Southgate v. Annan

Miller, J., delivered the opinion of the Court. Prudence Biggs, an illegitimate woman, who had, in 1829, acquired real estate by purchase, intermarried with David Morrison in May, 1831, and died intestate in 1853, never having had any children, leaving no brothers or sisters, or descendants of brothers or sisters, or other descendants or kindred, but leaving her husband surviving her. The sole question in the case is, did the real estate of the wife, upon her death, pass to the husband, or es-cheat to the State ? The right of the husband rests upon the last clause of 1st section of the Act of 1820, ch. 191, then in force.

The same provision was in the Act of 1786, eh. 45, and is codified in sec. 23, Art. 47, of the Code. It is in these words: “ And if there be no descendants or kindred of the intestate as aforesaid, to take the estate, then the same shall go to the husband or wife, as the case may be,-and if the husband or wife be dead, then to his or her kindred, in the like course as if such husband or wife had survived the intestate, and then had died entitled to the estate by purchase; and if the intestate has had moré husbands or wives than one, and all shall die before such intestate, then the estate shall be equally divided among the kindred of the several husbands or wives, in equal degree equally.” By the terms of this clause, the husband and wife, and their respective kindred, are designated by law as parties to take, upon the death of persons lawfully married, leaving no descendants or kindred capable of taking, before the ¹¹⁶ right ot the State as ultirnus Imres can arise ; and unless it can be held either upon a fair construction of its words, or upon grounds of public policy, looking to the morals of society that this law does not embrace cases where one of the parties to the marriage is illegitimate, it must be conclusive of the case before us. Upon the language of the Statute, there is no room for doubt. It is comprehensive, and contains no exception of wives or husbands who are bastards, and die intestate, without descendants or kindred.

Nor can we discover any good reason, founded upon public policy, which should lead us to adopt the more restricted construction contended for by the appellant. On the contrary, the policy of the law, as well as the dictates of justice and humanity, forbid any such construction. The common law imposed upon a bastard a total incapacity to take as heir either to the putative father, mother, or any one else. To prevent the evils of illicit intercourse, the guilt of the parents was thus branded upon the unoffending offspring.

By the Act of 1786, ch. 45, sec. 7, the subsequent marriage of the parents and acknowledgment by the father, remitted the penalty and legitimated the child to all intents and purposes, and by the Act of 1825, ch. 156, illegitimate children were endowed with inheritable privileges from the mother and inter sese. "With these modifications, the common law still prevails in this State, but even at common law, the rule of nullius filius applies only to the case of inheritances. Bastards can acquire, hold, devise, and convey estates real and personal. They can marry and are held amenable to the penalties of the law if they marry within the prohibited degrees.

Their children born