*Orangeburgh.*

Tried before Chancellor Waties.

#### Eleanor Jones, *vs.*Sarah Burden, et al. Administrator of M. Burden.

The complainant claims, as sister of the intestate, Matthew Burden, a distributive share of his estate, he having died without issue.

It appears from a verdict found on an issue directed by this court, that Burden was the illegitimate son of the complainant’s mother. The question then is, whether any right can be derived by the complainant, from one thus spuriously related to her f

I iiave felt the strongest inclination to support this - claim, and have been desirous of finding some ground which would authorise it; for although I think the best interests of society require that a bastard should not have the same civil rights, as one born in wedlock, and should not therefore be allowed to inherit himself, yet it appears to me too rigorous to extend this rule of policy to any claim to be derived from him, and especially to the claim of one who was born of the same mother. The rule is not applied to the issue of a bastard, and I should have been glad to find that it did not (as the counsel for the complainant contended) apply to any collateral relation. But after a full examination of the authorities. *440they appear too explicit on the point to leave any rooni for discretion. In 2 Bla. Com. 249» the common law is thus strongly stated: “ as bastards cannot be heirs themselves, so neither can they have any heirs but those of their own bodies; for as all collateral kindred con-, sists in being derived from the s-ame common ancestor, and as a bastard has no legal ancestors, he can have no collateral kindred, and consequently can have no legal heirs but such as claim by a lineal descent from himself.” — . How then can the complainant, who is a collateral and nota lineal relation, inherit from the intestate ? It was supposed that Mr. Wooddeson, in his statement of the common law on this subject, has admitted an exception which is favorable to her claim. He says, vol. 2, page. 260, *iC*if the issue of a bastard purchase lands in fee, and die childless, although those lands cannot descend to any heir on the part of the illegitimate father, yet the heir on the part of the mother of such iirst purchaser may succeed.” It would be sufficient to observe, that the case contemplated by Wooddeson, is not like the one before' the court. It is the case of a collateral, deriving a title from the issue, (that is the legitimate offspring,) of a bastard, and not as here, from the bastard himself. Such a title is allowed to bo deduced through the mother, because the father’s blood having no inheritable quality, cannot" Convey it, and the maternal stream may therefore be resorted 'to. The same rule obtains in the case of an attainder, and for the same reason. The father’s blood being corrupted, is considered as extinct j but the mother’s furnishes a pure inheritable stream, by which the title may be conveyed. Á brother may therefore inherit from a brother, although their father was a bastard ; bat the case here is a sister claiming from a brother who was himself a bastard ; and upon this point Mr. Wooddeson has been as explicit as judge Blackstone. In the same passage quoted, he expressly says, “ a bastard can have no heirs except his own progeny.” In vol. 1, 396, he further says, eí a bastard may take an estate to him and his heirs generally; yet it will not come by descent tó his legitimate brother, born of the same parents., (in case-*441he dies without issue,) but will escheat. For a bastard, by the laws of England, is incapable of transmitting; real or personal property by inheritance, except to Jus Wife and his lineal descendants.” And again, page *$91',*“ if a bastard possessed of personal effects dies intestate, and without wife or children, the crown is entitled to such property.”

*440FEB’Y. 1814.

*441It. is evident from these authorities, that by tho Common law, no collateral right can be derived from a bastard, being as he is emphatically called, nuiiius filias, he has no father cr mother, and can therefore have no brother or sister, but is regarded ana separate creature, unconnected with the human race by any links, except those which he- may form by his own progeny.

It has been insisted, however, (and tho counsel ch icily relied on this ground,) that the complainant’s right is supported by the civil law, and that this ought to ieihernk; of decida!,-! with the court.

The civil law would, no doubt, decide for the, complain;! nl, ansi no judge is moro disposed than I am, to draw from that rich fund of written wisdom 5 but the civil lav/ is not the authoritative law of this court j it becomes so only by adoption, and it can only bo adopted, where tho rules of the common law or of equity are, doubtful or silent. II(it the, common law here is plain and positive, and has been always followed by a court of equity. [Seo Newland on Contracts, *70;*Pre. Cha. 475.] The civil law, therefore, can have no weight, and much less can It over-rale the established law. I am bound then, to dismiss the bill.

Tho complainant) however, will most probably find relief elsewhere,: for there is little doubt, that the, legislature- will, on her petition, release to her, the share whir!; accrues to the state by the illegitimacy of her brother. This is so much the, practice, in England, that jüdsg Ilku ksfone. considers it as almost of course.

The hill must be dismissed with costs.

Thomas 'Watxss,.

*442In both these cases, which turned on the same queetion, and on which the two chancellors had given differ-Cj^ opinions, there were appeals, which were brought and argued together in the court of appeals, present chancellors Besaussure, Gaillard, Waties, James and Thompson.

Mr. Miller and Mr. Felder, argued to reverse judge James'1 decree, and to affirm judge Waties’ decree. That the laws make a radical distinction between legitimate and illegitimate children, who are held to be incapable of inheriting veal estate, or of taking personal estate, under the statutes of distribution. The property of the father shall rather escheat than go to illegitimate children, and this is a constant operating disqualification, effective in every case where it applies, whether in the particular case the law under consideration speaks of illegitimacy or not. . The common law, and the law abolishing the rights of primogeniture and for the more equal division of intestates’ estates, always have legitimate children in contemplation, in all their regulations. The laws never contemplate illegitimate children but as objects incapable of taking, and our statutes have superad (led disabilities. For a father of a bastard, if he lias a wife and child living, is precluded from devising or bequeathing to such bastard child more than a fourth part of his estate *•,*and without such bequest he would take nothing.

If the general words of our act of 1791, regulating the descent of real estate, and the distribution of per > pona!, are permitted to include bastard children, and to allow them to take in any case, then they may as well come in and take equally where there are legitimate children, as where there are none but collateral relations. The civil law, properly understood, does not af - fect this question. When it speaks of children, it means legitimate children. — See 1 Domat. 569, 646, and l Williams, 49.

Mr. Starke and Col. Blanding, argued in support of judge James’ decree, and to reverse judge Waties’ decree.

*443It is in the power of the court to follow the civil law rule on this subject, and that is the most consistent with reason and humanity, and is not productive of any immorality. There is no certainty as to tké putative father, but there is perfect certainty as to the mother.

There are cases of great hardship under the old common law of excluding illegitimates. The circumstances in the case of Barwick, brought up by appeal from Camden, are peculiarly hard. A mother who had acquired some property, gave part of it to her illegitimate son. He died leaving neither wife nor child. Shall the mo» ther ho excluded from taking, and shall the .property es» cheat ? This would he peculiarly cruel.

The statute of 1791, enacts generally, that the property of an intestate shall go to the wife and ahildren, and in default of these to other near relations. It uses general words, and does not distinguish between legitimate and illegitimate. The. broad words used will comprehend both. — See 6 Bacon, 386, for the rules of' construction of statutes.

Illegitimate children are within the provisions of the restraining marriage act in England, tinder the general denomination of children.

The rigor of common law rules is not imperatively yoked on us. The old acts establishing and regulating our courts of equity, direct and authorize it *to*follow the rules and regulations of the court of chancery in England, and that court resorts to the civil law rules, and breaks in upon the common law rules, when general convenience requires it. The civil law rule, admits bastards to inherit from the mother — Cooper’s Just. 215 5 and as from the uncertainty of the putative father, an illegitimate cannot have any agnates, or paternal relations, the coguates or maternal relations, are let in to inherit the property of an illegitimate intestate.' — Cooper’s Justinian, 217.

Bastards succeed to the inheritance by the civil law, at least in a limited manner, (and that is favorable to thó mother’s claim.) — 1 Domat. 45, 569.

*444Jn enacting tlio statute of 1791» regulating descents,. and dividing the estate,? of iuteslates, the legislature have abandoned the rules of the common lave, and adopt', ed those of the civil law. Thus the half blood is let in to inheritances of real estate, contrary to the old feudal doctrine. So the preference of the paternal to the maternal line is given up, and they are put upon an equal footing. And the application of the civil Jaw principles, would permit the illegitimate to inherit from the mother, and the mother anu the relations of the illegitimate,"on the, maternal side, inherit from him.

In the great case of Edwards *vs.*Freeman, 2 P. Williams 441, the occasion of passing the statute of distributions, is stated by Sir Joseph Jekyl, the master of the rolls, have been, to put an end to the long, contest between the temporal ami spiritual *courts;*and was made in favor of the practice of the spiritual court, which made equal distribution among the children, agreeable to the civil law. And lord chancellor Hardwick says, in the case of Wallace *vs.*Hodson, 2 Atkins 115 and 117, that lie lakes it to be. fully s« tiled, that this act *ja*to be construed by 1 lie rules of the. civil law $ and the statute of 1 dar. 2d, into be construed in the same manner, being in continuance of the act of Charles 2d, with three additional clanc/ s.

All tiie judges of the Court of Appeals, (except judge. James,) after maturely deliberating on these cases- and the arguments of counsel, ordered and adjudged, that the decree of the circuit court, at Orangeburg1!, in the ease of Eleanor Jones *vs.*Burden, administrator of Burden, should be affirmed for the reasons given by judge Wattes, in the decree : And that the decree of the Circuit Court at. Camden, in the. case of Ann Barwick, *r::.*the Administrator of M. Gayle, should he reversed.

Chancellor James differed from his brethren la both cases'. *