Edwards v. Gaulding , 38 Miss. 118 ( 1859 )

HARRIS, J.,

delivered the opinion of the court.

The nuncupative will of Cecilia Reagen, deceased, was admitted to probate in common form, in the Probate Court of Hinds county, on the testimony of George J. Hulme and William L. Rhodes.

Roderick M. Rutland, claiming tobe the brother of the decedent, and Archibald A. Gaulding et al., claiming to be the nephews and nieces of the said Cecilia, filed their petition in the Court of Probates, as the heirs at law of said Cecilia, seeking to set aside the probate upon the ground of fraud, mental incapacity, and the invalidity of the acts relied on to establish a nuncupative will.

The answer to the petition states that Cecilia Reagen was an illegitimate ; denies that petitioners are her heirs at law and distri-butees ; denies all fraud in the execution of the will, and asserts its validity, both as to the capacity .of the testatrix and the act of nun-cupation.

Upon this petition and answer, the Court of Probates directed two issues to be made up and tried by a jury, to ascertain, 1st, the heirship of petitioners; and, 2d, devisavit vel non. These issues were both submitted at the same time, to the same jury, against the objections of the administrator and appellant, and this constitutes the first ground of error complained of.

It has been certainly a leading object in legal proceedings, especially by the principles of the common law, to avoid duplicity in pleading, or a multiplicity of issues. The great design of the system of special pleading established by the common law, was to reduce the mutual altercation of the parties to a single issue, that the jury might readily comprehend and decide the truth between them. And even under our relaxed system, it has always been the just policy of courts, to avoid all unnecessary issues.

In the case before us, under the provisions of our statute (Hutch. Code, 651, § 29), “ any person interested” had the right to contest the validity of the will in question. If the conscience of the court wras not sufficiently informed by the petition as to the interest-of the petitioners, it certainly had the right to order an issue to be ascertain that fact, but in doing so, the rules of law, established for convenience, certainty, and economy, as well as the attainment of justice, require that the preliminary question, upon the determination of which the necessity for further inquiry wholly depends, should bo first disposed of. The'whole merits of the controversy might otherwise be investigated and determined at the suit of mere strangers, having neither right nor interest therein; when, if the single preliminary issue, of the interest of the party petitioning, and his right to file his petition, had been submitted by itself, the expense, delay, and perplexity of such further investigation, might oftentimes be avoided. Another reason why such a practice should not be indulged, is that it must result, as in this ease, in the violation of other important rules of law, securing for just and wise purposes, certain rights to parties to such issues. The party affirming the truth of the facts involved in an issue, taking upon himself the burden of proving those facts, is allowed the opening and conclusion of the argument. But if a multiplicity of issues can be thus' submitted to the same jury, at the same time, by the order of the court, the right thus secured may, without necessity, by such order, be taken from the party entitled thereto, on the main question involved, and transferred to his opponent. We think it, therefore, most safe, just, and consistent with the principles and practice heretofore prevailing, that the Court of Probates in ordering the trial of issues to inform its conscience on disputed facts, should submit but a single issue to the same jury; when that issue more especially, as in this case, involves the ascertainment of a precedent fact, the determination of which may preclude further inquiry.

It is next insisted in argument by counsel for appellants, that the court erred in excluding the record of the former probate of the will in common form. We think there was no error in this. * As a judgment, it could not affect the parties to this proceeding, who were neither parties nor privies, nor in any manner notified of the former probate and judgment; and having no opportunity to contest it, or to be heard in opposition to it, on well-settled principles, it could have no binding force or validity as to them.

The most important point involved in this cause, arises upon the construction of the Act of 23d February, 1846, conferring certain rights upon illegitimate children. By the 4th section of that act, Hutch. Code, p. 501, it is provided that “ Hereafter, all illegitimate children shall inherit the property of their mothers, and from each other, as children of the half-blood, according to the Statutes of Descents and Distribution now in force in this State.”

The record shows that the decedent, Cecilia Reagan, was herself an illegitimate child of Jemima Cotton; that Josiah Horton was also an illegitimate child of the said Jemima Cotton; that the petitioners, except Rutland, are the legitimate children of Josiah Horton ; that the said Josiah Horton died before the 23d February, 1846, and that the said Cecilia Reagan died in the year 1852, leaving no heirs or distributees, unless petitioners are to be so regarded; that the said Rutland is the legitimate child of the said Jemima Cotton, born in lawful wedlock, after the birth of the said Cecilia Reagan and the said Josiah Horton.

The question here presented, therefore, is, whether .under the Act of 1846, above quoted, the legitimate children of an illegitimate half-brother, who died before the passage of the act, and before the death of his half-sister, Cecilia Reagan, can inherit from her, she being illegitimate.

It is insisted that the act in question was designed to confer upon bastards, as a class, the right of inheritance, and to prevent escheats, and being a remedial statute, it should be liberally and beneficially expounded, so as to advance the remedy, and suppress the mischief, intended to he remedied.

If the intention of the legislature were obviously to confer inheritable blood, or the right of inheritance generally, upon bastards as a class, our duty would be plain and easy. But the restricted language of the act in question, especially when considered in reference to the policy of the law in all ages and countries, in reference to this unfortunate class, clearly shows that it was not the design of the legislature to destroy the disability of bastards generally, or to confer inheritable blood. Not only the laws of England, but those of all other civil states, formerly excluded bastards from inheritance, unless there' was subsequent legitimation; and this, to discourage illicit commerce between the sexes. 2 Kent (9th edit.), 230.

It seems to have been the design of our legislature to modify the rigor of the ancient law ;■ but, at the same time, not to give too much countenance to the indulgence of criminal desire ; while it is designed not to suffer illegitimate children to be cast naked and destitute upon the world, it is certainly not designed to give license to promiscuous concubinage, by destroying the penalties, disabilities) and degradation which the common law has wisely attached, to such unlawful indulgence. 2 Kent, 282. We are, therefore, to examine the act in question in reference to the principles of the common law; for it is not to be presumed, that the legislature intended to make any innovation upon the common law, further than the case absolutely required. 1 Kent (9th edit.), 521. In the construction of the act, it is never to be forgotten that bastards are liable to all the disabilities to which the common law subjects them, as such, except those from which the statute itself exempts them. Stevenson’s Heirs v. Sullivant, 5 Wheaton R. 250; Scroggin v. Allen, 2 Dana Kentucky R.. 363-4. By the common law bastards are wholly without inheritable blood, and for this reason they cannot take by descent.

Nor can they transmit by descent, except to their own legitimate offspring; for they can have no other heirs. 4 Kent, 9th edit. 461-3; 2 Kent, 230-232.

Our Statute of 1846 relates only to one class, illegitimates. These petitioners are legitimate. They do not, therefore, take, unless by representation. If the act conferred any right of which the father, Josiah Horton, died seised or possessed, not devised or bequeathed, the general Statute of Descents and Distributions cast the inheritance upon his children, and not otherwise.

The children of Josiah Horton can acquire nothing more than their father was seised or possessed of at his death. They can claim nothing by the Act of 1846 as descendants, jure representa-tionis. Nor can they claim any right (under the Statutes of Descents and Distributions), of which their father was not seised or possessed at his death. As a dead man can acquire no right, his heirs cannot, by representation, acquire more than he was entitled to at his death.

It is only by virtue of the Statutes of Descents and Distributions that the descendants of legitimate children acquire the right of representation, as the heirs at law of their parents. The Act of 1846 gives no right of representation to descendants, as does tbe act of Maryland.

By the common law, it is the seisin which makes the stirps’. “Non jus sed seisina facit stipitem.” If, therefore, the heir on whom the inheritance had been cast by descent, die before he acquires the requisite seisin, his ancestor, and not himself, becomes the person last seised, to whom the complainants must make themselves heirs. 4 Kent, 9 th edit. 428, and 454, note.

The act was passed on the 23d February, 1846. On its face it applies to the future. u Hereafter, all illegitimate children shall inherit the property of their mothers ; and from each other as children of the half-blood, according to the Statutes of Descents and Distributions now in force in this State.” It is clear, therefore,

1st. That Josiah Horton, from whom these petitioners must claim, if at all, died before the passage of the act, and long before the death of Cecilia Reagan, his half sister, and could not therefore have any right or seisin in himself.

2d. The claimants are legitimate children, and not therefore embraced in the provisions of the act.

3d. By the terms of the act, they cannot inherit from the decedent, because she is not their mother or sister.

4th. They are to inherit the property of their mother, and. from each other. How ? not generally, but “ as children of the half-blood” would inherit “according to the Statutes of Descents and Distributions now in force in this State.” That is, they shall not inherit absolutely, and at all events, from their mother, if she have legitimate children living at her death; but they shall then be excluded as children of the half-blood, while the legitiviate children shall he regarded as children of full inheritable whole blood. They shall not inherit absolutely from each other, to the' exclusion of legitimate children of their illegitimate brother or sister, but they shall be regarded as to such legitimate children of their illegitimate brother or sister, as if they were children of the half-blood, and therefore postponed as to them, according to the Statutes of Descents and Distributions now in force.

In both cases, whether inheriting from their mother or from each other, they are to be regarded for the purposes of distribution, as children of the half-blood, who are to be postponed to legitimate children of the whole blood. It was designed by this standard of inheritance, making them children of the half-blood, both to their mother and to each other, to preserve in legal contemplation a distinction between the fruits of legitimate and illicit intercourse; and thus to vindicate and encourage the one, and discourage and prevent the other.

In any view, therefore, of this act, it does not entitle these petitioners to claim the property of Mrs. Reagan as her heirs at law, or to institute the proceedings here invoked. They are not “ interested” in the estate of Cecilia Reagan, or in the re-probate of her will, and have therefore no right to stir up this litigation.

As the determination of this question must finally dispose of this case, it is unnecessary to consider the questions raised as to the validity of the will.

Let the judgment and decree below be reversed, and petition dismissed.

Smith, C. J., dissented.

A petition for a reargument was filed, but a reargument was refused.