Opinion
No. 35202.
February 8, 1943.
1. STATUTES.
The statute authorizing illegitimates to inherit from their mother and from her other children and from her kindred according to the statutes of descent and distribution, and the statute giving right of the whole blood to inherit to the exclusion of the half blood, in equal degree, are in "pari materia" and should be construed together (Code 1930, secs. 1403, 1408).
The term "whole blood" is defined as the blood or relationship of children who have both their parents in common; and "half blood" is defined as the relationship between children who have but one of their parents in common.
2. BASTARDS.
At common law, an illegitimate child could not inherit from its own mother and could leave no heirs save its own lineal descendants, but now in most jurisdictions illegitimates may inherit from their mother on an equal basis with her legitimate children, and illegitimate brothers and sisters may inherit from each other and from mother's own kindred.
3. BASTARDS.
Where intestate's father and the mothers of three groups of claimants to intestate's estate as heirs at law had same mother and all were illegitimate, but it was shown that intestate's father and mother of one of the groups of claimants had same father, such group of claimants was entitled to take property as first cousins of the "whole blood" to the exclusion of other groups who were first cousins of the "half blood" (Code 1930, secs. 1403, 1408).
4. EQUITY. Pleading. Stipulations.
Where bill for partition expressly prayed for relief to which complainants might be entitled if complainants had prayed for insufficient relief, and parties agreed to division of proceeds as parties' interests might appear, allegations in bill as to parties' rights to equal shares did not preclude one of complainants and a defendant who suffered a decree pro confesso from obtaining greater shares.
5. APPEAL AND ERROR.
Contention could not be urged for first time on appeal that complainant and other defendant mentioned in cross-bill were precluded by pleadings from being awarded more than an equal share of proceeds resulting from sale of intestate's property with all of other parties litigant.
SMITH, C.J., and GRIFFITH, J., dissenting.
APPEAL from chancery court of Hinds county, HON. V.J. STRICKER, Chancellor.
L.F. Easterling and T.S. Bratton, both of Jackson, for appellants.
The court erred in holding the appellees were entitled to the estate of Lillie Brown but preferred to the right of appellants, since all parties were the descendants of illegitimates and first cousins.
Alabama V.R. Co. v. Williams, 78 Miss. 209, 28 So. 853; Illinois Cent. R. Co. v. Johnson, 77 Miss. 727, 28 So. 753; Edwards v. Gaulding, 38 Miss. 118; Andrews v. Simmons, 68 Miss. 732, 10 So. 65; Code of 1930, Secs. 1402, 1408.
The court erred in awarding appellees the proceeds of sale of the land of Lillie Brown, deceased, because Ella Jackson, one of the appellees here, was a complainant in the suit for partition, and swore to the bill and is bound by the allegations thereof; and because Ann Courtney, one of the appellees, was made defendant to said bill; and said bill on motion was taken as confessed against the said Ann Courtney; and said decree pro confesso was never set aside; but was on adjudication that complainants and defendants were heirs of the deceased, as therein set forth.
McClendon Edwards and E.W. Stennett, all of Jackson, for appellees.
Under the circumstances before the court, it seems apparent that four children of Elza Wright, to-wit: Minerva Henderson, George Wright, Lizzie Rhodes, and Amanda Hicks, were all slave-born and that nothing was done to make them legitimate under the slave act or the constitutional amendment. It must, therefore, be conceded, for the purposes of this discussion at least, that these four children were illegitimate. It is without dispute in the evidence, however, that Minerva Henderson and George Wright were children of the same mother and of the same father and were, as a matter of genealogy, full brother and sister and except for the disability of slaves they would have been perfectly legitimate, while Lizzie Rhodes and Amanda were born to Elza Wright after she came to Mississippi and that their father was a person or persons unknown, it not ever being clear that they had the same father.
From the evidence, then, the decedent, Lillie Brown, and the appellees, John Henderson, Ella Jackson, and Ann Courtney, were first cousins of the whole-blood and were themselves entirely legitimate. The children of Amanda Hicks and of Lizzie Rhodes, as a matter of genealogy, are without dispute cousins of the half-blood of the decedent, Lillie Brown, and of the appellees here.
All of this factual information was before the court and without dispute, and based upon it the court held that the first cousins of the whole-blood are entitled to take to the exclusion of the cousins of the half-blood. Was the court in error is so holding? We think not.
Code of 1930, Sec. 1402.
Whole-bloods inherit to the exclusion of half-bloods in the same degree.
Fatheree v. Fatheree, Walk. 311; Hulme v. Montgomery et al., 31 Miss. 105; Scott v. Terry, 37 Miss. 65; Code of 1930, Sec. 1403.
All illegitimates shall inherit from their mother, and from her other children, and from her kindred, according to the statute of descent and distribution; and the children of illegitimates and their descendants shall inherit from the brothers and sisters of their father or mother, whether legitimate or illegitimate, and from their grandparents. But the children of illegitimates shall not inherit from any ancestor or collateral kindred if there be legitimate heirs of such ancestor or collateral kindred, in the same degree, to whom the estate would otherwise descend.
Code of 1930, Sec. 1408.
The court is, of course, entirely familiar with the proposition that an intestate is presumed to have left heirs capable of inheriting his estate. State ex rel. Nall v. Williams, 99 Miss. 293, 54 So. 951, and other cases. It is also familiar law that our legislature has throughout our history been extremely indulgent toward illegitimates. As stated by counsel for the appellants, under the harsh rule of the common law, illegitimates were, as stated in one case, monsters, the children of no one, and had no stock through which consanguinity could be traced. But the legislature, in a series of acts, made provisions for these unfortunates, the first being under Article 3 of the Act of Wills, Hutcherson's Code of 1821, which made such a one legitimate upon subsequent marriage of its father and mother and upon acknowledgement of the father of his parenthood. A subsequent act gave the illegitimate a mother whether married or not. By a series of steps he has now reached the point where he may inherit almost as other men except directly from his father. This indulgence toward illegitimates was discussed by the court in Shelton v. Minnis, 107 Miss. 133, 65 So. 114, where the court held that the by-laws of insurance associations could not discriminate between the legitimate and illegitimate children possessing equal rights to inherit from and through their mother.
The learned chancellor, in commenting upon this case in his oral opinion, made the statement that kinship is a matter of blood and nothing else, and we respectfully submit that that statement is sound. The appellees here were entitled under the statute to inherit from their mother and from her collateral kindred and especially from the descendants of her grandmother, the common ancestor. The appellees would have an equal right to inherit except for the provisions of Section 1403 of the Code, which says in effect that the only difference between half-bloods and whole-bloods in the same degree shall be that the whole-bloods take to the exclusion of the half-bloods.
While there is not a case directly in point on this issue, we respectfully submit that the general law indicates very pointedly that where an illegitimate has a statutory right to inherit, on that statutory basis there can be no discrimination drawn between him and a legitimate in the same degree.
Shelton v. Minnis, supra; Davidson v. Brownlee, 114 Miss. 398, 75 So. 140; Malone v. Pope et al., 189 Miss. 46, 196 So. 319.
Counsel for the appellants stands only upon the proposition that there can be no such thing as whole-blood and half-blood relation between illegitimates and says in his brief, with evident relish, that there can be but one classification, "bastards all," citing Andrews v. Simmons, 68 Miss. 732, 10 So. 65, in support of this idea. The court, however, well remembers, or can tell at a glance at the two-page opinion, that such is not the holding of Andrews v. Simmons, same being merely an announcement of the well recognized fact that slave-born children are illegitimate unless their parents complied with the validating act of 1865 or with Article 12 of the Constitution of 1869 by cohabiting together after their emancipation. Nothing whatever is said by way of intimation that appellants' theory is sound or that the decision of the court below is in error.
Both logic and reason require the conclusion that the chancellor reached in his decision, that is, that kinship is, after all, a matter of blood and that there may be whole-bloods and half-bloods among illegitimates just as there may be among other persons. Appellants, however, contend that appellee, Ella Jackson, as a complainant, is bound by the allegations of her bill of complaint as to what her interest in the property of the deceased is and that the appellee, Ann Courtney, as a defendant, is bound by such allegations as to her interests by a decree pro confesso and that they thereafter had no standing on the trial of the case below to claim a greater proportion than that claimed for them in said bill of complaint. With deference to learned counsel for the appellants, we cannot conceive that this is the law. Counsel cites no authority in support of this idea but simply argues that "it would appear" that these appellants are bound on the face of the record by the pleadings. These matters were not raised at the hearing before the chancellor, it having been agreed by all parties, as evidenced by the decree for partition that the issue of kinship was to be wide open on the final hearing. Ella Jackson could have amended her bill of complaint after determining what her true rights were.
This court has announced many times that it must review a case on the theory on which it was presented below in fairness to everyone, including the trial court, which, of course, should not be reversed because of anything which was not raised before it.
Mississippi Power Co. v. May, 173 Miss. 580, 161 So. 755; Williams v. Lumpkin, 169 Miss. 146, 152 So. 842; Anderson v. Maxwell, 94 Miss. 138, 48 So. 227.
The fact that a complainant alleges himself to be entitled to a less interest in the lands than he is rightly entitled to under the facts is no bar to a decree vesting him with his proper share and the court may grant any relief proper on the facts, even if it be other than, or in addition to, the relief prayed for, where there is a general prayer for relief. The bill here contained a general prayer for relief and certainly under every rule of law, a chancery court may do complete justice under a general prayer for relief in this type of case where a complainant was simply mistaken in her allegation of interest and by the same token where a defendant suffers the bill to be confessed under a mistaken idea as to her interest. This is particularly true where all the parties submit to hearing on a wide-open issue of kinship.
47 C.J. 430, par. 405.
This is a contest among collateral kindred in a partition suit for the sale and division of the proceeds resulting from such sale of a certain house and lot in the City of Jackson which belonged to one Lillie Brown, who died intestate and without leaving any heirs at law surviving her other than the collateral kindred who are the parties to this suit, three of whom, John Henderson, Ann Courtney and Ella Jackson are first cousins of the whole-blood and the remainder of them first cousins of the half-blood, unless it be true that although Minerva Henderson, an illegitimate, the mother of the said John Henderson, Ann Courtney and Ella Jackson, was shown to have had the same father and mother as did George Wright, who pre-deceased his daughter, the said Lillie Brown, her said children are nevertheless the same kin to the said Lillie Brown as are the children of one Lizzie Rhodes and Amanda Hicks respectively, it being shown that the said Lizzie Rhodes and Amanda Hicks were also illegitimate and had the same mother as did Minerva Henderson and George Wright but not the same father.
In other words, Elza Wright was the mother of George Wright, Minerva Henderson, Lizzie Rhodes and Amanda Hicks, all four of whom were illegitimate, but George Wright, father of the intestate Lillie Brown who owned the property in question, and Minerva Henderson had the same father, one Wesley Wright, whereas Lizzie Rhodes and Amanda Hicks, children of the said Elza Wright, as aforesaid, had a father whose name is unknown, but the proof discloses that Wesley Wright, the father of the said George Wright and Minerva Henderson, was not their father. It appears that Elza Wright and Wesley Wright lived together as slaves in the State of Virginia; that Elza later moved to Mississippi, bringing with her two children, George Wright and Minerva Henderson (nee Minerva Wright); that Wesley Wright, the father of these two children, remained in Virginia, whether voluntarily or involuntarily is neither shown nor material; and it further appears that Lizzie Rhodes and Amanda Hicks (whose maiden names are not disclosed, but who did not bear the name of Wright) were born to Elza Wright after she moved to Mississippi. It does not appear that Elza Wright and Wesley Wright ever lived together after the slaves were emancipated, and it is conceded for the purpose of this decision that all of the four children of Elza Wright were illegitimates, whereas all of the parties to this litigation are admitted to be legitimate.
The result of the foregoing facts would mean that if George Wright, Minerva Henderson, Lizzie Rhodes and Amanda Hicks had all been legitimate, that is to say, born in wedlock to the said Elza Wright, the children of the said Minerva Henderson would unquestionably be entitled to inherit the property in question from the daughter of her full brother, George Wright, to the exclusion of the children of Lizzie Rhodes and Amanda Hicks, on the ground that the said Lizzie Rhodes and Amanda Hicks would have been half-sisters of George Wright, whereas Minerva Henderson would be his whole sister.
The court below awarded the proceeds of the sale of the property in partition to the three children of the said Minerva Henderson to the exclusion of the children of Lizzie Rhodes and Amanda Hicks, as being three full blood first cousins of Lillie Brown, while the children of Lizzie Rhodes and Amanda Hicks were held to be only half first cousins of the said Lillie Brown; that is to say, the court below applied Section 1408, Code of 1930, in the same manner that he would have been required to decree the distribution of such proceeds had the parties to the partition proceeding all been children of legitimates, with George Wright and Minerva Henderson having a common father and mother and the said Lizzie Rhodes and Amanda Hicks having the same mother but a different father to that of the said George Wright and Minerva Henderson; which, statute provides that: "All illegitimates shall inherit from their mother, and from her other children, and from her kindred, according to the statutes of descent and distribution; and the children of illegitimates and their descendants shall inherit from the brothers and sisters of their father or mother, whether legitimate or illegitimate, and from their grandparents."
It will be noted that the statute says that "all illegitimates shall inherit from their mother, and from her other children, and from her kindred, according to the statutes of descent and distribution" (italics ours), and that when we look to what the Statutes of Descent and Distribution provide, we find that Section 1403, Code of 1930, reads as follows: "There shall not be, in any case, a distinction between the kindred of the whole and half-blood, except that the kindred of the whole-blood, in equal degree, shall be preferred to the kindred of the half-blood in the same degree." This statute giving the right of the whole blood to inherit to the exclusion of the half-blood, in equal degree, has appeared in the Code at least since the Code of 1880 (sec. 1271), and being found in the code chapter on Descent and Distribution along with Section 1408, the question is whether or not the two statutes, being in pari materia, should not be construed together; and whether or not since Section 1403, giving whole-bloods the right to inherit to the exclusion of the half-blood, in equal degree, was not amended so as to except illegitimates and their children from the operation thereof when the latter statute, Section 1408, was enacted to enlarge the right of illegitimates to inherit property in this state, the children of an illegitimate are entitled to the benefit of said Section 1403 and to inherit through their mother by representation the property of a legitimate child of her whole-blood brother, an illegitimate, to the exclusion of the children of such brother's illegitimate half sisters.
The court below was of the opinion that kinship is a matter of blood, and in support of the correctness of such decree it should be observed that since Minerva Henderson had in her veins the blood of both the father and mother of George Wright, who was as aforesaid the father of the intestate Lillie Brown, whereas, Lizzie Rhodes and Amanda Hicks had in their veins the blood of the mother of the said George Wright, but not that of his father, it should follow that the children of Minerva Henderson were by blood closer related to the intestate owner of the property than were the children of the half-sisters of the said George Wright.
In Hutch. Code, p. 501, Act of Feb. 23, 1846, the statute governing the right of illegitimates to inherit property in this state read as follows: "Hereafter, all illegitimates shall inherit the property of their mothers, and from each other, as children of the half-blood, according to the Statutes of Descent and Distribution now in force in this state." Later, the words "as children of the half-blood" were eliminated from the statute, and they have not appeared in any of our codes subsequent to the enactment of the general statute, many years ago, and now appearing as Section 1403, Code of 1930, giving those of the whole-blood the right to inherit to the exclusion of those of the half-blood. While this fact is not decisive, it is in the opinion of the writer persuasive in support of the view that the legislature in enacting this general statute intended that it should apply to illegitimates as well as to legitimates when determining blood relationship for the purpose of inheritance; that is to say, that instead of regarding all illegitimates as being on the same footing as half-bloods, the elimination of the words "as children of the half-blood" from the statute was for the purpose of enabling the rights of illegitimates inter sese to be determined on the same basis as if they were legitimate and some of them were related to the intestate as of the whole-blood and some of the half-blood.
It is true that if Elza Wright, as mother of the four illegitimates, had owned the property in question at the time of her death, through inheritance, or by deed or will, then her other three illegitimate children or their descendants would take the same by inheritance from her on an equal basis. But, in the instant case, under and by virtue of Section 1408, Code of 1930, the successful claimants in the court below trace their claim of title laterally from the intestate Lillie Brown to themselves by reason of their blood relationship to her, and not through a common ancestor. The parentage of their mother and George Wright is to be taken into account only for the purpose of determining such blood relationship. When that is done, we find that the term whole-blood as defined in Ballentine's Law Dictionary is "The blood or relationship of children who have both their parents in common;" and half-blood as therein defined is "The relationship between children who have but one of their parents in common."
It is to be conceded that the precise question involved in this case has not been heretofore decided in this state, and no case has been called to our attention from any other jurisdiction which has determined the particular point here involved, nor have we been able to find the question discussed by the text-writers or in any of the court decisions in the research that we have been able to make in that regard. While no pronouncement of the law has been found which has a direct or controlling effect on the question, still many of the cases do serve to illustrate the fact that the progress of civilization has tended to ameliorate the condition of illegitimates, and the rigor of the common law doctrine which created the legal fiction that an illegitimate has no father, mother or other kindred, has been largely abrogated by statute. At common law an illegitimate child could not inherit from its own mother and could leave no heirs save its own lineal descendants, but now in most jurisdictions they may inherit from their mother on an equal basis with her legitimate children, and illegitimate brothers and sisters may inherit from each other, and from the mother's other kindred. The theory that an illegitimate has no inheritable blood, and is without kin and without ancestry, is a relic of the past, and has never been more than a legal fiction invented to sustain the wholesome doctrine that it is odious to rear children out of wedlock. Illegitimacy, however, has always been the sin of the parent, not the child, yet the common law continued for centuries to frown upon the guiltless child with the disdain of a Pharisee, adhering to the fiction that it had no parent. But, in this enlightened age when statutes are in force enlarging the right of illegitimates to inherit, it is only in keeping with the spirit of these just and humane laws that children of illegitimates should inherit from the brothers and sisters of their mother on the same basis as they would if their mother and her brothers and sisters were legitimate, allowing due regard to the statutes which give kindred of the whole-blood the right to inherit to the exclusion of those of the half-blood, in equal degree.
Such a construction of these statutes can lead to no absurd result. For instance, in the case at bar, the decree of the court below which awarded the proceeds of the sale of the property in question to the children of Minerva Henderson gives to them no more than they would be entitled to receive under the law if their mother, Minerva Henderson, and George Wright, Lizzie Rhodes and Amanda Hicks, had all been legitimate, the first two having the same father and mother, and the latter two having the same mother but a father other than Wesley Wright. On the other hand, if the decree had awarded any of the proceeds of the sale to the children of Lizzie Rhodes and Amanda Hicks, as collateral kindred of George Wright and his intestate daughter, then the children of the said illegitimates, Lizzie Rhodes and Amanda Hicks, would receive an interest in property that they would have had no right to claim if their mothers and George Wright and Minerva Henderson had all been legitimate, without having the same father.
In the case of Davidson v. Brownlee et al., 114 Miss. 398, 75 So. 140, although not decisive of the point here involved, it is found that the court took into consideration the fact that Sections 1649, 1650, 1653, 1655, of the Code of 1906, similar to those now under consideration, contained in the chapter on Descent and Distribution, were in pari materia, and the court construed them together in holding that the illegitimate son of a sister of the whole-blood with intestate took the intestate's property to the exclusion of the legitimate children of the sister of the half-blood with intestate where both sisters pre-deceased the intestate and she died without children or descendants of children.
In the case of Henson et al. v. Johnson et al., 117 Okla. 87, 246 P. 868, there had been an allotment of land to Mary Johnson, an illegitimate daughter of Wash Henson, a Cherokee Indian, and a woman named Rachel, and it was held that Betty Tucker (nee Henson), being a full sister of Mary Johnson, took the entire estate to the exclusion of the children of Wash Henson by three other women, both Betty and the children of the other three women being illegitimates, but all of them except Betty being the half-sisters of Mary Johnson, whereas Betty was her whole sister as aforesaid, she and Mary Johnson having the same mother and father, although born out of wedlock. It is true that under the Act of Congress of May 2, 1890, 26 Stat. 81, 98, the laws of the Cherokee Nation of Indians were given effect pertaining to marriage and divorce, and that the members of this tribe were not governed by the common law. But, the fact remains that Wash Henson was not married to the mothers of any of the claimants, and that his assumed relationship with them in each instance was illegal. While the common law did not govern the rights of the parties in that case, it may likewise be said that the common law does not govern the rights of the litigants in the case at bar, but that their rights are defined and controlled by our statutes of Descent and Distribution hereinbefore discussed.
But, it is argued on behalf of the appellants on this appeal that Ella Jackson, one of the three appellees to whom the court below awarded all of the proceeds of the sale of the property involved, was a complainant in the court below and is bound by the allegations of the bill of complaint to the effect that the children of Minerva Henderson, Lizzie Rhodes and Amanda Hicks were entitled to share in the property of the intestate, share and share alike; that another of the three appellees, Ann Courtney who was awarded a one-third interest in the proceeds of the sale by the decree of the court below suffered a decree pro confesso to be taken against her on the bill of complaint as a defendant thereto, and that she is likewise bound by the allegations of the bill of complaint against her, and is limited to an equal share with all of the other parties to the suit. We do not think that this position is now well taken for the reason that (1) the bill of complaint contained a prayer that if the complainants "have prayed improperly or for insufficient relief, then they pray for such other relief . . . as they may be entitled to in the premises," meaning, of course, under the pleadings and proof made at the hearing; and (2) because it was agreed that a sale of the property might be made for a division of the proceeds among the parties as their interest should appear and that the hearing to determine who were entitled to receive the proceeds of the sale as heirs-at-law of Lillie Brown, deceased, should be postponed until the hearing of the report for confirmation, which was accordingly done, and, so far as the record discloses, no point was made in the court below that the said Ella Jackson and Ann Courtney were precluded by the pleadings from being awarded more than an equal share of the proceeds with all of the other parties litigant. Moreover, if this contention be sustained, John Henderson, who filed a cross-bill and alleged that Ella Jackson, Ann Courtney and he were entitled to all of such proceeds to the exclusion of the other parties to the partition proceeding, would still be entitled to his one-third interest, and the children of Lizzie Rhodes and Amanda Hicks would be awarded an interest in the proceeds of the sale that they were not otherwise entitled to under the allegations of the cross-bill and the proof upon the trial. Had an objection been made in the court below against the proof offered in support of the contention that Ella Jackson and Ann Courtney as well as John Henderson were entitled to a one-third interest each in such proceeds, as being contrary to the allegations of the original bill, the same could have been amended insofar as they were concerned upon proper application. This contention of the appellants made here for the first time cannot therefore be sustained both for the reason that it is not well taken and that it comes too late.
The decree of the court below must be affirmed and the cause remanded for distribution of the proceeds in accordance with the decree of the court below.
Affirmed and remanded.
DISSENTING OPINION.
Section 1403 of the Code has no application here for among illegitimates there are no kindred of the whole blood, all such when kinship among illegitimates is recognized at all being, in the eyes of the law, kindred of the half-blood. They were specifically so designated in the first Mississippi statute which conferred the right to inherit property on illegitimates. This phrase stated a mere truism and was therefore superfluous and manifestly for that reason was eliminated from the later statutes. The phrases kindred "of the whole blood" and "of the half blood" are peculiar to the law of descent and distribution and originated in and their meaning became fixed at common law long before statutes, of which Section 1403 of the Code is a type, were enacted. At common law kindred of the whole blood are they that are "derived, not only from the same ancestor, but from the same couple of ancestors." 2 Blackstone's Commentaries, Star page 228. "The term 'ancestor' means merely the person from whom the estate passes, and not a progenitor, as in popular acceptation." Bailey v. Bailey, 25 Mich. 185, at page 188. Mere animal blood kinship is, of course, determined by the law of nature but blood kinship when resorted to by human beings for determining rights given or regulated by man-made law must be determined by that law, one of the rules of which in the law of descent and distribution of property is that ancestry and all blood kinship must be traced through birth in or of lawful wedlock. At common law the status of an illegitimate child is that of one without kindred. 10 C.J.S., Bastards, sec. 23, p. 105, but that rule has been changed with us as to kinship with one's mother, but for obvious reasons, not as to kinship with one's father. Section 1408, Code of 1930. Such is the meaning of the words "kindred of the whole and half-blood" in Section 1403, for "words which have a clear and definite meaning at common law should be given that meaning when used in a statute, unless it is clear from the statute itself that they were used in a different sense." Whelan v. Johnston, 192 Miss. 673, 6 So.2d 300, 303; Dantzler Lbr. Co. v. State, 97 Miss. 355, 53 So. 1; Daily v. Swope, 47 Miss. 367.
The decree of the court below should be reversed and a decree to which this opinion would lead should be rendered here.
Griffith, J., concurs in this opinion.