Daily capital journal. (Salem, Oregon) 1903-1919, 1911-07-20
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EERD T.HOPnES, Prep, 81 Great Jones Stfsd A"I't
for the escheatment Of property, Isl
as follows: when any person shall
die intestate without heirs, leaving
any real, personal or mixed property
interest or estate in this state, the
same shall escheat to and become
the property of this state. sec
1868 L. 0. L. Two iuries, by their
yerdicts, have found that John Nor
rison. deceased, was the illegitimate
son of Catherine France, and it is
not shown that he was legitimatized
by the subsequent marriage OF his
father and mother.
This action relates to the descent
of real property, and the first ques-
ton is, by what law is it governed.
AS a general principle 1t is well es-
tablished that the distribution OF per-
sonal property is governed by the
lex domicilii decedentis, and the de-
scent of real property by the lex rel
sitae. See note to Irving V. Ford, 20
L. R. A., III; Van Horn V. Van Horn
1O7 Ia, 247; III Wash, Real Proper
ty &c ed, Sec 1852; Cyc., 642;
Blyth v Ayres, SO Cal, jS2; 19 l.. R.
A., 40; Ross V. Ross, 129 Mass, 243.
Especially is this the rule where the
right to inherit depends, not upon the
status of the child as a Legitimate
child, but upon the law of descent.
! By the rule of the common law a
bastard was looked upon as the child
of nobody, and sometimes called fill
ius nullius; sometimes filius pOpuli.
He could not be the heir of anyone;
neither could he have heirs except Of
his own body. |. Blackstone Uewis
ed, ass, 459. In the interest of
justice the harsh rule of the common
law has ben changed by the statutes
of many of the states. Oar statute,
in this connection provides:
L. o. L., Sec. 1851. "An illegiti-
mate child shall be considered an
heir of its mother, and shall inherit
or receive her property, real or per-
sonal, in whole or in part, as the
case may be, in like manner as if
such child had been born in lawful
wedlock; but such child shall not be
entitled to inherit or receive, as rep
resenting his mother, any property,
real or personal of the kim
dred, either lineal or collateral,
of such mother; provided, that when
the parents of such child have for
mally married, and lived and cohabit-
ed as husband and wife, such child
shall not be regarded as illegitimate
within the meaning of this act, al
though such formal marriage shall
be adjudged to be void"
Sec. 1852 "If an illegitimate child
shall die intestate, without leaving a
widow, husband or lawful issue, the
property, real and personal, of such
intestate shall descend to or be re-
ceived by his mother; but if after the
birth of an illegitimate child the par
ents thereof shall intermarry, such
child shall be considered Legitimate
to all intents and purposes"
1t will be remembered that upoI
the trial Of this cause it was admit
ted that James Morrison, deceased
was the putative father of the intes
tate, and the testimony tends to show
that the latter never married, whicl
narrowed the issues. The trial court
/ under the provisions of the statute
quoted above, and following the Opin
ions heretofore rendered by thi
/ court in this case, submitted tn
question of fact fairly to the jury, ant
the jury rendered its verdict.
This appeal was perfected and tn
transcript and bill of exceptions pre-
! pared after the amendment of No
9 vember s, 1910, to Sec. 3 of Articl
e. VII of the constitution. The provi
sions Of such section of the constitu
4 ion, as amended, are therefore ap
- plicable hereto. Darling V. Miles
Y 112 PaC., (Or.) 1884. Under our cor
e stitution, the right of trial by jury /
a all civil cases remains inviolat,
= Sec II, Art. |. In the considerable
= Of no case should this right
!. abridged. In Wills v. Palmer Lun
/, Der Co., lis Pac., (Or) All, thi
l. court, speaking through Mr.. JustiC
r Moore, announced the rule governin
: cases on appeal, since the constitr
tional amendment referred to, as 70
l. lows:
d Giving to the amendment the lii
r eral construction necessary to effet
d tuate the purposes indicated, we b,
e lleve a fair Interpretation of the a
l. tered organic law regulating practiC
e on appeal in this court demands
n careful examination of the entiI
s record of the trial of an action ;
:, law, including a transcript of the tei
Y timony brought up for review. an
t. any other material matter, and If IL
II judgment given is found to be sue
s. as should have been rendered in II
4 case, and atfirmance of the determil
i alton of the lower court should 70
y low without adverting to or con
o menting upon, in memoranda
is opinion, any trivial errors that ms
e have been committed. Where, HOY
ever, 1t appears from such eXamini
< uon that the judgment complained