Town of Burlington vs. Rhoda Fosby, 6 Vt. 83

The opinion of the court was pronounced by Mattocks, J. — The only question presented in this case is, whether “ one illegitimate child can inherit to another illegitimate child of the same mother.” The 77th

section of the probate act declares, that “ Bastards shall also be capable of inheriting and transmitting inheritance on the part of the mother, as if legally begotten of such mother.” What language could be more intelligible ? What can it'mean, unless it be that among mothers and children of this description, property shall be inherited — that is, attainable by succession, and transmissible by inheritance ? This is an innovation upon the common law, and there are many such in our law relating to the descent and distribution of estates. — One in this very section, making the common law give place to the civil, in case the parents of illegitimate children afterwards intermarry. By the 75th

section of the same act, it is enacted, “ That if no father survive the intestate, his or her brothers, sisters and mother, and their legal representatives, shall be entitled to the whole of such intestate’s estate.” This case, on paper, does not find that the mother is dead; but it was so stated at bar, and the briefs and arguments have gone on that ground: Therefore, so we consider it. This fact, however, would not alter the principle of the decision ; but only give Rhoda, the child, the whole in lieu of half of the estate.

Now, when Thomas died, if he was “capable of transmitting inheritance on the part of his mother,” why did not the estate pass to Rhoda, the sister, if the mother was not living, and if living, half to the mother and half to the sister?

Who is a child’s mother, can be rendered certain to a certain intent; and so also that the same woman is the mother of both children• and so are such children always called and known as the children of such a woman : And, with the proviso in the same act, before quoted, could the legislature, in the 75th section, mean to exclude this description of persons, and confine the descent to the legitimate “ brothers, sisters and mothers,” thereby in effect repealing much of the beneficent and remedial provision of the 77th section, made evidently to ameliorate the condition of these unhappy persons, and thereby take the bread from the innocent surviving children, and give it to their unnatural father, the public?

We think not. But it has been argued that this anti-nuptial group cannot be considered as brother, sister and mother, within the meaning of the statute. Why not? If the brother and sister are both related to the same mother, they must be related to each other. There has been no adjudged case cited to show that the ordinary relationship does not exist between this female parent and her offspring. One case is indeed recollected, which, if it were good law at this day, might have some bearing.

It was the Duke of Suffolk’s case, in the reign of Edward VI. to be found in Brooks’ Abridgement, title “ Administrator No. 47,” and that case may be considered as nearly overruled by the infinite ridicule bestowed upon it by Lawrence Stern : “ Charles, Duke of Suffolk, having issue a son by one renter and a daughterly another renter, made his last will, ‘wherein he devised goods to his son, and died. After his death the son died also, but without will, without wife, and without child; his mother, and his sistei by the father’s side, (for he was born of the former renter,) • then living.

The'mother took administration of her son’s goods according to the statute of 21st Henry VIII., which directs administration to be given to the next of kin. The sister,by the father’s side, contested this administration — contending, 1st, that she herself was next of kin, and 2d, that the mother was not of kin at all to the party deceased, and gained her cause on both points.

The temporal lawyers — ■ the church lawyers — juris consulti — the juris prudentis— the advocates — the judges of the consistory and prerogative courts of Canterbury and York, and with the master of the families, were all unanimously of the opinion that the mother was not of kin to the child — mater non numeratur inter con-sanguíneos. If this last point inkhat learned case, was good law, which the vulgar commentator has said is always doubted, yet in the same case it was resolvedthat “a sister was of kin to her brother.” It has been urged that at most Rhoda was a sister of the half-blood to Thomas.

It has been decided in Brown vs. Brown, 1 Chip. R. 362, that the half-blood under our laws inherit equally with the whole-blood, both real and personal property, the same as they do personal property in England, under the statute of distribution, the feudal doctrine which excludes the half-blood from taking lands by descent, never having been adopted here. Besides as bastards are the children of no father, if would seem difficult to show that these are children of different fathers.

It has also been said, that the word “ inheriting,” in the 77th section, can only apply to lands — such being the common law definition. But by the 78th

section of the statute before mentioned, it is enacted that the personal estate of those who die intestate, shall be distributed in the same manner in which real estate descends by said act.— ‘ This removes the objection. Finally, it has been said that the statute could never intend to give such great privileges to these illegal children, as it would encourage libertinism and illicit intercourse 0 between the sexes. As to the policy of the law, it is for those who make, and not for those who administer it, to judge; and when the provisions are not doubtful, there is no discretion in the court.

Whether it be the most wise and humane to punish this sort of children for the impurities of their parents, is not our province to decide. But there is nothing very new or alarming in this statute.

By the laws of Justinian, bastards were allowed conditionally to inherit to their mothers; and in most of the nations of Europe, with the exception of inheriting and transmitting to their illegitimate relations, they are placed on the footing of other subjects; and we refuse them the right to inherit any part of their fathers’ estate, which some of the ancient nations allowed them, and only permit them in all respects to be the children of their own mothers.

The judgment of the court is, that the said Rhoda Fosby is the heir at law of Thomas Jackson, the intestate, and is entitled to the personal estate of which he died possessed.