Eaton v. Eaton ( 1914 )

I am unable to concur in that part of the opinion which holds that the illegitimate son of the illegitimate daughter of Mrs. Stuart was intended by the testator to be included in the devise under the eighth clause of the will of Reuben Eaton, the father of Mrs. Stuart.

By the will the testator gave the greater part of his estate to trustees, and, after directing them to pay certain portions of the income to his wife and children, directed the trustees to divide the income of the remainder of his estate into four portions and pay to each of his children one-fourth part of the income during the life of each. Two of these children were daughters, of whom Mrs. Stuart was one.

Under the eighth clause, at the death of either of his said daughters, the trustees are directed "to pay to each of the children of such deceased daughter an equal portion of her share, discharged of said trust; the lineal descendants of any deceased child to take the part of such share as their parent would have taken if alive."

Mrs. Stuart died leaving an illegitimate son of her illegitimate daughter and a legitimate daughter.

The sole question on this part of the case is: did the testator intend by the devise to the children of his deceased daughter to include illegitimate as well as legitimate children?

The opinion asserts that, in ordinary speech, by the use of the word "children," we mean illegitimate as well as legitimate children. This seems to me at variance with common usage.

Again, the opinion assumes that our failure to accept the common-law doctrine that a bastard is nulliusfilius led to the corollary that the word "children," in a will, embraces illegitimate as well as legitimate offspring, unless a different intent is to be gathered from the will, read in the light of surrounding circumstances. It assumes, too, that a different interpretation follows from that prevailing in those jurisdictions which by statute have legislated upon this subject. These statutes recognize the illegitimate offspring as the child of his mother and permit him to inherit from and through her. They give, by express enactment, what our court declared to be the law of this jurisdiction. And, of necessity, the same results should follow in each case. From the fact that the law recognizes the illegitimate as the child of his mother and permits him to inherit by and through his mother, to the position that any testator, when he makes a devise to the children of a woman, intends to include her illegitimate as well as her legitimate children, seems to me a rather long jump. This construction does not follow as a corollary from our doctrine any more logically than it follows from the statutes of other jurisdictions which have placed their law upon a parity with ours.

In most of these States where by statute they have changed the common law, the word "children," when used in a will, deed, or contract, means legitimate children, unless the will, as read in the light of the surrounding circumstances, shows a plain contrary intent. This, I believe, to be the almost universally accepted construction. "The natural and legal import of the term children is legitimate children." Heater v.Van Auken, 14 N.J. Eq. 159, 164.

In order to avoid the consequences of this opinion, it will be necessary hereafter for each testator to write the word legitimate, or its equivalent, before each devise to children, heirs, or issue of a woman. I venture the view that the profession of the State have never so defined and used these terms in making such devises. Nor do I believe that the ordinary testator so intends when he makes use of these terms in a devise to a woman.

If Mr. Eaton had devised the life use of the residue of his estate to his children with remainder over to their children or issue, and one daughter and one son died each leaving an illegitimate child, as I understand the opinion, the illegitimate child of the deceased daughter of the testator would take, while the illegitimate child of the son would not. In one case children includes illegitimates; in the other, the same word has a different meaning and excludes the illegitimate from the devise. This inconsistency must result, else it must beheld that in every will the word children embraces illegitimates as well as legitimates, whether applied to a devise to the children, or issue, of a mother or a father.

It would be a strange and prideless grandfather who intended to perpetuate in his will his own daughter's misfortune by intending to include among her children the offspring of her frailty. Men and women as a rule do not expose their family secrets in that fashion. And Reuben Eaton, so far as the record before us shows, did not in my opinion intend otherwise than his fellows would have intended. He did not intend to provide for a line of illegitimates.

By chapter 14 of the Public Acts of 1876 (p. 81) an addition to our statute of distributions was made. This Act was passed immediately following Dickinson'sAppeal, 42 Conn. 491, and in its present form (General Statutes, § 396) reads as follows: "Children born before marriage whose parents afterwards intermarry shall be deemed legitimate and inherit equally with other children." This clearly expressed the legislative intent, and it would seem that the further legitimation of illegitimates should be expressed by legislative enactment rather than by judicial decision.

I am of the opinion that the entire share of the testator's estate held in trust and devised to the children of Mrs. Stuart should be paid to her legitimate child.