Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-11-18
oaOaslos oF .FHs - counr.
OFFICIAL


s2inlons Of shs saPren,e Conrs or IN.
ss - EeAneasss, "a KnsxFtIies Sep.
sesaser = srsals iss8.'- s..ls-...
u. 4 Rhss aud ethsrs Wn. E. Pypa and othrr. -
lns acton Of ejsetment single question of law
-l'ss, ard mat is whether the1eiriniafe half sro1I
,erls ne leAd ~ al issiEnlate
,s<- <Ie case Il this; raneis Fugate Jr. disd in
n ,-s:r - - ~ nA1eoek eo9ntys ieaFinz 4 widow
-, = NV oeaa PAT leaving chiidrsu, and was
..,s ofnek o. the tract OF lad il e0ntloverSx The
Willow sold the land 10 tbs defeuelanfs ~ ,,t
10 possession. and that l. their tile ~ 1,sS,,5,ss
Claim As tle naf 6rothefs and sisters OF Tn. el.ss
sa nneer the Ia" OF deseents q Ia1s state The
esience 70 the action Is, that Traces knzate.
was base born having been the son OF ne VIE
/ Of the Francis tagats; Sr.. -begOtten and bss-n
| out 81 wedl0ck. IL znay be taken as settled -
me nndng o. the jury an thia ease that tins TACT u
esEaDlished and also that The plaintiffs the child
ren of the same mother born ia wediOek By tie
said Francis Sr her first husband, and AiOhon her
second husband But We do E01 enquire into the
snheieney q tae proof On those points nor passary
Judgment upon it, As the only mstsrlal question now
is that suggested above. Vas the SlreuiI Judge
right in holding that legiLmats brothers and sisters
could not inhert from iliegifmatez This depends
upon the construction OF the 1919 ch. I3 Car. and
Mich $50 As that IS The act which inforee, and
must Ak the rights OF the parues, at the death OF
kra1css Eugate Jr-, in lS47. No reference need be
made TO the act ct 1851 ch So the proviElons OF
ths Code, as they being subseq1snr 70 lie deati OF
~%-A A-~'~ e-t~~N --A1 Va ds@@S
parties. - ~ sst'v seds a-,
Before that statute the common law on that sub
jet was IN force in this SEate- BY th1t law, ulet
mates could neither taAcs nor transmit By descent
except TO their eNn oaspiilg for they had other
heirs, and were destitute OF inheritable blood 4 1
Kent, 40. The austery OF this rule mas been nit
gated IN most OF the States and civilized nations, il
favor Of tke mother and her natural ehldren tar
as related to her prePery, BY the act OF 1sE7s
shsrs there no ialgf.a issue, negtimate chiidren
were allowed 70 take the property of the mother,
beth real and personal, by tbs general rules Of de-
scent and distribution II then provides, (aud that
y the clause under c0nsgrucEon,) that should
eAsr Of such chidTea die iAStats, trito chd his Or
her BROKERS or eisters shall IA es male lake his or
her estate The Circuit Judge, in his construction,
confined this change OF she common law TO leglu-
mate rothersaad sisters, % the exclusion Of legn
mates. That is, that the statute made the brothers
and sisters Of bastard his heirs If they were also
bastsrds, bat continued the common law exclusion
CT them il they were legitimate. This IS diserlm-
inaton against the general policy Of the law, By
which lawful children OF kindred are preferred to
those that are base born. 1t is difficult TO suppose
that such was tine intention OF the Legislature. On
what reason could il be founded if such the in
teon It is not easy 70 conceive 1t should require
language toe plain for construction to authorize
Justify the conclusion that the Legislature intended
10 cOmmunicate inheritable blood 70 bastard Ia
favor Of brothers born out Of wedlOek, ike himself
and not to those equally 10 him in blood who
happened 10 be more fortunate Ly being lawfully
begOtten We would not presume, without the use
of phraseology entirely unequivocal, that such an
sbsurdity intended.
The provision is, that when bastard having pro
perty dies and without children ~hs brothers assd
slsters shall take his estate What authority have
we limit this to any particular description Of bro
TIERS or to inquire whether they the ilegiti- |
mate or lawful offspring Of the same mother? If
this could be done st ALL il would proper
in favor Of good morals and public policy, 70 dis
crinlinate the other way But we must take the
terms used have their ordinary meaning and EN-
H. ~
legitimacy. -
For this error, then, in the charge Of his Honor
question lying at the foundation OF the case We
reverse the judgment and order 4 trial.
s CARUrHERs.
A true copy. Test: C. w. NEIsoN, Clerk.