Opdyke's Appeal , 1865 Pa. LEXIS 111 ( 1865 )

The opinion of the court was delivered, by

Agnew, J.

Our duty is to interpret fairly the Act of 27th April 1855, conferring the capacity to inherit upon illegitimate children and not to alter, amend, or repeal it. If the tendency of the act be to libertinism and a discouragement of marriage, it is a reason for its repeal, but we cannot interpolate terms unsupported by its language or its spirit. Before the Act of 1855, the difference between legitimate and illegitimate children, as to descendable property, was simply the capacity to inherit. The former were able and the latter unable to inherit. That act declared that illegitimate children should take and be known by the name of their mother, and they and their mother shall respectively have capacity to talce or inherit from each other personal estate as next of kin, and real estate as heirs in fee simple. The condition of the bastard is thus changed. Before, he was filius nullius, now he is next of kin and heir; before, he had no capacity or ability, now he has capacity to take or inherit. He is the son of his mother and she is his mother, so that now each may take or inherit from the other. The legislature has chosen to convey its meaning in these expressions which strike at the root of his disability by declaring his capacity. It has said that as between him and his mother he shall inherit her property, without proviso or qualification, as her heir. But how do heirs inherit? Certainly in the manner the law provides: — if one heir, solely; if more than one, together. How then can we say, when other heirs are also left, he shall not inherit, he shall not be an heir ? It is said another is born in lawful wedlock and therefore he shall not inherit. But in respect to inheritance from the same mother, one is as lawful as the other. As to her property neither is now illegitimate. Birth in lawful wedlock is no longer the criterion, but blood relationship. The bastard and the lawful child have now a like capacity. It would be clearly legislation on our part to say that when lawful children are born as well as bastards, the latter shall not have capacity to take from the common mother, when the law has said they shall.

We have been referred to a number of cases in-other states in which the courts have held in. respect to their own statutes the same doctrine we now declare. It is said that the appellant has not shown the statutes themselves, and therefore they furnish no guide to us. It is true, we do not know the terms of the several acts construed by them, but it is scarcely possible they can be more explicit and unambiguous than the Act of 1855, which, by conferring the capacity to inherit, removes the incapacity, and by a single stroke avoids all ambiguity: Alexander v. Alexander, 31 Ala. 241; Huntwell v. Jackson, 7 Texas 576; Heath v. White, 6 Conn. 218; Earl v. Dowes, 3 Mad. Ch. 330; Brewer v. Bloughton, 14 Peters 178.

The argument that this interpretation is contrary to policy is not supported by the facts. This cannot be asserted against the terms of the law itself, which expressly changes the condition of bastards in relation to descent, while there are innumerable acts legitimating particular individuals. Indeed it may be questioned whether a single application to legitimate, at the instance of either of the parents, has ever been refused. The tendency of the law to immorality may also be well doubted. The fiery torrent of passion seldom stops to consider consequences. In its purpose the law looks only to the misfortune of the innocent offspring, who are compelled to bear in their persons the punishment due to a fault in which they did not share. While the law leaves them to the frown of society and the bitterness of shame, it is unwilling to add beggary to their misery by refusing them a share in the property of that one parent who is often more, sinned against than sinning, and whose mother’s heart yearns towards the child of her misfortune.

The argument that we should introduce into the statute the qualification that there shall be no inheritable capacity when lawful children also exist, because there is no express repeal of the 17th section of the Act of 8th April 1833, is not well founded. It provides that the distribution of real and personal estate shall be among those born in lawful -wedlock. But when the Act of 1855 declared that those born out of lawful wedlock should inherit from their mother, and their mother from them, it declared that which to this extent is directly repugnant to the former law, and to the same extent therefore that law is repealed.

The objection founded upon the proviso constituting the 9th section of the Act of 8th April 1833, that the appellant is not of the blood of the husband of her mother from whom the estate came, is not tenable. Mrs. Sharps took the property by devise from her husband, and therefore became herself the stock of a new descent. She is not a relative of her husband, and taking by devise is a purchase, and not a taking by descent. This is decided in Culbertson v. Daily, 7 W. & S. 194. See also Simpson v. Kelso, 8 Watts 247; Burr v. Sim, 1 Whart. 252.

The decree of the Orphans’ Court is therefore reversed, and it is now ordered and decreed that the sum of $464.64 be distributed in equal shares to and among Lucinda Dunn, Mary Opdyke, and Ellen Sharps, that is to say, to each the one-third thereof, and that the costs of this appeal be paid by Lucinda Dunn.