McGunnigle v. McKee

Mr. Justice Mercur

delivered the opinion of the court,

The plaintiffs claim to recover the land in question, under the will of James McKee. The defendant claims both as heir and devisee of Thomas- McKee. Great research and ability were shown by the counsel in the preparation and argument of the case.

If the rights of the parties were to be determined by the will of James McKee alone (under which Thomas McKee held), unaffected by subsequent events, the case would not be free from difficulty. By that will, the testator gave to his son Thomas, the land in question, “ to have and to hold to him, his heirs and assigns,” “ provided, that if my son Thomas should die without an heir, then all bequeathments hereinbefore made by me to him shall be equally divided between my son Alexander and his children, to have and to hold to them, their heirs and assigns for ever.”

Looking at the whole will, and considering the fact, that the testator had other children and grandchildren living, who would be heirs of Thomas McKee, we think he used the language “ die ■without an heir,” as meaning, die without a child capable of inheriting from him.

In the view we take of the case, it is not necessary to decide precisely what estate Thomas took under his father’s will. It certainly was not a mere life estate. Whether it was one in fee simple, with an executory devise over, or a fee tail, or a contingent remainder, we reach the same result in either case.

The legislative power to legitimate a bastard child has long been recognised both in England and in this country.

Commencing with the case of the three sons and a daughter of John of Graunt, begotten of Catharine Swynford, a governess of his children, legitimated by Act of Parliament in the 14th century, history records many other acts of legitimation in the two succeeding centuries. The history of our own state has been prolific with special legislation legitimating bastard children. As our Constitution is silent on the subject, the legislative power so to enact is most ample: Sharpless v. The Mayor, 9 Hands 147; Killam v. Killam, 3 Wright 120; Miller’s Appeal, 2 P. F. Smith 113.

The reason why a bastard cannot inherit at common law, is because he is the son of nobody. Being the son of nobody, he has no ancestor. Having no ancestor his blood lacks inheritable quality. In respect, however, toiownUis; children, his blood has the usual descendible quality of pure blood.' If legitimate themselves, their blood has no legal taint to prevent their inheriting from a bastard parent. At common law, one not begotten or born in lawful wedlock, is a bastard. This is so-far modified by the civil law, and by our statute of 14th May 1857, that where the parents of any illegitimate child subsequently marry and cohabit, the child thereby becomes legitimated. The legislative power may remove the legal taint of blood either by general or by special law. For this purpose, the power is most ample: Killam v. Killam, supra.

The most striking case of legislative power to legitimate bastard children is shown in the case of Brewer v. Blougher, 14 Peters 178. The Supreme Court of the United States there held, a general law of the state of Maryland, declaring illegitimate children capable of inheriting from their mother, to extend to those begotten in incestuous connection.

It is true, an estate which has already descended to a legal heir, cannot be divested and given to a bastard Joy a subsequent act of legitimation. This by reason of the constitutional inhibition which prevents the legislature taking the property of one and giving it to another for private purposes. That the taint of a bastard’s blood may be removed, for all purposes of future inheritance, by legislative action, cannot be questioned.

The Act of 27th February 1858, is very clear and comprehensive. It was passed during the life of Thomas McKee. It identifies the defendant by name and by parentage. It expressly declares that she “shall have and enjoy all the rights and privileges of a child born in lawful wedlock, and .shall he able and capable in law to inherit and transmit any estate whatsoever as fully and effectually as if she had been born in lawful wedlock.”

The averment of her parentage in the act is primfi facie evidence of its truthfulness. The other evidence given on the trial clearly confirmed that she was the child of Thomas McKee. There was no proof to gainsay it. There was no room to doubt it. Then by the enactment of that statute, the defendant became for all purposes of inheritance the lawful child and prospective heir of Thomas McKee. She was thereby vested with the same inheritable blood as if born to him on that day in lawful wedlock. It follows then, that from that time until his death, he had a child capable of inheriting from him. That child survived him and is the defendant in this case. The conditional terms of the devise made by James McKee were fulfilled, and the estate became absolute'in Thomas McKee.

It is urged, however, that this is not' the kind of child or heir that James McKee had in his mind at the time he executed his will. That he intended one born in lawful wedlock. We answer, he did not so declare in his will. He used the technical word “heir.” He did not attempt to indicate what facts in his opinion constituted an heir. He made his will under the law, and left it for the law to determine, whether Thomas died without an heir. He must be .presumed to have known the legislative power to declare who should be an heir. He therefore intended to subject the property devised to legislative discretion to enact, within constitutional limits, whether Thomas had issue capable of inheriting. The law of every country regulates the succession of estates on the death of its citizens. In Miller’s Appeal, supra, the testator devised to his daughter during her life the use of a house and lot, directed that it should be sold on her death, and the proceeds be divided between her “lawful issue.” When the will was executed, the daughter had an illegitimate child. After the death of the testator and during the life of the daughter, this child was legitimated by Act of Assembly. On the death of the mother leaving this child and other children lawfully begotten, and on distribution this child wa^ held to be “lawful issue” and entitled to share with the others in the fund.

Reason and authority unite in giving this estate to the defendants ; she was the child of Thomas by nature, and an heir by law. She fulfilled all the requirements of the will. She now holds the land in the double capacity of sole heir and sole devisee.

The learned judge was entirely^correct in his view of the law, therefore judgment affirmed.