McDaniel v. McDaniel

123 Miss. 401

Opinion

Holden, J.,

delivered the opinion of the court.

This suit is a proceeding in chancery to determine the rightful heirs of one Sam McDaniel, who died intestate, leaving no wife or children, or descendants of children, surviving him. His sole surviving heirs at law were his brother, J. R. McDaniel, the appellee, and the children of two of his deceased sisters of the whole blood, viz., Betsy McDaniel and Hagar McDaniel. Betsy McDaniel left as her sole heirs her children, William McDaniel, Sarah ■Mapire, Mary Thames, and Tamar Boyd, appellants here, and the children of a deceased illegitimate child. These children of Betsy McDaniel are all illegitimates. Hagar McDaniel "left several legitimate children as her sole heirs,

Upon final hearing of the cause the chancellor declared that the appellee, J. R. McDaniel, and the children of the deceased Hagar McDaniel, are the sole heirs of the deceased, Sam McDaniel, and that the estate of the deceased should be divided equally between them — that is, J. R. McDaniel to take one-half and the children of Hagar McDaniel to take the other half; thus excluding all of the heirs of Betsy McDaniel from sharing, because they are illegitimates and cannot inherit from their uncle, Sam McDaniel, since there were legitimate heirs of the same degree to Avhom the estate should descend. From this decree the children of Betsy McDaniel, deceased, prosecute this appeal, and appellee, J. R. McDaniel, cross-appeals.

The exact questions presented are whether or not the appellants, as illegitimate children of Betsy McDaniel, deceased, can inherit that part of the estate of their uncle, Sam McDaniel, which their mother, Betsy the sister of Sam., would have inherited, if she had survived her brother, Sam McDaniel, and whether the children of the dedleased child of Betsy take the share of their deceased parents. The question presented involves the construction of section 1655, Code of 1906 (Hemingway’s Code, section 1387), the material part of which is as follows:

“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. 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.”

There seems to be very little difficulty in reaching á correct interpretation and application of the statute. It plainly provides that illegitimates shall inherit from their mother, and also from her kindred. The deceased, Sam McDaniel, having left no surviving heirs, except his brother, J. It. McDaniel, the appellee, and the children of his two deceased sisters, Hagar and Betsy, certainly one-third of the estate descended to Betsy, or t;o her children after her death. The fact that the children of Betsy were illegitimates did not prevent them from taking their mother’s share in the estate, regardless of the fact that there were legitimate heirs in the same degree.

It seems that the chancellor was led into error by a misconstruction of the language in the latter .part of the statute, which provides that the children of illegitimated shall not inherit, if there be legitimate heirs in the same degree to whom the estate would otherwise descend. The appellants are the children and grandchildren of Betsy McDaniel, who was a legitimate; but her children the appellants, are illegitimates, and the statute plainly provides that they shall inherit from their mother and from her kindred. The intestate, Sam McDaniel, was a brother of Betsy and an uncle of the illegitimate children, the appellants, and the estate here involved should be divided on the basis of one-third to the appellee, J. R. McDaniel, one-third to the children of Hiagar McDaniel, and the other one-third to the children and grandchildren of Betsy McDaniel, the appellants.

The children of the illegitimate deceased child of Betsy take the share of their deceased parent, because there is no legitimate heir to whom the share would otherwise descend. It would not go to the legitimates J. R. McDaniel and the children of Hagar, but would descend to the illegitimates of Betsy, if taken from these children of the illegitimate child of Betsy; therefore there are no “legitimate heirs to whom the estate would otherwise descend,” and it must go to the children of the deceased illegitimate.

The appellee makes the contention that since the testimony taken in the lower court was not transcribed and presented here, we should not disturb the finding of fact by the chancellor. It is true that the testimony taken in the lower court is not before us, but the pleadings in the case, as well as the decree of the chancellor,, are sufficient to present the question of law involved, and to reveal the error of the lower court in the application .of the law to the facts as shown upon the fact of the record.

The decree of the lower court is reversed on direct appeal, and judgment will be entered here for the appellants, and is affirmed on cross-appeal.

Reversed.