Opinion
No. 34138.
May 27, 1940.
1. SLAVES.
Where claimants of intestate's estate alleged that they were the children of intestate's deceased half-brother, the half-brother having been born of a slave marriage or of a relationship assumed by his parents during the period of slavery, burden was on claimants to show that half-brother's parents were living together as husband and wife in 1865 at time of enactment of statute declaring that all free negroes who do now and have heretofore lived together as husband and wife shall be taken as legally married, or in 1869 when similar provision was inserted in the Constitution, in order for the half-brother to have become legitimized by the statute or Constitution (Laws 1865, chap. 4; Const. 1869, art. 12, sec. 22).
2. SLAVES.
Where claimants of intestate's estate alleged that they were the children of half-brother of intestate who had been born of a slave marriage or of a relationship assumed by her parents during the slavery period, burden was on claimants to show that intestate's parents were living together as husband and wife in 1865 when statute was enacted providing that all free negroes who do now and have heretofore lived together as husband and wife shall be taken as legally married, or in 1869 when similar provision was inserted in Constitution in order for the intestate to have become legitimized by the statute or Constitution (Laws 1865, chap. 4; Const. 1869, art. 12, sec. 22).
3. BASTARDS.
Under statute providing that children of illegitimates shall inherit from brothers and sisters of their father or mother, whether legitimate or illegitimate, legitimate children of an illegitimate half-brother of intestate were entitled to inherit from the intestate, regardless of whether intestate was legitimate or illegitimate where the half-brother was living when statute was enacted and intestate had no kindred of the whole-blood (Code 1930, secs. 1403, 1408).
4. DESCENT AND DISTRIBUTION.
An intestate is presumed to have left heirs capable of inheriting.
5. BASTARDS.
Even if unsuccessful claimant of intestate's estate was legitimate child of intestate's father who was not married to intestate's mother, claimant was not entitled to inherit property from the intestate (Code 1930, sec. 1408).
6. BASTARDS.
Evidence sustained chancellor's finding that claimants of intestate's estate were the legitimate children of an illegitimate who was half-brother of the intestate and entitled to inherit intestate's estate where intestate had no kindred of the whole blood and the claimants' father was alive at time of passage of statute providing that children of illegitimates shall inherit from brothers and sisters of their father and mother (Code 1930, secs. 1403, 1408).
APPEAL from chancery court of Marshall county; HON. L.A. SMITH, SR., Chancellor.
D.M. Featherston and Lester G. Fant, both of Holly Springs, for appellant.
In the judgment of the appellant the interveners, Eck Pope and his sister, Lyda Pope, failed to meet the burden of proof required of them to establish any single particular on which could rest their claim for this estate in its entirety. In the first place, Eck Pope testified that he was 62 years old which made him born in 1877. Unless his father was under 12 years of age at the time of his birth his father is bound to have been born before 1865. If his father was 20 years old when he was born, his father must have been born in 1857.
Randal v. State, 4 S. M. (12 Miss.) 349; 1 Mor. St. Cas. 254.
Consequently, the parents of the alleged father of Eck Pope were slaves. The mother of Lizzie Polk was a slave born with the name of Polk to the family of Miss Emily Polk, with whom she lived after the war continuously in the servant's house of Miss Emily Polk, until she died, and she was never married.
Witness states that Ray Johnson was the father of Lizzie Polk; that Lizzie claimed him as her father and that Ray Johnson claimed Lizzie to be his daughter.
Haines v. Haines, 90 Miss. 100; Andrews v. Simmons, 68 Miss. 732.
We think the court is bound to reach the conclusion that there was not only not sufficient evidence to support the finding of fact by the chancellor, but that there was no evidence; and that when you take into consideration the fact that these were slaves during the time of their marriage, that there could not possibly be any relationship fixed.
We urge the supreme court to set aside these findings of fact by the chancellor, because it is not supported by the great weight of the evidence nor by any evidence whatever, and, if allowed to stand, a great injustice will be perpetrated and the estate of Lizzie Polk will go to strangers, whom, according to the record, she never knew or saw.
We respectfully submit that Section 1408 of the Code of 1930, Annotated is contradictory in its terms and a very hard statute to understand.
We call the court's attention to the fact that Section 1408, as has been brought down from the other codes, provides that: "All illegitimates shall inherit from their mother, and from her other children," but nowhere at any time provides that illegitimates shall inherit from their father. But it does say that "the children of illegitimates and their descendants shall inherit from the brothers and sisters of their father or mother, whether legitimate or illegitimate," giving the privilege to illegitimates that is nowhere given generally to legitimates; but it does in the last paragraph provide that "the mother of an illegitimate, her other children, and her kindred, whether they be legitimate or illegitimate, shall inherit from an illegitimate according to the statutes of descent and distribution," which is the first time that the same privilege is given to legitimates that had been given before in the statute to illegitimates. Our court from the beginning has held that such statutes making innovations on the common law should be strictly construed.
Railway v. Williams, 78 Miss. 209; Edwards v. Gaulding, 38 Miss. 165.
The statute never gives anywhere an illegitimate the right to inherit from his father. If he cannot inherit from his father, it would be impossible for him to inherit from his father's brothers or sisters. Nowhere does this Statute 1408 give the right to illegitimate children of the same father to inherit from each other. It does say in the last clause, which was passed in 1924, many years after the death of the people that we are talking about beyond a doubt, that illegitimate children of a mother might inherit from each other, but nowhere does it give the right of illegitimate children of fathers to inherit from each other. Witness Gillam puts all the relationship between fathers; consequently, if Wm. Polk, Jr., ever existed, there is no provision in the statute at all for him to inherit anything from his sisters and brothers on his father's side. Consequently, the legitimate son of William Polk, Jr., couldn't inherit.
Edwards v. Gaulding, 38 Miss. 165; I.C.R.R. Co. v. Johnson, 77 Miss. 727.
Hunter K. Cochran, of Holly Springs, for appellees.
The holding of the chancellor in this case was twofold: first, that Mattie Malone, the administratrix, is no kin whatever to the decedent, Lizzie Polk, and not entitled to inherit anything from her estate; second, that the interveners, Eck Pope and Lyda Pope Blakely, are the sole surviving heirs at law of the decedent, Lizzie Polk, and exclusively entitled to her estate.
The testimony is uncontradicted in that old man William Polk, Sr., married a negro woman by the name of Patsy and that there was born to them a boy by the name of William Polk, Jr., and that this boy married Susan Turner and that to this union was born Eck Pope and Lyda Pope Blakely. That shortly after old man William Polk, Sr., had been delivered of two children by his wife Patsy, she died, and William Polk, Sr., soon thereafter married Louise or Louisa Polk and that to this union was born Lizzie Polk. The evidence is further uncontradicted in that Lizzie Polk claimed and believed William Polk, Jr., to either be her brother or her half-brother. It is not clear which she believed him to be. It is also clear that William Polk, Jr., believed and claimed Lizzie Polk to be his half-sister.
The uncontradicted testimony offered by the appellant that Mattie Malone is the daughter of Marinda Johnson and Ray Johnson and that Ray Johnson was married to Marinda Malone and was not then, was not at the birth of Lizzie Polk, and never had been married to Louise Polk, mother of Lizzie Polk, is sufficient within itself to bar and disclaim any right that Mattie Malone might have had to the estate of the deceased, Lizzie Polk. This would make, on the testimony of appellant, Lizzie Polk the illegitimate child of Ray Johnson. The only kinship therefore that Mattie Malone could claim with Lizzie Polk would be through her father, Ray Johnson. The law is well settled in this state that an illegitimate can inherit through its mother but not through its father.
10 C.J.S. 118, Sec. 26.
In some jurisdictions an illegitimate can inherit from kindred of his father when allowed by statutory authorization.
10 C.J.S. 121, Sec. 26b.
In Mississippi there is no statute which allows an illegitimate child to inherit from its father, but it seems that an illegitimate may inherit from the brothers and sisters of their father or may inherit from their grandparents.
Sec. 1408, Code of 1930; McDaniel v. McDaniel, 85 So. 113, 123 Miss. 401.
The testimony of appellee plainly establishes the claim on the part of the interveners to this estate. The testimony of the witnesses both for the appellee and the appellant must plainly and finally preclude the appellant from any right of inheritance in this estate. The chancellor in his findings found nothing that would conflict or that would make unreasonable the belief of the testimony of Simon Gillam.
The chancellor's opinion and decree is entirely a finding of facts. It has been the policy of this honorable court for a great many years not to disturb a chancellor's or a jury's findings of fact unless they are manifestly wrong.
Interstate Cattle Co. v. Lapsley, 24 So. 532; Stephens v. Magee, 33 So. 73, 81 Miss. 644; Melchair v. Kahn, 38 So. 347; 2 Southern Digest, Appeal and Error, Key Numbers 1009-1009(3).
The presumption of law is that every person who dies leaves legitimate heirs.
State ex rel. Nall, Land Com'r, v. Williams et al., 99 Miss. 293, 54 So. 951, Ann. Cas. 1913E, 381.
Appellees respectfully submit that that portion of Section 1408 of the Mississippi Code of 1930 which reads, "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 their grandparents" is very material and pertinent to the issue involved in a correct and proper decision of the case now before this honorable court.
Appellants are the legitimate son and daughter of William Polk, Jr., who was illegitimate (for the sake of argument) and who was the half-brother to Lizzie Polk, intestate, who was also illegitimate. Under that part of Section 1408 cited by appellees in this brief, children of illegitimates can inherit from the sister of their father, whether legitimate or illegitimate. This is the appellees' case precisely.
Edwards v. Gaulding et al., 38 Miss. 118; Shelton v. Minnis, 107 Miss. 133, 65 So. 114; Davidson v. Brownlee et al., 114 Miss. 398, 75 So. 140; McDaniel v. McDaniel, 123 Miss. 401, 85 So. 113.
Appellees submit that although illegitimates cannot inherit through their father under Sec. 1408 children can inherit from the brothers and sisters of their illegitimate father.
It is clear that it was the intention of the legislature in 1871 that a great many barriers against illegitimates under the common law be removed and the court will solemnly follow the intentions of the legislature as set out by legislative acts, whether wise or unwise, unless they violate our constitution.
In re De Cigaran, 150 Cal. 682, 688, 89 P. 833.
The law presumes that all persons were born legitimate in the absence of proof to the contrary. In this case there is no proof to the contrary.
Howard v. Kelly, 71 So. 391, 111 Miss. 285.
Argued orally by Lester G. Fant, for appellant, and by Hunter K. Cochran, for appellees.
The deceased, Lizzie Polk, who had a fixed place of residence at Holly Springs, Marshall County, Mississippi, at the time of her death on July 1, 1938, left an estate of personal property in that county, worth approximately $2,750, and a small tract of land in the State of Oklahoma. She was a colored woman, and died intestate, at approximately 78 years of age, and left no children. The appellant qualified as administratrix of the estate within a few days thereafter. There were no debts other than the expenses of last illness and burial, and this litigation grew out of a controversy as to who is entitled to the net assets of the estate. Appellant claimed in her petition for letters of administration that she was the nearest of kin, half-sister, and sole surviving heir-at-law of the deceased, Lizzie Polk. The appellees, Eck Pope and his sister Lyda Pope Blakely, obtained leave to intervene, and they claim the property as the children and sole heirs-at-law of William Polk, Jr., deceased, an alleged legitimate half-brother of the intestate Lizzie Polk. And the proof at the hearing disclosed that William Polk, Jr., had changed his name many years ago from Polk to Pope, on account of having had some controversy with a white man of the same name about some mail.
The testimony on behalf of these intervenors, appellees here, disclosed that the father and mother of William Polk, Jr., were William Polk, Sr., and a woman named "Patsy;" that they were known to be living together as husband and wife about six years after the Civil War, according to the testimony of one Simon Gillam who says that he was born in 1854 and came to Mississippi from Raleigh, N.C., when he was about 21 years of age "during President Grant's Administration," that is to say, the witness claimed that he was 85 years of age at the time of the trial in the court below; that "Patsy" died, and that thereafter William Polk, Sr., and "Louise" began living together, as husband and wife, and became the parents of the intestate Lizzie Polk. There was no proof of record, or otherwise, of a ceremonial marriage between either the parents of William Polk, Jr., or those of the said Lizzie Polk.
In the case of Andrews v. Simmons, 68 Miss. 732, 10 So. 65, it was said that: "Chapter 4, Act of 1865, declares `that all freedmen, free negroes, and mulattoes who do now and have heretofore lived and cohabited together as husband and wife, shall be taken and held in law as legally married, and the issue shall be taken and held as legitimate, for all purposes.' . . . To further meet the necessities of the changed condition of those who had been in slavery formerly, a constitutional provision, in substantial agreement with the act of 1865, was inserted in the twenty-second section of the twelfth article of the constitution of 1869, by which it was declared that `all persons who have not been married, but are now living together, cohabiting as husband and wife, shall be taken and held, for all purposes in law, as married, and their children, whether born before or after the ratification of this constitution, shall be legitimate.' It will be observed that the constitution went no further than to establish the relationship of marriage between persons who were then living together and cohabiting as husband and wife, and to render legitimate the children of such persons, whether born before or after the establishment, constitutionally, of such marriage relationship."
No proof whatever was offered by the intervenors to show that the persons hereinbefore mentioned as parents of their father, William Polk, Jr., or those of the intestate Lizzie Polk, were living together and cohabiting as husband and wife, either at the time of the passage of the Act of 1865 or the adoption of the Constitution of 1869, notwithstanding the fact that the age of the said Lizzie Polk, at the time of her death in 1938, and who was younger than her alleged half-brother William Polk, Jr., was clearly established to be approximately 78 years by the witness John Martin, on behalf of intervenors, who was 72 years of age and testified that he had known Lizzie Polk since he was 10 or 12 years of age, and who admitted that she was a "good deal" older than he was, and also by the witness Betty Elliott, on behalf of the appellant, who was 76 years of age and had known Lizzie since they were children together, and testified that she was a year or two older than the said witness. Then, too, the intervenor Eck Pope testified that his own age was 62 at the time of the trial, having been "born in 1877," showing that his grandparents, William Polk, Sr., and "Patsy," could not have first become common law husband and wife during the 1870's, testified to by Simon Gillam who did not come to Mississippi until about "six years after the Civil War," or, as he otherwise expressed it, until during "President Grant's Administration" as aforesaid. Moreover, if Simon was 85 years of age at the time of the trial, as he testified he was, when he gave the date of his birth as February 4, 1854, and if he came to this State when he was 21 years of age, he arrived in 1875. He says then that "Patsy" died after he came here, and that her husband, William Polk, Sr., thereafter began living with the woman "Louise," as his wife; that Lizzie Polk was then born of that union. However, he further stated that he and Lizzie Polk taught school in the county together and that he tried to court her — "such courtin as it was" — and that the period covered by his teaching was from 1880 to 1887. In other words, Simon's version of the intestate's date of birth or genealogy cannot be harmonized with the established fact that she was at the time of her death approximately 78 years of age and was therefore born about the year 1860; neither can the fact that Eck Polk, the intervenor herein, was born, according to his own testimony, in 1877, be reconciled with the theory that his grandparents were not married until about six years after the Civil War, nor can it be true that Simon taught him as a pupil at school at some time between 1880 to 1887, if his grandparents did not begin living together as husband and wife until during "President Grant's Administration." The conclusion is inescapable that the William Polk, Jr., and his alleged half-sister Lizzie Polk, of whom Simon testified, and those by that name mentioned by the other witnesses were different persons, or that he was badly confused in his recital of chronological events. The proof on behalf of the intervenors does sustain the view, however, that their father, William Polk, Jr., and the intestate Lizzie Polk recognized that the relationship between themselves was that of half-brother and sister, and all of the evidence of any probative value in the case clearly establishes that they were both born in slavery time.
Having been born of a slave marriage, or rather of a relationship assumed by his parents during the period of slavery, the burden of proof was on the intervenors to show that William Polk, Sr., and the woman "Patsy" were living together as husband and wife in 1865 or in 1869, in order for the said William Polk, Jr., to have become legitimatized by the Act of 1865 or by the Constitution of 1869. It was not sufficient that they had lived and cohabited together prior to those times, but they had to be living together as husband and wife at the time the statute was passed or the Constitution adopted. This was likewise true as to William Polk, Sr., and the woman "Louise," the alleged parents of the intestate, Lizzie Polk. The lack of such proof in this record leads inevitably to the legal conclusion that both of the offspring remained illegitimate.
Assuming that William Polk, Jr., and Lizzie Polk were in fact half-brother and sister, as found by the chancellor, on account of their having the same father, we find that Section 1408 of the Code of 1930 provides, among other things, that: "the children of illegitimates . . . shall inherit from the brothers and sisters of their father or mother, whether legitimate or illegitimate . . ." Under this provision of the statute, the intervenors, as children of William Polk, Jr., an illegitimate, are entitled to inherit from the sister of their father, whether legitimate or illegitimate, that is to say, they are entitled to inherit from Lizzie Polk as half-sister of their father, for the reason that under Section 1403 of the Code of 1930, it is provided that: "There shall not be, in any case, a distinction between the kindred of the whole and half-blood, except that the kindred of the whole-blood, in equal degree, shall be preferred to the kindred of the half-blood in the same degree."
The effect of the provisions above quoted from Sections 1408 and 1403, respectively, of the Code of 1930, on the right of the appellees to inherit the property in question not having been emphasized in the original briefs, we have seen fit to call for additional briefs in order to afford the litigants an opportunity to be heard, before placing the decision of the case on that ground, and in so doing we were influenced by the consideration that this property would otherwise escheat to the state, although an intestate is presumed to have left heirs capable of inheriting, State v. Williams, 99 Miss. 293, 54 So. 951, Ann. Cas. 1913E, 381.
The appellant, Mattie Malone, whose maiden name was Mattie Johnson, claims that she was born of a marriage between Ray Johnson and Marinda Johnson and that her father, Ray Johnson, was also the father of the intestate, Lizzie Polk, but that he was not married to Lizzie Polk's mother — a condition of alleged kinship which even if found by the chancellor to exist would not entitle Mattie Malone to inherit property from Lizzie Polk under any of the provisions of Section 1408 of the Code of 1930, which reads as follows: "If any man beget a child or children by a woman whom he shall afterward marry, such child or children, if acknowledged by the man, shall, in virtue of such marriage and acknowledgment, be legitimate, and capable in law to inherit and transmit inheritance as if born in wedlock. 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. And the mother of an illegitimate, her other children, and her kindred, whether they be legitimate or illegitimate, shall inherit from an illegitimate according to the statutes of descent and distribution."
While it is true that the proof does not appear to be entirely satisfactory to clearly establish that William Polk, Jr., the father of the intervenors, appellees here, was the half-brother of the intestate, Lizzie Polk, if we look alone to the testimony of Simon Gillam hereinbefore discussed yet we are unable to say that the chancellor was manifestly wrong in finding that they had the same father, when the proof in that behalf is considered in connection with the testimony of other witnesses to the effect that each of them recognized their relationship as being that of half-brother and sister. And even though the chancellor was in error in finding that they were both born of common law marriages, assumed after the adoption of the Constitution of 1869, his decree would nevertheless be correct in holding that the appellees were entitled to inherit the property of the intestate, Lizzie Polk, deceased, since the appellees were shown to be the legitimate children of William Polk, Jr., an illegitimate, and hence entitled to inherit from the sister of their father, whether she was legitimate or illegitimate.
The first provision of the above quoted Section 1408 of the Code of 1930 is found under Article 3 from the Act of Wills, Hutchinson's Mississippi Code of 1821. The rigor of the common law which deemed an illegitimate to have no kindred was further modified by Article 115, chapter 60, of the Code of 1857 when the second provision now appearing in Section 1408 of the Code of 1930 was enacted. Again, the law of inheritance in that regard was made more liberal by Section 1955 of the Revised Code of 1871 when the next two provisions of said Section 1408, supra, were enacted, and still further by Chapter 162 of the Laws of 1924 so as to embody the last provision found in the said Section 1408 of the said Code of 1930.
In Edwards v. Gaulding, 38 Miss. 118, which is cited in Alabama Vicksburg Railway Co. v. Williams, 78 Miss. 209, 28 So. 853, 51 L.R.A. 836, 84 Am. St. Rep. 624, the Court held that even the legitimate children of an illegitimate, dying before the statute of 1857 was enacted, could not inherit from an illegitimate uncle or aunt dying after its passage. That decision, however, does not preclude the appellees in the case at bar from inheriting from the illegitimate sister of their father under the provisions of the statute which were added when the Code of 1871 was adopted, as aforesaid, for the reason that the proof in the present case clearly shows that William Polk, Jr., was living after 1871, because his son Eck Pope, was born during the year 1877.
It is true, as contended by the appellant, that Section 1408 of the Code of 1930 nowhere provides that an illegitimate may inherit from his father, but that fact is immaterial here for the reason that the appellees are the legitimate children of William Polk, Jr., and even though the said William Polk, Jr., be an illegitimate, the statute expressy provides that the children of such a person may inherit from the brothers or sisters of their father; and, although Lizzie Polk was only a half-sister of the illegitimate father of the appellees, they would be entitled to inherit from her under the provisions of Section 1403, Code of 1930, which provides for no distinction between the kindred of their father of the whole and half-blood, except that the kindred of the whole-blood, in equal degree, shall be preferred to the kindred of the half-blood in the same degree. In view of the fact that Lizzie Polk, deceased, has no kindred of the whole-blood, the appellees as children of her half-brother are entitled to inherit the property here in controversy.
While the proof also disclosed that the intestate Lizzie Polk, deceased, also recognized the appellant, Mattie Malone, as being a half-sister, the chancellor rejected the proof as to the fact of such kinship and found under the conflict in the evidence that the intestate and the appellant had neither the same father nor the same mother, and that they were no kin at all.
The decree of the court below must therefore be affirmed.
Affirmed.