In re the Estate of Cady

257 A.D. 129, 12 N.Y.S.2d 750, 1939 N.Y. App. Div. LEXIS 7687

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 1939
• Status: Published

Opinions

Hill, P. J.

Appeal from a decree of the Cortland County Surrogate’s Court which revoked letters of administration earlier issued to an illegitimate son of a deceased sister of the intestate upon the ground that he was not entitled to take or share in the personal property left by intestate and, therefore, was not qualified to act as administrator. (Surr. Ct. Act, § 118.)

It is argued on behalf of appellant that under the new Statute of Distribution (Dec. Est. Law, art. 3, Laws of 1929, chap. 229, and later amendments) he is entitled to share in the estate of a deceased brother of his mother, irrespective of his own illegitimacy. The steps by which his counsel reaches this conclusion follow: (1) That as “ all existing modes, rules and canons of descent are * * * abolished ” (§ 81, supra) by the new statute, all the former common law and statutory disability as to inheritance by illegitimates was terminated. (2) That the inhibition against inheritance by illegitimates, except from the mother, contained in former section 89 of the Decedent Estate Law, because of the final sentence, “ In any other case illegitimate children or relatives shall not inherit,” is omitted in the comparable provision in the new act (§ 83, subd. 13), which reads: “ If a woman die, leaving illegitimate children, or the legitimate descendants of ' deceased illegitimate children and no lawful issue, such children or descendants inherit her real and personal property as if such children were legitimate.” (3) That appellant is entitled to take this estate under subdivision 6 of section 83, as he is the sole descendant of his mother, who was the only sister of intestate. This paragraph provides for per stirpes inheritance by brothers and sisters and their descendants; the estate is to “ be distributed to such descendants in whatever degree, collectively.”

We are unable to agree with the foregoing argument, as the repeal of former “ modes, rules and canons of descent ” (§ 81) did not change the common-law rule that an illegitimate was nobody’s son (nullius films). The common-law rule was not a Statute of Distribution; rather it established that the illegitimate was not to be regarded the child or descendant of any one. (Todd v. Weber, 95 N. Y. 181; Bell v. Terry & Tench Co., 177 App. Div. 123; Matter of Lauer, 76 Misc. 117.) Under appellant’s argument an illegitimate would be more favored in the distribution of the estates of his collateral relatives than in the distribution of the estate of his mother, for he may only inherit from her in the event there is “ no lawful issue” (§ 83, subd. 13), while he would compete, in the event of his mother’s death, with lawful issue in the distribution of the estates of his mother’s brothers and sisters, as he would be included under the general term “ descendant.” So paradoxical a result could not have been intended by the Legislature. It is a general rule of construction that when the words “ child,” “ children ” or “ descendants ” are used in a statute the meaning is legitimate or lawful children or descendants. (Bell v. Terry & Tench Co., supra; Matter of Miller, 110 N. Y. 216.)

None may gainsay the harshness and seeming unfairness of the discrimination against those unfortunate enough to have been bom out of wedlock, but, as the inheritance of property is governed by statute the remedy must be obtained from the Legislature. The appellant adverts to the fact that had he died after the death of his mother and had her deceased brother survived the latter would have inherited from appellant. This is only another example of the unfairness of the statute, but courts have no remedy.

The decree should be affirmed.

McNamee, Crapser and Heffernan, JJ., concur; Bliss, J., dissents, with an opinion.