Hunt v. Hunt

Shepley, O. J.

—■ Three of the petitioners being illegitimate children of Moses Hunt, deceased, claim as his heirs, to be entitled to a distributive share of his real estate.

Who are entitled to inherit as heirs of a deceased person, is in this State, to be determined only by the provisions of the statute in force at the time of his decease.

No rules of the civil or common law, further than they are adopted by the statute, can afford them the least aid. The rights of the petitioners must depend entirely upon the provisions of the statute, c. 93, § 3.

The first clause of that section determines very clearly, by the following words what facts are required to be proved, to enable an illegitimate child to inherit from the father or mother as an heir. “ Every illegitimate child shall be considered as an heir of the person, who shall in writing, signed in the presence of a competent witness, have acknowledged himself to be the father of such child, and shall in all cases be considered as heir of his mother, and shall inherit his or her estate in the same manner as if he had been born in lawful wedlock.”

There is no other provision of the statute intended to have any effect upon the rights of an illegitimate child to' inherit as the heir to his father or mother. Every other clause of the section was inserted for a different purpose, which by the language used is clearly exhibited.

The language of the next clause is, “but he shall not be allowed to claim as representing his father or mother any part of the estate of his or her kindred either lineal or collateral,” without proof of other facts.

It is apparent, that it was intended to provide, that an illegitimate child might inherit as heir of the father or mother, while he could not inherit from a grand-father or mother, or from an uncle or aunt. From these he cannot inherit, as the third clause declares, “ unless, before his death, his parents shall have intermarried and had other children, and his father after such marriage shall have acknowledged him as aforesaid, or adopted him into his family.”

This clause surely was not designed to determine by what facts an illegitimate child should be considered as an heir to his father. The purpose was entirely different. It was to determine by what facts he should be regarded as an heir and capable of inheriting from lineal and collateral kindred. To use this clause or any part of it, to determine when he should inherit from his father, is to make use of it for a purpose wholly different from that for which it was enacted.

It is true, that it may authorize an illegitimate child, when so adopted into the family of the father, to inherit from lineal or collateral kindred, when he could not inherit from his father.

The substance of the argument against a literal construction admitting it, appears to be, that this would be contrary to the rules of the civil and common law;] and absurd to permit one to inherit as heir to his father, and through him the estate of lineal and collateral kindred, when he could not inherit the estate of his father.

The statute fixes its own rules without any regard to the rules established by other laws, further than it adopts them. It may make one an heir to lineal or collateral kindred without allowing him to inherit from ids father, as well as make him an heir to his father without allowing him to inherit from such kindred. The reason for such an enact- ■ ment, may perhaps be sufficiently discerned to redeem it from the charge of absurdity. When .a father has married the mother and has had other children by her, and has adopted her former illegitimate child into his family, he has given full notice to his kindred, that he regards such illegitimate child as one of his children; and if they do not wish it to inherit from them, they will have opportunity to prevent it. And the right of the father to determine whether such child shall inherit any part of his estate, is preserved to him, and is made to depend upon his own pleasure to make a written acknowledgment of him. Circumstances may arise under the provisions of the statutes, in which it might be- in furtherance of equality and apparent justice, that a father should place such a son in a condition to enable him to inherit from lineal or collateral kindred and not from himself. His mother may have property, and he will be entitled to inherit from her, when the father’s former children by another wife would not. But whether sufficient reasons for such a difference can be perceived or not, when it is clearly made by a legislative enactment, it is not the province of a judicial tribunal to destroy it by a forced construction. It can only be disregarded by a construction of the section, which would give no effect to the words of the first clause requiring a written acknowledgment of the father signed in the presence of a competent witness to make an illegitimate child his heir, if he had adopted him into his family. While such an adoption is not by the statute made to constitute any part of the requirements to make him an heir of his father.

The construction contended for can receive no aid from the subsequent provisions of the section.

The next clause provides for another distinct matter; under what state of facts legitimate and illegitimate children shall be regarded as brothers and sisters and shall inherit from each other.

The last clause saves to the father and mother their right of inheritance as heirs to their children in like manner as if all had been legitimate.

Each of these clauses was designed to accomplish a specific purpose clearly exhibited and not obscurely provided for, but not including any intention to affect the right of an illegitimate child to inherit from its father. All the children are by the last clause placed on a footing of legitimacy for certain purposes named, not for all purposes.

In this case the essential fact is wanting to enable three of the petitioners to inherit as heirs to their father, that he has made no such written acknowledgment of them as his children as the statute requires.

The Act approved on April 21, 1852, although it may have been enacted for that purpose, can have no effect upon their rights. The titles of these parties to the estate of their father had become established beyond the power of any legislative body to alter them, before the enactment of that legislative declaration. Their rights must still depend upon a legal and judicial and not upon a legislative construction of the existing statute.

Judgment for partition for the share of .Moses Hunt alone.

Tenney and Howard, J. J., concurred.

Appleton, J., dissented.