spouse, plaintiff Emma Bamsay, is conceded to be entitled to receive nil of the estate up to seventy-five, hundred dollars and one half of the excess. It is also conceded that the intervenors, as heirs of Sarah Jamieson Bamsay, are entitled to receive one half of the balance, or one fourth of the excess. The intervenors claim the right to the remaining one fourth of *720the excess, while the plaintiffs Smail, Schine and Debo claim the right to this one fourth, under section 636.41, Code, 1946. The trial court and the majority opinion establish this right in the plaintiffs. I cannot agree.
Inheritance is not a natural right but is purely statutory. In re Estate of Emerson, 191 Iowa 900, 901, 183 N.W. 327; In re Estate of Fitzgerald, 223 Iowa 141, 272 N.W. 117. An estate of inheritance is an estate which may descend to an heir. Harris v. Harris, 130 W. Va. 100, 43. S.E.2d 225. In Mitchell v. Vest, 157 Iowa 336, 136 N.W. 1054, we held that an heir is one who has inheritable blood. In the absence of inheritable blood there cannot be an inheritable estate.
Sections 636.45 and 636.46, Code, 1946, deal with inheritance from and by an illegitimate child. Prior to their enactment, the only inheritable blood stream of the illegitimate child was that of the heirs of his body. As stated in In re Estate of Clark, 228 Iowa 75, 114, 290 N.W. 13, 31: “The purpose of the legislature in enacting sections 12030 and 12031 [sections 636.45 and 636.46, Code of 1946] was to make the blood stream of the illegitimate inheritable.”
Section 636.45 provides: “Illegitimate children inherit from their mother, and she from them.” Section 636.46 states: “They [illegitimate children] shall inherit from the father when the ■paternity is proven during his life, or they have been recognized by him as his children; but such recognition must have been general and notorious, or else in writing. Under such circumstances, if the recognition has been mutual, the father may inherit from his illegitimate children.” (Italics added.)
It will be noted that the blood stream of mother and illegitimate child is inheritable without qualifications; that the blood stream of the father and illegitimate child is inheritable if there has been recognition. Thus an inheritable estate is created in the mother and such an estate is created in the father under certain conditions.
In examining these statutes, we said in Milburn v. Milburn, 60 Iowa 411, 413, 14 N.W. 204: “For the purpose of inheritance, an illegitimate child, when recognized by its father, stands on precisely the same footing as if it were legitimate. * * * Such recognition legitimatizes the child.” (Italics added.) In Hast*721ings v. Rathbone, 194 Iowa 177, 184, 188 N.W. 960, 963, 23 A. L. R. 392, we said: “It is, then, the rale in this state that an illegitimate child whose paternity has been recognized or established as required by our Code becomes entitled to all of the rights of a legitimate child, so far as the general laws of descent and inheritance are concerned.” While these cases recognize the right of the illegitimate child to inherit from the father, it does not follow that this right is mutual and that the father thereby is entitled to inherit from the child. In the absence of mutual recognition there is no inheritable blood in the father and hence there is none in his heirs. Meier v. Lee, 106 Iowa 303, 76 N.W. 712.
The majority opinion cites and relies upon the cases of In re Estate of Clark, 228 Iowa 75, 290 N.W. 13, and McAllister v. McAllister, 183 Iowa 245, 167 N.W. 78. The Clark case holds that the word parents in sections 636.40 and 636.41 includes the natural parents of an illegitimate child. Webster’s New International Dictionary, Second Edition, defines parent as, “One who begets, or brings forth, offspring; a father or mother.” Under this definition there is no question but that the word parent does include the natural parents of an illegitimate child, and, under the facts in the cited case where there was held to be mutual recognition between father and child, it is clear that the term “parents” in said sections was applicable. This is true because of the recognition rather than as a general rule. The majority opinion with reference to section 636.41 quotes from the McAllister case, supra, that section 636.41 “contemplates a situation where, under the statutes preceding it * * no heirs are in existence, and in these circumstances, declares that the uninherited portion shall go to the widow of the intestate or her heirs, under the rules previously enacted.” In that case it was a question of inheritance through the mother of intestate, a legitimate child, and the mother being dead without heirs, the sections were held to apply. The case is not in point, in my judgment, although under section 636.45, Code, 1946, the same result would follow if intestate had been illegitimate.
The majority opinion also states’ that “the clause in section 636.41, ‘If heirs are not thus found,’ refers to heirs of the intestate” ; that the father did not recognize intestate; that “he prede*722ceased the intestate and bad no surviving heirs”; that “it is clear there was no one in this line [father] eligible to take the share of intestate’s property”; that “heirs of the intestate were ‘not thus found.’ It was ‘the portion uninherited’ within the meaning of section 636.41, and the provisions of that section became applicable.” This reasoning is sound where, under section 636.46, there has been recognition, as. there is then inheritable blood through the father and hence an inheritable estate under sections 636.32 and 636.40. But, in my judgment,' this reasoning is not sound where, as in the instant case, there is no recognition and hence no inheritable estate through the father. There being no inheritable blood through the father his heirs have no interest.
In my judgment, the general rules of descent, sections 636.31 to 636.41, inclusive, do not apply where there is an intestate illegitimate child survived by a spouse, but no issue, in so far as the half of the excess over seventy-five hundred (now fifteen thousand) dollars is concerned, where there has not been mutual recognition. To determine the descent of this portion of the estate it is necessary to turn to the statute which creates the inheritable blood, and in this case only section 636.45 is applicable. This section grants to the mother the right to inherit from her illegitimate child without limitation as to the amount, nor is there any other statute creating other “inheritable blood lines.” The estate must be considered in its entirety (one half of the excess) rather than in two divisions, or blood streams, as is the case of legitimate children or where there has been mutual recognition between the father and the child. In re Estate of Felle, 237 Iowa 1082, 23 N.W.2d 910.
I would reverse the trial court.