The eastern clarion. [volume] (Paulding, Miss.) 1837-1863, 1860-04-25
DECISIONS OF THE HIGH COURT
OCTOBER TERM, 1859.
r. O. Edwards, Administrator of /. F
Henderson, ct al. vs.. A. A. Gaulding


IS76S
r. O. Edwards, Administrator Of /. F. |
Henderson, ct al. vs.. A. A. Gaulding,
ct al.
The noncupative will of Cecilia Reagan,
deceased, was admitted TO probate in com
mon form in the Probate Court of Kinds
County, on the testimony of George j.
Hume and William L. Rhodes.
Roderick NJ. Rutland. claiming to be
the brother of the decedent. and Archi-
bald A. Gaulding, ct al, claiming to be
the nephews and nieces of the said Cecilia,
filed their petition in the Court of Pro
bates a. the heirs at law of said Cecilia.
seeking to set aside the probate, upon the
ground Of fraud, mental incapacity, and
invaliditN Of the acts relied on to estab-
lish a noncupative will.
The answer to the will states that Ce-
ella Reagan was an illegitimate. denies
that petitioners are her heirs at law and
distributes, denies all fraud III the execu-
ton of the will, and asserts its validity,
both as to the capacity of the testatOr and
the act Of noncupation.
Upon this petition and answer the
| Court of Probates directed two issues to
be made up and tried by jury. to ascer-
tain LIST, the heirship of petitioners, and
ID dcuisaUi ucl non. These issues were
both submitted at the same time to the
same jury, against the objections of the
administrator and appellant, and this con-
stitutes the first ground of error complain
| ed Of.
1t has been certainly leading object in
| legal proceedings, especially by the prin-
| ciples Of the common law, to avoid dupli-
city in pleading or a multiplicity of issues.
| The great design of the system of special
| pleading established by the common law,
was to reduce the mutual alteration of
| the parties to a single issue. that the Jury
might readily comprehend and decide
the truth between them; and even under
our relaxed system it has always been the
| just policy Of COURTS to avoid all unneces-
sary issues.
In the case before US. under the pro-
visions of our statute Hutch. Code, p.
65l, 29,) "any person interested" had
the right to contest the validity of the
will in question. If the conscience of the
Court was not sufficiently informed by the
| petition as to the interest" of the petit
TONERS, it certainly had the right to or
der an issue to ascertain that fact, but in
doing 50 the rules of law established for
/ convenience. certainty anu economy, a.
well as the attainment of Justice. require
that the preliminary question, upon the
determination q which the necessity for
further inquiry wholly depends, should
be first disposed Of The whole merits of
the controversy might otherwise be inves-
tigated and determined at the suit of
mere strangers having neither right nor
interest therein. When, if the single
4 gsl. e IL,
party petitioning and his right to file his
petition, had been submitted by ITSELF the
expense, delay and perplexity of such fur
Their investigation might oftentimes be
avoided. Another reason why such a
practice should not be INDUCED is that it
must result, as in this case, in the viola
ton of other important rules Of law secu-
ring, for Just and wise purposes, certain
rights to parties to such issues.
The party affirming the truth of the
facts involved in an issue, taking upon
himself the burthen of proving those
facts, is allowed the opening and conclu-
sion of the argument. But if a multipli-
city of issues can be thus submitted to the
Jury at the same time, by the order Of the
Court. the right thus secured may, with
out necessity, by such order, be taken
| main question involved. and transferred
| to his opponent. We think it therefore
most safe. Just and consistent with the
| principles and practice heretofore prevail
ing. that the Court of Probates, in order
ing the trial of issues, to inform its con-
science on disputed facts, should submit
but a single issue to the same jury, when
that issue, more especially as in this case,
involves the ascertainment of precedent
fact. the determination of which may pre-
clude further inquiry.
Ii Is not insisted in argument by coun-
sci for appellants. that the Court erred in
excluding the record of the former pro-
bate of the will in common form. We
think there was no error in this As a
Judgment it could not effect the parties
20 this proceeding, who were neither par
ties, nor privies, nor in any manner mott
fed of the former probate and judgment,
and having no opportunity to contest it,
or to be heard in opposition to it: on
well settled principles, it could have no
binding force or validity as to them.
The most important point involved in
this cause. arises upon the construction oil
the act of 23d February, 1916. confirming
certain rights upon Legitimate children
BY the 18th sec. of that act, Hutch. Code
p sol. it is provided that Hereafter all
Legitimate children shall inherit the
| property of their mothers. and from each
other as children of the half blood, ac
{ | cording to the statutes of descents and
distribution now in force in this State"
! The record shews that the decedent
| Cecilia Reagan, was herself an illegitimatt
child of Jemima Cotton. That Josiah
| Horton was also an Legitimate child o
, the said Jernima Cotton. That the peti
: mate children of Josiah Horton. Tha
the said Josiah Horton died before tn
23d February, 1916, and that the said Ce
| ella Reagan died in the wear 1852. leav
= ing DO heirs or distributes, unless pet
TONERS are to be so regarded. That tn
said Rutland is the legitimate child of tn
h said Jemima Cotton, born in lawful wed
/, lock after the birth of the said Cecil
; Reagan and the said Josiah Horton.
The question here presented, therefore
y Is, whether under the act of 1916, abov
i | quoted, the legitimate children of an illt
Il | Ultimate half brother who died before tn
=. passage of the act and before the death {
a his half sister, Cecilia Reagan, can inheri
- | from her she being Legitimate.
Il 1t is insisted that the act in auestio
was designed to confer upon bastards, 9
- a class, the right of inheritance, and t
\. prevent escheats, and being a remedis
% statute, it should be literally and benef
- cially eXpounded, so as to advance til
n remedy and suppress the mischief intenC
ed to be remedied.
:, If the intention of the Legislature wer
=. obviously to confer Unbeatable blood. {
y the right of inheritance generally upo
:, bastards as class, one duty would /
~ plain and easy. But the restricted Ian
!, guage of the act in question, especial
Il when considered in reference to the pol
- CIV of the law in all ages and countries j
I reference to this unfortunate class, clearI
shows that it was not the design of til
q, Legislature to destroy the disability
:; bastards generally, or to confer inheriti
- bic blood. Notonly the laws of England
but those Of all other civil states, forme
" excluded bastards from inheritanc,
i, unless there was subsequent legitimation
I; and this to discourage illicit commerC
:; between the sexes.-2 Kent 10Th edit
p. go.
! 1t seems to have been the design Of OIL
!, Legislature to modify the rigor Of the al
:, cient law, but at the same time not
~ give too much countenance to the indu
:. gence of criminal desire. While it is d
- signed not to suffer illegitimate childre
!; to be cast naked and. destitute upon Il
- world, it is certainly not designed to gil
- license to promiscuous concubinage /
- destroying the penalties, disabilities an
!. degradation which the common law hi
-, wisely attached to such unlawful indu
" gence.-2 Kent, p. Do. We are. Their
- fore. TO examine the act in question
- reference to the principles of the cor
- mon law for it Is not 10 he presumed TIL
~ the Legislature intended to make any i
n novation upon the common. law furth,
" than the case absolutely required -
u Kent 10Th edit p. 52l. In the constru
II ton of the act, it is never TO be forgotte
" that bastards are liable to all the disahi
~ ties to which the common law subiec
~ them as such, excGpt those from whiC
" the statute itself exempts them.-Steve
y sons heirs VS.. Sullivant, Wharton r.
- 26O; Scroggin VS.. Allen, Dana XIV.
- p. 3634.
~ BY the common law bastar,,s are Who'll
IL without inheritabla blood, and for tn
:, reason they cannot take by descent. n,
=; can they transmit by descent, except
III their own legitimate offspring, iar In,
81 can have no other heiTs--4th Kent. q
edit, p, 46l-3; , Kent p. 230-l-2.
~ cur statute of 1916 relates only to q,
II s-illegitimates. These petitioners a
io legitimate They do not, therefore, talk
unless by representation. If the aot 90
" ferred any right, of which the Iasher, ]
as siah Horton, died soi4ed or possessed, n
"a. devised "a hoqueathed, the general stg
~ ute of descents and distributions cast II
NJ inheritance upon his children, and n
-. otherwise.