Reversing.
Wilgus Richardson died intestate a resident of Estill county on January 6, 1929, leaving an estate of approximately $10,000, which consisted principally of cash on deposit in bank. Gilbert Richardson qualified as administrator of his brother's estate and instituted this action in the Estill circuit court for a settlement of the decedent's estate. The appellee, Glenn Forrest Borders, was made a defendant, and the administrator asked that he be required to answer and assert any claim that he might have against the estate. All interested parties were made either plaintiffs or defendants.
The appellee filed an answer and counterclaim in which he alleged that he was the son and only heir at law of the decedent, Wilgus Richardson. He further alleged that Wilgus Richardson and his mother were married on November 22, 1905, and that he was born in lawful wedlock on June 27, 1906, while this union was still in existence. The administrator filed a reply which was in two paragraphs. The first paragraph was a traverse, and in the second paragraph he alleged that in a prior action between the decedent and the mother of appellee it had been "decided and adjudged upon the allegations of the answer and counterclaim which the said deceased, Wilgus Richardson, filed
in said prior action on the 11th day of December, 1906, and upon the proof submitted to the court in support, thereof, that at the time of the marriage of said Wilgus Richardson and said Ellen Elliott Richardson, on November 22nd, 1905, the said Ellen Elliott Richardson was pregnant by another man without the knowledge of said Wilgus Richardson and that in said final judgment in said prior action this court finally adjudged and decreed to the said Wilgus Richardson an absolute divorce from the bonds of matrimony with the said Ellen Elliott Richardson, on the ground that the said Ellen Elliott Richardson was at the time of their said marriage on November 22nd, 1905, pregnant by another man without said Wilgus Richardson's knowledge. These plaintiffs and defendants say that the said final judgment of this court in said former action has never been appealed from, vacated, modified, or set aside, and is still in full and complete effect as the final judgment of this court. The whole record of the proceedings in the said former action is hereby referred to and made part hereof the same as if fully set out herein and attached hereto. These plaintiffs and defendants say that the said male child which was born to said Ellen Elliott Richardson on or about June 27th, 1906, was the same child of which she was finally adjudged in the said prior action to have been pregnant without the knowledge of said Wilgus Richardson, at the time of this said marriage with said Ellen Elliott Richardson on November 22nd, 1905, and that by reason of said judgment the said male child which was born to Ellen Elliott Richardson on or about June 27th, 1906, was finally adjudged to be, and now is, a bastard for all purposes whatever, and is not entitled to inherit any part of the estate of the deceased, Wilgus Richardson, whether the said male child so born to said Ellen Elliott Richardson is in fact the defendant and cross petitioner, Glenn Forrest Borders, as he alleges in his amended answer, counterclaim and cross petition, or whether the said male child is another person."
A demurrer to the second paragraph of the reply was sustained. Proof was heard, and upon submission of the case the court adjudged that Glenn Forrest Borders was the son and only heir at law of the decedent, Wilgus Richardson, and as such was entitled to the whole of his estate. From that judgment the plaintiffs have appealed.
The question presented by this appeal is whether the lower court erred in sustaining the demurrer to the second paragraph of the plaintiffs' reply wherein they set up the judgment in the divorce case between Wilgus Richardson and appellee's mother as conclusive of appellee's illegitimacy. Wilgus Richardson and Ellen Elliott were married on November 22, 1905, and while this union existed a child was born to the wife on June 27, 1906. Shortly after the birth of the child Wilgus Richardson left his wife, and she brought suit for divorce alleging cruel and inhuman treatment in that he charged that she was at the time of their marriage pregnant by another man. Wilgus Richardson filed an answer and counterclaim. He admitted that he had made the charges set out in the petition, and he alleged affirmatively that the child born on June 27, 1906, was not his child but was the illegitimate child of his wife with which she was pregnant at the time of their marriage. Proof was heard, and on August 8, 1908, judgment was entered granting a divorce to Wilgus Richardson upon his counterclaim and dismissing his wife's petition. It was alleged in the counterclaim that at the time of the marriage of Ellen Richardson to the defendant, Wilgus Richardson, to wit, November 22nd, 1905, Ellen Richardson was pregnant by another man without the defendant's knowledge, and it was on this ground that the divorce was granted.
Shortly after the rendition of this judgment, the child born to Ellen Richardson was placed in the Widows' and Orphans' Home maintained in Louisville by the Christian Church. Later the child was adopted by Mrs. W.E. Borders, and thereafter was known as Glenn Forrest Borders. It is conceded that the appellee is the child born to Ellen Richardson on June 27, 1906.
Section 166 of the Kentucky Statutes provides that:
"Every child shall be deemed a bastard who shall be begotten and born out of lawful wedlock; and in cases where a woman shall have been divorced from her husband on the ground of her being pregnant by another man at the time of her intermarriage, and having concealed her pregnancy from her husband, the child of which she was thus pregnant shall be deemed a bastard for all purposes whatever."
Prior to 1858, section 1 chapter 6 of the Revised Statutes read:
"Every child shall be deemed a bastard * * * who shall be begotten and born out of lawful wedlock."
The General Assembly of 1858 as an amendment to chapter 6 of the Revised Statutes enacted what is now the last clause of section 166 of our present Statutes. Chapter 727, Acts of 1858. It was clearly the intention of the Legislature in enacting this statute to fix the status of the child as that of a bastard when a divorce is granted to the husband of such child's mother on the ground of her being pregnant by another man at the time of her marriage and for concealing this pregnancy from her husband; and the status of the child is fixed for all purposes including that of inheritance.
When the appellee's status was fixed by the judgment in the divorce proceeding and he thereby became incapable of inheriting from Wilgus Richardson, he was not deprived of any legal right then capable of enforcement. The right to take property, either real or personal, by inheritance, is one created by law, and the Legislature, in the absence of constitutional limitations, has absolute power to say who shall inherit. Those named as heirs and distributees in the existing laws of descent and distribution have no vested rights until intestate's death, and, as to them it necessarily follows that the Legislature may at will change the law governing the manner in which property shall descend and be distributed without affecting vested rights. Section 166 of the Statutes in clear and unmistakable language provides that a child, though born in lawful wedlock, is illegitimate when adjudged in a divorce action to have been begotten before the marriage by another than the mother's husband.
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Reversing.
Wilgus Richardson died intestate a resident of Estill county on January 6, 1929, leaving an estate of approximately $10,000, which consisted principally of cash on deposit in bank. Gilbert Richardson qualified as administrator of his brother's estate and instituted this action in the Estill circuit court for a settlement of the decedent's estate. The appellee, Glenn Forrest Borders, was made a defendant, and the administrator asked that he be required to answer and assert any claim that he might have against the estate. All interested parties were made either plaintiffs or defendants.
The appellee filed an answer and counterclaim in which he alleged that he was the son and only heir at law of the decedent, Wilgus Richardson. He further alleged that Wilgus Richardson and his mother were married on November 22, 1905, and that he was born in lawful wedlock on June 27, 1906, while this union was still in existence. The administrator filed a reply which was in two paragraphs. The first paragraph was a traverse, and in the second paragraph he alleged that in a prior action between the decedent and the mother of appellee it had been "decided and adjudged upon the allegations of the answer and counterclaim which the said deceased, Wilgus Richardson, filed
in said prior action on the 11th day of December, 1906, and upon the proof submitted to the court in support, thereof, that at the time of the marriage of said Wilgus Richardson and said Ellen Elliott Richardson, on November 22nd, 1905, the said Ellen Elliott Richardson was pregnant by another man without the knowledge of said Wilgus Richardson and that in said final judgment in said prior action this court finally adjudged and decreed to the said Wilgus Richardson an absolute divorce from the bonds of matrimony with the said Ellen Elliott Richardson, on the ground that the said Ellen Elliott Richardson was at the time of their said marriage on November 22nd, 1905, pregnant by another man without said Wilgus Richardson's knowledge. These plaintiffs and defendants say that the said final judgment of this court in said former action has never been appealed from, vacated, modified, or set aside, and is still in full and complete effect as the final judgment of this court. The whole record of the proceedings in the said former action is hereby referred to and made part hereof the same as if fully set out herein and attached hereto. These plaintiffs and defendants say that the said male child which was born to said Ellen Elliott Richardson on or about June 27th, 1906, was the same child of which she was finally adjudged in the said prior action to have been pregnant without the knowledge of said Wilgus Richardson, at the time of this said marriage with said Ellen Elliott Richardson on November 22nd, 1905, and that by reason of said judgment the said male child which was born to Ellen Elliott Richardson on or about June 27th, 1906, was finally adjudged to be, and now is, a bastard for all purposes whatever, and is not entitled to inherit any part of the estate of the deceased, Wilgus Richardson, whether the said male child so born to said Ellen Elliott Richardson is in fact the defendant and cross petitioner, Glenn Forrest Borders, as he alleges in his amended answer, counterclaim and cross petition, or whether the said male child is another person."
A demurrer to the second paragraph of the reply was sustained. Proof was heard, and upon submission of the case the court adjudged that Glenn Forrest Borders was the son and only heir at law of the decedent, Wilgus Richardson, and as such was entitled to the whole of his estate. From that judgment the plaintiffs have appealed.
The question presented by this appeal is whether the lower court erred in sustaining the demurrer to the second paragraph of the plaintiffs' reply wherein they set up the judgment in the divorce case between Wilgus Richardson and appellee's mother as conclusive of appellee's illegitimacy. Wilgus Richardson and Ellen Elliott were married on November 22, 1905, and while this union existed a child was born to the wife on June 27, 1906. Shortly after the birth of the child Wilgus Richardson left his wife, and she brought suit for divorce alleging cruel and inhuman treatment in that he charged that she was at the time of their marriage pregnant by another man. Wilgus Richardson filed an answer and counterclaim. He admitted that he had made the charges set out in the petition, and he alleged affirmatively that the child born on June 27, 1906, was not his child but was the illegitimate child of his wife with which she was pregnant at the time of their marriage. Proof was heard, and on August 8, 1908, judgment was entered granting a divorce to Wilgus Richardson upon his counterclaim and dismissing his wife's petition. It was alleged in the counterclaim that at the time of the marriage of Ellen Richardson to the defendant, Wilgus Richardson, to wit, November 22nd, 1905, Ellen Richardson was pregnant by another man without the defendant's knowledge, and it was on this ground that the divorce was granted.
Shortly after the rendition of this judgment, the child born to Ellen Richardson was placed in the Widows' and Orphans' Home maintained in Louisville by the Christian Church. Later the child was adopted by Mrs. W.E. Borders, and thereafter was known as Glenn Forrest Borders. It is conceded that the appellee is the child born to Ellen Richardson on June 27, 1906.
Section 166 of the Kentucky Statutes provides that:
"Every child shall be deemed a bastard who shall be begotten and born out of lawful wedlock; and in cases where a woman shall have been divorced from her husband on the ground of her being pregnant by another man at the time of her intermarriage, and having concealed her pregnancy from her husband, the child of which she was thus pregnant shall be deemed a bastard for all purposes whatever."
Prior to 1858, section 1 chapter 6 of the Revised Statutes read:
"Every child shall be deemed a bastard * * * who shall be begotten and born out of lawful wedlock."
The General Assembly of 1858 as an amendment to chapter 6 of the Revised Statutes enacted what is now the last clause of section 166 of our present Statutes. Chapter 727, Acts of 1858. It was clearly the intention of the Legislature in enacting this statute to fix the status of the child as that of a bastard when a divorce is granted to the husband of such child's mother on the ground of her being pregnant by another man at the time of her marriage and for concealing this pregnancy from her husband; and the status of the child is fixed for all purposes including that of inheritance.
When the appellee's status was fixed by the judgment in the divorce proceeding and he thereby became incapable of inheriting from Wilgus Richardson, he was not deprived of any legal right then capable of enforcement. The right to take property, either real or personal, by inheritance, is one created by law, and the Legislature, in the absence of constitutional limitations, has absolute power to say who shall inherit. Those named as heirs and distributees in the existing laws of descent and distribution have no vested rights until intestate's death, and, as to them it necessarily follows that the Legislature may at will change the law governing the manner in which property shall descend and be distributed without affecting vested rights. Section 166 of the Statutes in clear and unmistakable language provides that a child, though born in lawful wedlock, is illegitimate when adjudged in a divorce action to have been begotten before the marriage by another than the mother's husband. The statute makes the judgment in the divorce proceeding conclusive of the question of legitimacy, and precludes the child from thereafter litigating that question. The judgment granting Wilgus Richardson a divorce from appellee's mother established appellee's status and placed him in a class incapable of inheriting from Wilgus Richardson under the laws of descent and distribution. He was deprived of no right concerning the loss of which he could then or can now legally complain. The Legislature deemed it proper to make the decree in the divorce proceeding determinative of the question of
legitimacy and consequently of the right of the child to inherit from the mother's husband. With the wisdom of its action we are not concerned. There, is no ambiguity in the language of the statute, and nothing is left to construction.
The statute does not violate the constitutional guaranties of due process and equal protection of the law, nor does it violate subsections 8 and 29 of section 59 of our Constitution as is suggested. The argument that it violates section 59 is based on the theory that as construed it was intended to be a statute of descent and distribution, but, as heretofore stated, it was intended merely to fix the status of a child under designated circumstances, and it happens that a child occupying such a status cannot inherit from the mother's divorced husband under our statute of decent and distribution. The Legislature no doubt had these statutes in mind when section 166, Ky. St., was enacted, and the prevention of litigation such as this many years after a divorce had been granted on the ground specified in the act, and when the facts then established were no longer susceptible of proof, was probably one of the impelling reasons for its enactment. The facts that would be necessary now to establish appellee's claim, if section 166 were not in the way, would have defeated the divorce action of his mother's husband. His mother had a twofold interest in that litigation: First, to prevent the divorce on the ground asserted in the answer and counterclaim; and, second, to protect her child from the charge of illegitimacy. The interests of the mother and child in that suit were identical, and the mother had motives both of self-interest and affection impelling her to make defense. Whether or not the doctrine of virtual representation applies in a case of this character need not be determined, however, since we have concluded that appellee was deprived of no pecuniary right.
Judgment is reversed with directions to overrule the demurrer to the second paragraph of the reply and for further proceedings consistent herewith.
The whole court sitting.
Willis, Clay, and Perry, JJ. dissenting.