Rowe v. Cullen

Offutt, J., delivered the opinion of the Court. The first question presented by this appeal is whether an illegitimate child is a “descendant” of his mother within the meaning of Code, art. 93, sec. 311, which provides that, if the surviving spouse of a testator elects to renounce any provision for his benefit made by the will, he shall take one-third of the estate, if the testator leave “descendants” surviving, one-half if the deceased spouse is not survived by “descendants.” Rosalie E. Rowe, a resident of Baltimore County, died on December 4th, 1937, leaving a will executed in due form, which in ordinary course was admitted to probate on December 27th, 1937, in the Orphans’ Court of Baltimore County, and in it she devised certain real property to J. Scofield Rowe, her husband. The ³⁶⁰ husband, apparently on the same day, filed a renunciation of the will, and an election to take in lieu thereof his legal share of his wife’s estate. Mrs. Rowe left surviving a son, who, for the purposes .of this case, may be assumed to be illegitimate.

Upon those facts the husband, the appellant, contends that he is entitled to receive one-half of his wife’s estate, because, he says, the son is not a “descendant” within the meaning of the statute; the executors, the appellees, contend that he is only entitled to receive one-third of the estate, because, they say, the son is a “descendant” within the meaning of that statute. The court decided that issue in favor of the executors, and the husband appealed. The literal and etymological meaning of the word “descendant,” when used to describe the lineage of members of a family, is equivalent to issue, progeny, or offspring (Crabb’s Synonyms; John Deere Plow Co. v. Gooch, 230 Mo. App. 150 , 91 S. W. 2nd 149 ), and includes all who are descended as issue lineally from another.

Wright v. City of Tuscaloosa, 236 Ala. 374 , 182 So. 72, 76 , Herrick’s Estate, 152 Misc. 9 , 273 N. Y. Supp. 803 , 2 Words and Phrases, Third Series, p. 996. In the law of descent and distribution, however, it has been given both a broader and a narrower meaning, according to the nature of the object it is used to describe. When used in a statute of descent and distribution it has been held to mean all to whom the estate descended. 2 Words and Phrases, Fifth Series, p. 351; Oakley v. Davey, 49 Ohio App. 113 , 195 N. E. 406 . On the other hand it has been held not to include the natural or illegitimate child of a deceased mother.

Wilson v. Bass, 70 Ind. App. 116 , 118 N. E. 379, 380 . That variance in interpretation reflects the efforts of courts to construe the word so as to serve some policy prevailing in the jurisdiction where the question arose. When construing statutes of descent and distribution in connection with their application to legitimates, the courts ordinarily gave to such words as “descendants,” “children,” “issue,” and the like, their literal and ac ³⁶¹ eustomed meaning, but when applied to illegitimate children they often gave them a narrower artificial meaning quite different from their actual literal significance, so as to exclude illegitimates from sharing in the estates of their parents. 7 Am.

Jur. “Bastards,” secs. 153, 138 et seq. That purpose was in complete accord with the spirit of the early common law of England, which, following the Germanic rather than the Roman law, dealt with illegitimate children with inhuman and barbaric harshness. Roman Law in the Modern World, Sherman, secs. 492, 493; Encycl. Brittanica, “Bastards;” 7 Am.

Jur. 724 . So it is said: “In early times bastardy was considered so disgraceful ‘that to retain a bastard in a man’s house was a reflection and the stain and reproach of the parents.’ Crime dwelt always upon him so that he could not be admitted to feudal service. He was treated by the common law with great strictness, and was allowed but few privileges. For example, he was denied all rights as an heir, and he was not entitled even to a name, although he might gain one by reputation.

He did not take his mother’s place of settlement, but was settled wherever he chanced to be born. As he was related to nobody, he could have no heirs, except of his own body; and so, if he left no descendants, his property escheated. He was incapable of holy orders, and was disqualified from holding any dignity in the church. In Germany, no farther back than the time of the Reformation, bastards could not give evidence on the rights of citizens, and down to a very recent period certain Saxon local laws enacted that no persons of illegitimate birth should officiate in any judicial office.

Inquiries were made into the birth of a person, at the academies and schools, before he was admitted to the degree of doctor, or of any other high dignity. By the law of Scotland he was disabled, ex defectu natalium, from bequeathing by testament without letters of legitimation from the sovereign.” 7 Am. Jur, 712. But the severity of those early rules has been relaxed nearly everywhere.

Certainly in this country, ordinarily ³⁶² by statute, but in one instance at least by judicial decision (Eaton v. Eaton, 88 Conn. 286 , 91 A. 196 ), the trend of the law has been to give to illegitimate children the status and privileges of legitimate children, except where that policy would affect the permanence and dignity of the institution of marriage, or the traditional rights and privileges of children born in lawful wedlock, 7 Am. Jwr. sec. 151; 10 C. J. S., Bastards, sec. 25, p. 112. One instance of that growing liberality in the attitude of the state towards illegitimate children is found in the many statutes allowing them to inherit from their mothers. At common law a bastard was spoken of as filius nullius or films populi, 10 C. J. S., Bastards, sec. 23, p. 105, and was regarded as without parents or kindred (Ibid; 7 Am.

Jur. 724 ), and that law did not admit that for purposes of inheritance a bastard could have a mother. Ibid. So that, unless granted by a statute, a bastard has no right to inherit from his mother. Ibid.

In conformity with the general trend, this State in 1825 provided that: “The illegitimate child or children of any female, and the issue of any such illegitimate child or' children shall be capable to take real or personal estate from their mother, or from each other, or from the descendants of each other, in like manner as if born in lawful wedlock.” By Code, art. 93, sec. 125, it is provided that, “If the intestate leave a surviving husband or widow, as the case may be, and no child, parent, grandchild, brother or sister, or the child of a brother or sister of the said intestate, the said surviving husband or widow, as the case may be, shall be entitled to the whole.” Code, art. 46, sec. 7, provides that: “The illegitimate child or children of any female, and the issue of any such illegitimate child or children shall be capable in law to take and inherit both real and personal estate from their mother, or from each other,, or from the descendants of each other, as the case may be; and where such illegitimate child or children shall die, leaving no descendants or brothers or sisters, or the descendants of such brothers or sisters, then and in that case, the mother of ³⁶³ such Illegitimate child or children, if living, shall inherit both real and personal estate from such illegitimate child or children; and if the mother be dead, then and in that case, the heirs at law of the mother shall inherit the real and personal estate of such illegitimate child or children in like manner as if such illegimate child or children had been born in lawful wedlock.” Ibid, article 93, section 311, provides that in the event that a surviving spouse renounces any devise or bequest for his or her benefit in a will of a deceased spouse and elects to take in lieu thereof his or her legal share of the estate: “If the election be of the legal share of both real and personal estate, the surviving husband or wife shall take one-third of the lands, as an heir, and one-third of the surplus personal estate (if the deceased spouse shall be survived by descendants) and one-half of the lands, as an heir, and one-half of the surplus personal estate (if the deceased spouse shall not be survived by descendants) and no more.” And as an index of its policy the General Assembly in 1937 provided that: “The word child or its equivalent shall be construed to include any illegitimate child, except in matters of inheritance, descent or distribution of real and personal property, unless such a construction would be unreasonable.” Acts 1937, ch. 74. Code, art. 93, sec. 311, provides that the surviving spouse shall, in the event of an election to take under the statutes of descent and distribution instead of under the will, take only one-third of the land and one-third of the personal estate if the deceased spouse be survived “by descendants.” It does not seem possible to define a right in clearer terms than is done in that statute, unless the word “descendant” is to be given a forced, unnatural, and artificial meaning, in order to defeat the clear and unmistakable purpose and intent of the statute so as to gratify a harsh policy that has been repudiated for more than a century. But appellant contends that while an illegitimate child may be a child, it is not a “descendant” within the meaning of the statute. ³⁶⁴ In Reese v. Starner, 106 Md. 50, 52, 66 A. 443 , it is said: “Whatever then may have been the law of this State prior to the passage of Act 1868, p. 355, ch. 199, codified as article 46, section 30, of the Code of Public General Laws of 1888, and the same section and article of Code 1904, it must be clear that since this act the mother of an illegitimate child, dying without descendants, or brothers or sisters or the descendants of such brothers, or sisters, can inherit both real and personal estate from such illegitimate child.” So in Barron v. Zimmerman, 117 Md. 296 , 83 A. 258, 259 , where the court said: “The decisive question thus presented is not whether the appellant would be so entitled merely by force of the section making him capable of inheriting direct from his mother, or whether the term ‘child’ as ordinarily used in a statute would include an illegitimate, but whether, under a codified system of laws by which such a person is invested with the full qualification of legitimacy with reference to the inheritance of his mother’s estate, he is within the purview of a constitutent provision that the estate which the deceased mother would have inherited shall pass to her ‘child or children.’ In our judgment this question should be answered in the affirmativé. It would certainly seem to be a reasonable construction of statutory