Yancey v. First National Bank & Trust Co.

*1281 Stiger, J. — Jennie A. Yancey, guardian of the property of Merritt Milton Yancey, a minor, brought this action to establish the rights of her ward in the estate of Kate Gr. Ellis, deceased, who died testate on November 15, 1934. This litigation involves a construction of the following provision of the will of Kate G-. Ellis: “Tenth. AH of the rest, residue, and remainder of my estate, if any, of whatsoever nature and wheresoever situated, I give, devise, and bequeath as follows: “ (1) One-half (1/2) thereof to the children and grandchildren of the late Charles D. Ellis, of Charles City, Iowa, living at the time of my decease, in equal shares;” Charles D. Ellis was a brother-in-law of the testatrix. Car-lisle Ellis, putative father of plaintiff’s ward, Merritt Yancey, is a son of Charles D. Ellis. Merritt Yancey was adopted by plaintiff and her husband, Charles W. Yancey, in June 1917 when he was five months old and since that time he has lived in Charles City, Iowa, with his adopting parents. The petition alleges that Merritt was born out of wedlock January 1, 1917; that Carlisle Ellis is his father and Charles D. Ellis is his grandfather; that the testatrix, also a resident of Charles City, was the grand aunt of Merritt; that Merritt is entitled to inherit under the last will and testament of decedent, as a grandchild of Charles D. Ellis, the sum of $16,000; that the testatrix, Kate G-. Ellis, was fully cognizant during her life time of the existence of Merritt M. Yancey and his relationship to Carlisle Ellis and Charles D. Ellis and that the testatrix had full knowledge at the time of making her will that Merritt was the illegitimate son of Carlisle Ellis. Carlisle Ellis intervened in the case and defendants and intervener filed the following demurrer: “That the facts stated in the application attacked do not entitle the applicant to the relief demanded (Code See. 11141 (5) ) in that under the law of Iowa the word ‘grandchildren’ found in a will does not include illegitimates, unless an intent to include them can be deduced from the language of the will, without resort to extrinsic facts; that neither the Last Will and Testament and Two Codicils thereto of Kate G-. Ellis, deceased, nor the application attacked show any intent on the part *1282 of the testatrix, Kate G. Ellis, to include Merritt Milton Yancey within the term ‘grandchildren of the late Charles D. Ellis’ as used in Paragraph First of the First Codicil to her Last Will and Testament; that it therefore appears on the face of the application that neither the applicant nor Merritt Milton Yancey have any share in the residuary estate of Kate G. Ellis, deceased, under her Last Will and Testament and Two Cedicils thereto or any right to the relief demanded.” The demurrer was overruled, the defendants elected to stand on the demurrer, and on October 11, .1937, judgment was entered establishing the claim of Merritt Yancey against the estate of Kate G. Ellis. Defendants and intervener appeal. The demurrer admitted that Carlisle Ellis is the father of Merritt Yancey, an illegitimate, and that the testatrix knew of this relationship at the time she executed her will. At common law the word “children” when used in wills, deeds, or other conveyances, means legitimate children unless the will reveals a clear intention to use the generic term “children” so as to include an illegitimate child or it is impossible under the circumstances that legitimate children could taire. Extrinsic evidence was not admissible to show the actual intent of the testator. Hill v. Crook [1873], L. R. 6 H. L. 265; In re Pearce, 8 British Ruling Cases, 279; 7 Am. Jur. 715; Jarmin on Wills, 1175. Appellants state their position as follows: “We firmly believe that the term ‘grandchild’ as used in a will, by both popular definition and judicial definition, means a legitimate grandchild only and never includes an illegitimate unless the will itself shows a contrary intention, or where it is impossible from the circumstances of the parties for any legitimate child to take under the class. “We firmly believe that where there are legitimate grandchildren and where there is nothing on the face of the will showing an intention to include illegitimates, extrinsic evidence is not admissible to show any actual intent of the testator.” Appellants rest their case squarely on the! common law rule of construction. The case of Hill v. Crook, supra, is the leading English authority for the common law doctrine and the case of In re *1283 Pearce, supra, adheres to the Hill ease. In the note to the case of In re Pearce, we find the common law doctrine, which is expounded in the above cases, severely condemned in the following language: “A perusal of the decisions leads to the conclusion that this presumption (that the word child meant legitimate children) is most unfortunate and fundamentally unsound. * * * The true rule should be that ‘children’ is a neutral word taking its color from the surrounding circumstances. If it be considered as such, no difficulty will be experienced with the rule that parol evidence as to testator’s intention is admissible, as the existence of natural children known to the testator will necessarily create the ambiguity which opens the door to such evidence. In support of this contention that the natural meaning rather than the legal meaning of the term children should be the presumptive meaning, attention is called to the fact that some of the American courts, which have rendered lip service to the English rule have virtually discarded it in rendering their decisions; that later English cases have been much more liberal in permitting a resort to extrinsic evidence and to the circumstance that the judicial committee of the Privy Council, in the case originating in India in which they accordingly felt at liberty to discard the English rule, did so.” The above criticism of the harsh English doctrine was independent of modern statutes permitting an illegitimate to inherit from the mother, and father, if recognized, which statutes abrogate the common law concept that a child born out of wedlock is the child of nobody. In the case of Eaton v. Eaton, 88 Conn. 269, 91 A. 191, the court states [page 195]: “The word ‘children’ in our Statuté of distributions is interpreted to embrace a mother’s illegitimate as well as legitimate children for the simple reason that the law regards the former as well as the latter her children. In a word, the natural corollary of the English rule that the word ‘children’ or ‘child’ when used in a Statute is to be restrained to' signify legitimates only, is done away with as it logically must be. That corollary is the logical consequence of the proposition that the illegitimate is the child of nobody. When that proposition is transposed into *1284 ours that an illegitimate is the child of its mother, then all logical foundation for the corollary that the words ‘child’ or ‘children’ in the statute, will or deed is to be interpreted as limited to legitimates disappears, and the logical corollary becomes the reverse, so that presumptively the word ‘child’ or ‘children’ in a will embraces offspring legitimate and illegitimate. “That is the principle to be applied to the present case, so that, when the Testator made his limitation over to the children of his daughters, he will be held to have included all their children unless a different intent is to be gathered from the Will, read in the light of the surrounding circumstances, “We are unable to discover in this Will, so read, any intent upon the part of the Testator to thus restrict the natural meaning of the words he employed. On the contrary he, at the time his Will was executed, presumably had full knowledge of the existence of the illegitimate child, then seven years of age, of his daughter and of its illegitimacy. * * * Had he not intended that the illegitimate child shotdd share in the fruits of his bounty as a child of his daughter, it is scarcely conceivable that he would have been satisfied to use the unrestricted languáge that he did and language which in ordinary speech knows no distinction between legitimate and illegitimate.” In the case of Rhode Island Hospital Trust Company v. Hodgkin, 48 R. I. 459, 137 A. 381, the question was whether the phrase, “to the children of my daughter”, as used in a will included an illegitimate child of the daughter. The court held that under the Rhode Island statutes modifying the status of an illegitimate, a child born out of wedlock is a legal child of his mother and is to be so regarded with reference to statutes dealing generally with the legal rights of children, and in the absence of a provision in the will to the contrary the term “children” would include illegitimate as well as legitimate children of the testator’s daughter. Referring to an early Rhode Island case, In re Truman, 27 R. I. 209, 61 A. 598, which held that in the construction of a will the word “children” would generally be held to apply to legitimate children only, the court stated: “The court’s sole reference to authority was to a very illiberal decision of the House of Lords in 1873 [Hill v. Crook, *1285 supra]. The language of the court undoubtedly had reference to the English common law rule of construction. We do not regard the reference as throwing any light upon the decision to be made here, governed as we are by the very liberal attitude of this court with regard to the status and the legal rights of those born out of wedlock.” The court in the above Rhode Island case refers to the ease of Hastings v.' Rathbone, 194 Iowa 177, 188 N. W. 960, 23 A. L. R. 392, as illustrative of the growing liberality of the courts in the construction of statutes modifying the harshness of an earlier age. The court makes the following statement about the Iowa case: “It appears that in Iowa by statute an illegitimate child may not only inherit from his mother, but from his father when the paternity has been proved during the father’s life .time or the child has been recognized by him as his child. There is another statute of Iowa restricting the power of a testator to malee a testamentary gift to a charitable corporation in excess of one-fourth of the testator’s estate after the payment of debts, if a spouse, child, or parent of the testator survives him. One Hastings died unmarried, leaving a will giving his residuary estate, largely in excess of one-fourth his entire estate, to a charitable corporation and making no provision for his illegitimate child, whom the testator in his life time had recognized as such. The court held that the illegitimate .came within the designation of ‘child’ in the statute and was entitled to share in the distribution of the testator’s estate.” In the case of Smith v. Garber, 286 Ill. 67, 121 N. E. 173, the testator gave a life estate in certain real estate to Jane Gable and others and after the death of the survivor the land went to the child or children of Jane Gable. The sole question in the case was whether the defendant, the illegitimate child, was intended to be included by the testator by the words “child or children of Jane Gable”. The court held that the common law rule that an illegitimate was the child of no one was abrogated by the statutes allowing him to inherit from the mother and that parol evidence was admissible to show whether the testator knew of the existence of illegitimate children to aid in determining from the will whether he intended they should *1286 inherit. The court quotes from 2 Underwood on Wills, section 572: “It may also be shown by parol evidence that certain illegitimate children had, at or before the date of the will, acquired the reputation of being the children of the testator or of the person whose name is mentioned in the will as the parent. Parol evidence is always received to show whether testator knew of the existence of illegitimate children.” [page 175.] The court then states: ‘ ‘ There is no evidence in the record that contradicts the testimony of Bucher that she [testatrix] knew at the time she executed the will of the existence of appellee and of his relationship to Jane Gable. It is quite reasonable to presume that she intended to include him under the word ‘child,’ and also intended to include any other children of Jane Gable, if she should have any by her late marriage.” In the case of Harness v. Harness, 50 Ind. App. 364, 98 N. E. 357, the testator devised real estate to his son and the remainder to the son’s children. The court states [page 359] : “If, upon a consideration of the whole instrument, in the light of the circumstances preceding and attending its execution, it appears that the testator intended to include a child of illegitimate birth, such intention prevails and must be given effect. * * * Here there is evidence tending to show that the testator knew the parties to this controversy and all the facts and circumstances relating to them when he excuted his will, that his son acknowledged the appellee as his own son * * *." The court affirmed the decision of the lower court that an illegitimate was included by the word “children”. See Bennett v. Toler, 15 Grat., Va., 588, 78 Am. Dec. 638; Sullivan v. Parker, 113 N. C. 301, 18 S. E. 347; Elliott v. Elliott, 117 Ind. 380, 20 N. E. 264, 10 Am. St. Rep. 54. At common law an illegitimate child could not inherit because he was the son of nobody, sometimes called filius millius. The refusal of the above cases to follow the common law. rule is a logical result of their repudiation of the common law concept that a bastard child is a child of nobody and statutes changing the status of such a child. Independent of statute, as shown above, the rule has been subjected to severe criticism. It was inevitable that, through an enlightened and more tolerant public opinion and a broader sense of *1287 charity that developed, from a truer sense of justice, the harsh, bigoted, unsound doctrine of the common law should be modified by a more humane and charitable concept of the status of a child born out of wedlock. This benevolent change in public opinion is reflected in the above cases and our own statutes and decisions. Code, sections 12030 and 12031, read: “12030. Illegitimate children — inherit from mother. Illegitimate children inherit from their mother, and she from them. “12031. From father. They shall inherit from the father when the paternity is proven during his life, or they have been recognized by him as his children; but such recognition must have been general and notorious, or else in writing. Under such circumstances, if the recognition has been mutual, the father may inherit from his illegitimate children. ’ ’ In the case of McKellar v. Harkins, 183 Iowa 1030, 166 N. W. 1061, which reaffirmed the rule established by our prior eases that an illegitimate has inheritable blood and that children of an illegitimate daughter who predeceased her putative father inherited the share their mother would have received from her father, Justice Evans states on page 1043 of 183 Iowa, page 1066 of 166 N. W.: “ ‘A bastard * * * has no inheritable blood, and is incapable of inheriting as heir either of his putative father or his mother, or of anyone else, nor can he have heirs but of his own body.’ 2 Kent, Commentaries, 212. “This rule has been one of the reproaches of the common law, which has shocked the legislative and judicial conscience of the civilized world. That a bastard has no inheritable blood is only a legal fiction. Legal fictions have their appropriate uses. They are the stepping stones of the law’s reasoning; the parables whereby its principles are illustrated. When its reason fails, the fiction falls. The fiction that a bastard has no inheritable blood has been shorn of its reason in this state by legislation. It remains, therefore, a fiction only. Our legislation has conferred upon the illegitimate the right of inheritance, with appropriate safeguards as to the certainty of paternity. Why, therefore, should we deal with finespun theories of the common law as to inheritable blood? The only justification ever offered for the commonlaw fiction was that bastardy should be rendered *1288 odious. But bastardy is the sin of the parent; not of the child. The illegitimate child is as innocent as the babe of Bethlehem. Yet the common law held its fiction as a shield over the guilty parent, and frowned upon the guiltless child with the disdain of a Pharisee. Our early territorial legislation struck at the cruel injustice of this fiction. From territorial days until now, there has never been a time in this state when it has not been contradicted by existing legislation. The McGuire and Johnson cases were decided in response to the spirit of such legislation, and are in entire harmony therewith.” The court further states: “It is urged, also, that the statute which confers the right of inheritance upon the illegitimate does not change its status as an illegitimate. This may be conceded. It was so held in Brisbin v. Huntington, 128 Iowa [166], 175, 103 N. W. 144, 5 Ann. Cas. 931. But this does not reduce the effect of the statute which confers upon the illegitimate the right of inheritance. Though illegitimate, her disabilities as to right of inheritance are lifted by the statute. Her paternity being proved with that certainty required by the statute, her biological blood line becomes endowed with the right of inheritance.” In the case of Brisbin v. Huntington, 128 Iowa 166, 103 N. W. 144, 5 Ann. Cas. 931, the court was called upon to determine whether the term “lawful issue” used in a will included a child born out of wedlock and held that statutes conferring on an illegitimate the right of inheritance were statutes of descent only and did not legitimate a child born out of wedlock, and therefore the term “lawful issue” included only legitimate children. However, the court recognizes the modifying effect of our statutes on the common law rule that the word children includes only legitimates unless it appears from the will alone that the testator intended to include illegitimates in the following language [page 174 of 128 Iowa, page 147 of 103 N. W.] : “The decisions are unanimous that, in the absence of statutory provisions modifying the common law with respect to illegitimate children, the words ‘issue,’ ‘child,’ or ‘children,’ found in a will or statute, whether qualified by the word ‘lawful’ or not, are to be construed as only those who are legitimate, and, if others are intended, this must be deduced from the *1289 language employed, without resort to extrinsic facts. * * * This is on the ground that at the common law a bastard child had no inheritable blood, was kin to no one, could have no ancestor, nor be an heir, and could have no heirs save those of his own body. But this rule has been greatly modified by the enactment of statutes ameliorating his condition, and in different degrees conferring the rights of legitimate children. The bastard was nullius films mainly in the matter of inheritance.” (Italics supplied.) It should be noticed that Justice Ladd, who wrote the opinion in the Brisbin case, states that the common law rule is applicable only “in the absence of statutory provisions modifying the common law with respect to illegitimate children” and the learned Justice further remarks that “this rule has been greatly modified by the enactment of statutes greatly ameliorating his condition.” See generally 3 R. C. L. (Bastards) sections 45 and 46. Appellants cite among other authorities 70 A. L. R. 621, 2 A. L. R. 972; 7 Am. Jur., Bastards, sections 140, 141, 142; 94 A. L. R. 116; 69 C. J. pages 154 and 184. We have examined many of the cases cited and find that the authorities which sustain appellants’ contention are based solely on the common law rule of construction and the theory that an illegitimate is the child of nobody, and hold that modern statutes do not modify the common law doctrine. While many courts have refused to give any effect to statutes altering the status of illegitimate children and strictly apply the common law rule, on the other hand, as above shown, several of the American courts under the influence of statutes abrogating the harsh common law doctrine that an illegitimate is the child of nobody and a more enlightened conscience, have refused to follow the common law rule that the use of the word “children” or “grandchildren” excludes illegitimates unless the will clearly shows an intention to include them, or there are no legitimates to take. Some of the decisions hold that because of statutes the presumption is that illegitimates are included by the use of the word children. In Wisconsin it is held that a devise to a child presumptively refers to a legitimate only, but the presumption is impaired but not destroyed by statutes making the illegitimate *1290 the heir of the mother. See In re Kaufer Will, 203 Wis. 299, 234 N. W. 504. Our statutes have abrogated the common law concept which is, as stated in the case of Brisbin v. Huntington, 128 Iowa 166, 103 N. W. 144, 5 Ann. Cas. 931, supra, that “a bastard child had no inheritable blood, was kin to no one, could have no ancestor, nor be an heir, and could have no heirs save those of his own body”. [Page 174 of 128 Iowa, page 147 of 103 N. W.] Under our decisions, children bom out of wedlock have inheritable blood. That portion of the case of Brisbin v. Huntington, supra, found on pages 178 and 179, 103 N. W. on pages 148 and 149, relied on by appellants to support their contention is mere dicta. See 69 C. J. page 184, note 2. In the light of our statutes and decisions we conclude that we are not bound by the common law rule and declare that where such terms as children, grandchildren, or nephews are used in a will or deed and there are both legitimates and illegitimates and the testator has full knowledge of such fact and the intention of the testator is not clearly expressed in the will, the use of such words creates no presumption but the word is a neutral one and an ambiguity exists, and the intention of the testator or grantor must be determined not only from the provisions of the will but also in the light of the circumstances surrounding the execution of the will and parol evidence is admissible to prove the intent of the testator or grantor. The trial court was right in overruling the demurrer, and the judgment appealed from is affirmed. — Affirmed. ' Kintzinger, Mitchell, Richards, and Miller, JJ., concur. Sager, C. J., and Hamilton, Anderson, and Donegan, JJ., dissent. This ease was originally assigned to Justice Hamilton who prepared and submitted an opinion which was concurred in by Justices Donegan, Anderson and Sager. This opinion expresses the views of the four judges named and they join in submitting the original opinion of Justice Hamilton as dissenting from that of the majority of the court.