Sanford v. Marsh

62 N.E. 268, 180 Mass. 210, 1902 Mass. LEXIS 1047

• Court: Massachusetts Supreme Judicial Court
• Decided: January 1, 1902
• Status: Published

Opinion

Knowlton, J.

The Pub. Sts. c. 125, § 4, as amended by the St. 1882,c. 132, reads as follows: “If an illegitimate child dies intestate and without issue who may lawfully inherit his estate, such estate shall descend to his mother, or in case she is not living, to the persons who would have been entitled thereto by inheritance through his mother if he had been a legitimate child.” The case before us is not within the language of the statute, for we are not dealing with the estate of an illegitimate child, but with the estate of the daughter of an illegitimate child who had deceased before the daughter. The question is whether the statute shall be construed strictly, or whether we discover in it a purpose to place all persons claiming through an illegitimate relation in the same position as if there were no illegitimacy, in reference to the distribution of property of persons dying intestate who • are descended from an illegitimate ancestor.

By the common law a bastard is nullius filius. He can be the heir of no one, nor have heirs, except of his own body. He has no ancestors from whom any inheritable blood can be derived. The common law on this subject is in force in Massachusetts, except as it has been changed by statutes. The statutes which have been adopted here have all been construed strictly. Cooley v. Dewey, 4 Pick. 93. Kent v. Barker, 2 Gray, 535. Pratt v. Atwood, 108 Mass. 40. Hayden v. Barrett, 172 Mass. 472, 474. Under the decisions in Pratt v. Atwood, ubi supra, and in Haraden v. Larrabee, 113 Mass. 430, the intestate in this case could not have inherited from the appellants if she had survived them. The amendment in the St. 1882, c. 132, does not change the law in this respect. Unless we are to give to this amendment a meaning beyond that which the words express, we cannot make it applicable to the distribution of the estate of a person who is not an illegitimate child, but one of the descendants of an illegitimate child. See Curtis v. Hewins, 11 Met. 294. We see no good reason for departing from the rule that statutes of this kind are to be construed- strictly.

Beeree affirmed.