Bent's Administrator v. St. Vrain

Scott, Judge,

delivered the opinion of the court.

George Bent was the father of two illegitimate children, Bobert and William Bent, born of Maria Cruz Padilla, the wife of Jesus Maria Gallegos. At the time of the birth of Bobert and William Bent, Gallegos and his wife cohabited together, and had a legitimate daughter named Marcellina Gallegos. The parties resided in Now Mexico. George Bent, being the owner of a piece of land in St. Louis, devised it to his two bastard sons Bobert and William Bent.' The illegitimacy of Bobert and William Bent was admitted. William Bent died after his father, George Bent. After the death of William Bent, his mother, her husband and legitimate daughter conveyed all their interest in his estate to Oeran St. Vrain. Under this state of facts, the court below held that St. Vrain, as the assignee of his mother, was entitled to the whole of William Bent’s interest under the will of his father, and that neither Marcellina Gallegos, the legitimate daughter of his mother, nor his brother Bobert Bent, could inherit any portion of it.

Kent thus states the common law as to the right of a bastard to inherit: “ A bastard, being in the eye of the law nullius filius, has no inheritable blood, and is incapable of inheriting as heir, either to his putative father or his mother, or to any one else; nor can he have heirs but of his own body.” (2 Kent, 212.) In the case of Cooley v. Dewey, 4 *271 Pick. 93 , it was held that at common law the mother of a bastard does not inherit his estate. In the case of Doe v. Bates and wife, 8 Black. 533 , it was said that, according to the common law, if a bastard die intestate and without issue, leaving real estate, the estate escheats.

Now is there any thing in our statute law which will prevent William Bent’s estate from becoming an escheat ? The eighth section of our act concerning descents and distributions provides that “ bastards shall be capable of inheriting and transmitting inheritance on the part of their mother, in like manner as if they had been lawfully begotten of such mother.”

The common law making bastards incapable of inheriting or of transmitting inheritance except to their descendants, they are still liable to all those disabilities, except so far as they are removed by the provision above cited. The section of law conferring on bastards the capacity to inherit on the part of the mother is a copy of the act of Virginia, Kentucky and Ohio in relation to the same subject. The statute of Virginia underwent discussion, and was interpreted by the Supreme Court of the United States in the case of Stephenson’s heirs v. Sullivan, 5 Wheat. 260 . In that case it was held, (Judge Washington, who was familiar with the laws of Virginia, delivering the opinion of the court,) that the meaning of the words “ inheriting and transmitting inheritance on the part of the mother, in like manner as if they had been lawfully begotten of the mother,” was, that bastards should have a capacity to take real property by descent immediately or through their mother in the ascending line, and transmit .the same to their line as descendants, in like manner as if they were legitimate; that this was the uniform meaning of the expression “ on the part of the mother or father” when used in reference to the course of descent of real property in the paternal or materal line.

The case of Little and others v. Lake, 8 Ohio, 290, sanctions the constructions given to the Virginia statute by the Supreme Court of the United States and adopts it, although *272 it was beld that another provision of the statute gave the mother a right to inherit from her bastard child. The court said, “ the words ‘ ex parte materna’ have an established legal meaning importing only lineal descendants, and is opposed to the words ‘ ex linea materna,’ which denote a capacity of both lineal and collateral inheritance. The law does not declare that natural children shall be considered as lawfully born of their mother for all the purposes of inheritance.” The case of Remington v. Lewis, 8 B. Monr. 606, contains both a legislative and judicial exposition of the statute of Kentucky in relation to bastards, which we have said is a transcript of the statute of this state. That case recognizes the construction put upon the "Virginia statute by the Supreme Court of the United States, and maintains that a mother can not inherit from her bastard child.

. It is obvious that under the first section of the act concerning descents and distributions the mother can not inherit from her bastard child. That section only contemplates legitimate relations, and the bastard not being capable of inheriting, or of transmitting an inheritance but to his children, he had no capacity but what is expressly given him by statute.

From the best examination we have been enabled to give this question, we have come to the conclusion that the estate of William Bent has escheated to the state.

Judge Ewing concurring, the judgment is reversed. Judge Napton absent.