Hughes v. Decker , 38 Me. 153 ( 1854 )

Cutting, J.

— George Hughes died in 1832, intestate, leaving no property, except a claim for injuries and damages by him sustained, against the government of Mexico, which his widow, the appellant, in 1851, recovered as administratrix on his estate. The intestate left no children, and was himself illegitimate; but left a mother, since deceased, leaving collateral heirs, who claim either directly or by representation a moiety of the property, while the widow claims the whole.

By the common law, the intestate, being films nullius, could have no ancestral or collateral heirs, and leaving no children or lineal descendants, his estate at his decease would have escheated to the State.

But the Legislature have in some particulars changed that law, and by the law thus changed - or mitigated, we must be governed in our determination as to the respective rights of these parties, which are to be decided as provided by statute “ regulating the descent of intestate’s estates,” in force at the time of the husband’s decease.

Section 19 of chapter 38, of the laws of 1821, provides, after the payment’ of debts, funeral expenses, &c., that “ if there be no kindred to the said intestate, then she (the widow) shall be entitled to the whole of said residue.” And we are satisfied that the term kindred, as used in this statute, means lawful kindred, and that the mother could claim no such relationship. Cooley v. Dewey, 4 Pick. 93.

But it is contended that the statute of 1821 was altered by that of 1838, c. 105, § 2, and incorporated into the R. S., c. 93, § 4, which is, that if any illegitimate child shall die intestate, without lawful issue, his estate shall descend to his mother; or, in case of her decease, to her heirs at law, and that the statute is retrospective and vests the whole estate in the appellees. Upon this point it is sufficient to remark, that the words of the statute are clearly prospective, indicating no expressed intention of a retrospective operation. Hastings v. Lane, 15 Maine, 134.

Neither do we perceive any force in the position, that because the claim was collected subsequent to the alteration of the law, although it accrued before, that the latter statute is to govern. With more propriety, it might be argued, if in this case the widow’s memorial could speak, that the sum recovered before the Commissioners on Mexican Claims was allowed to her personally as a small compensation for her bereavement.

But a more important question arises as to the original jurisdiction of the Judge of Probate, which depends, under c. 105, § 3, upon the fact, • whether or not, the intestate at. the time of his decease was “ an inhabitant of, or resident in,” the county of Lincoln, and if not, whether the proceedings before the Judge do not now preclude the appellees as the appellants from presenting that question.

Section 22 of the same statute provides, that “ the jurisdiction assumed in any case by a Judge of Probate, except in cases of fraud, so far as it depends on the place of residence of any person, &c., shall not be contested in any suit or proceedings whatever, except on appeal from the Probate Court in the original case, or when the want of jurisdiction appears on the same record.”

No fraud has been proved and the Probate record, made up from original documents, filed by both parties, describes the intestate, invariably, as “ late of Wiscasset in the county of Lincoln.”

Is that question now properly before us on the appeal? It seems not to have been made at the final or any preliminary hearing before the Judge of Probate, but the contention then was as to the distribution of the estate under the existing laws of this State, and particularly that of 1852, c. 260, referred to in the probate decree. But the appellants are not prohibited from showing such want of jurisdiction, provided it comes legitimately within any one of the reason's of their appeal filed in the probate office, to which by law they are strictly confined.

The first reason assigned; to wit, “ Because the items of credit in said administration account were unreasonable, improper, unjust and illegal, and ought not to have been allowed,” clearly admits the jurisdiction of the Probate Court. The other five reasons are in substance, that the decree is against law; against the law regulating the descent of the estate of deceased illegitimate persons; that the widow is entitled to no part of the estate and the appellants are entitled to the whole; but if to any, only to one half and the appellants to the residue; and consequently in not so determining the decree is erroneous.

Now to what laws regulating distribution did the appellants refer ? To the laws of this,.or of a foreign State, as now contended for by tbeir counsel ? If to tbe latter, it is even then difficult to perceive any intentional impeachment of jurisdiction, but rather a submission to that tribunal, of which complaint is now made, that its decision was erroneous, because instead of being governed by the statute of 1852, then in force, and by virtue thereof distributing to the appellants one half, it gave them only one fourth part of the estate. But the Act of 1852, an Act, it would seem, of special legislation and very beneficial to the appellants, had it been constitutional, was repealed by the Act of 1853, c. 37, and the great trouble now seems to be, that the change in the law after the appeal, did not change the construction to be given to the reasons previously assigned for the appeal.

If it were intended to raise the question of jurisdiction, it must be admitted that the appellants were endowed with a degree of prescience truly remarkable, and a want of language to communicate such fact equally so, for the domicile of the intestate at the time of his decease was not questioned in the Probate Court, and the evidence of that fact was procured long after the’ appeal, but not long after the repeal of the Act of 1852. If the appellants had designed to have put in issue a question of jurisdiction, they could very easily have assigned it specifically, as one of their reasons, as in Harvard College v. Gore, (5 Pick. 370,) which would have left nothing for inference or controversy.

We are not satisfied that either of the reasons assigned puts in issue the jurisdiction, and consequently the testimony offered, other than the agreed statement before the Probate Judge, must be excluded, and the rights of the parties determined according to the laws of this State applicable thereto, and to which we have already referred.

The decree of the Judge of Probate is reversed and a decree must be entered, that Mary Hughes do retain in her hands the whole balance of said estate, and that she recover costs since the appeal.

Shepley, C. J., and Tenney, Rice and Appleton, J. J., concurred.