Smith v. Kelly's Heirs

23 Miss. 167

• Court: Mississippi Supreme Court
• Decided: January 15, 1851
• Status: Published

Opinion

Mr. Justice Clayton

delivered the opinion of the court.

The wife of the petitioner was the daughter of James Kelly, born in South Carolina before his marriage with her mother. They afterwards intermarried in that State, and subsequently moved to Mississippi. The question is, whether she is entitled to a distributive share of the estate of her father, consisting both of realty and personalty.

By the laws of South Carolina, it would seem that such subsequent marriage does not legitimate the issue previously born. By the laws of this State, the subsequent marriage of the parties and acknowledgment of the father will legitimate such issue. Hutch. Code, 502. This renders it necessary to consider, by what law the status or condition of the petitioner is to be determined.

On this head, it is a well settled principle, that the status, or condition as to legitimacy, must be determined by reference to the law of the country where such status or condition had its origin. The only difference of opinion among the English judges on the subject, is as to the applicability of this rule to real property situated in England. The majority of the judges hold, that as to lands in England, the laws of that country must govern. But Lord Brougham holds, that the rule is equally applicable to real and personal estate.

[. i.Story, in his Conflict of Laws, page 97, § ¡105, says: “ As to issue born before the marriage, if, by the law of the country where they are born, they would be legitimated by the subsequent marriage of their parents, they will by such subsequent marriage, (perhaps in any country, but at all events in this,) in the same country become legitimate, so that this character of legitimacy will be recognised in every other country. If illegitimate there, the same character will belong to them in every other country.” See also from § 77 to § 93.

This view strikes us as» the most correct. It furnishes an uniform rule, operating every where and as to all things, alike. When the point is' established, that the condition of the party is fixed, as in this case, by the laws of South Carolina, the place, not only of her birth, but of the marriage of her parents, it follows that she is illegitimate. As a consequence of this status of illegitimacy, which adheres to her every where, she cannot inherit either real or personal estate.

The petition was properly dismissed and the decree is affirmed.