King v. Thissell

109 N.E. 880, 222 Mass. 140, 1915 Mass. LEXIS 918

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1915
• Status: Published

Opinion

Pierce, J.

The petitioner asks that the words “issue of any deceased child” in Rev. Sts. c. 62, § 21, as re-enacted without other than a slight verbal change in Gen. Sts. c. 92, § 25; Pub. Sts. c. 127, § 21; R. L. c. 135, § 19, shall be read to include illegitimate issue as well as legitimate issue.

Such interpretation would involve reconsideration of Kent v. Barker, 2 Gray, 535, wherein the word “children” was adjudged to mean only legitimate children.

In effect the argument is that that decision should be reversed because of change in public policy and in judicial sentiment in relation to the treatment of this kind of sociological problems. See dicta, Buckley v. Frasier, 153 Mass. 525. But the question is no longer open. “When the same Legislature, in a later statute, uses the terms of an earlier one which has received a judicial construction, that construction is to be given to the later statute. And this is manifestly right. For if it were intended to exclude any known construction of a previous statute, the legal presumption is, that its terms would be so changed as to effect that intention.” Commonwealth v. Hartnett, 3 Gray, 450. Shelton v. Sears, 187 Mass. 455, 459. Black on Interpretation of Laws, (2d ed.) § 179. Douglass v. County of Pike, 101 U. S. 677.

With the word “children” in the statute qualified by the word “legitimate,” it cannot be doubted upon the reasoning of Kent v. Barker, supra, that the words “issue of a deceased child” should be construed to mean legitimate issue of any legitimate deceased child, and we so hold.

It becomes unnecessary to consider whether the omission of the petitioner from the will was intentional or was or was not due to accident or mistake. The decree of the single justice affirming the decree of the Probate Court must be affirmed.

So ordered.