Davidson v. Brownlee

*401 Stevens, J., delivered the opinion of the court. Appellees filed their hill in this case against the appellant, William Davidson, and against J. E. Carradine, as administrator of-the estate of Amanda Powell, deceased, seeking adjudication of the question whether appellees or appellant, William Davidson, inherited the property of the said Amanda Powell, whose estate was in process of administration. The bill sets out, and incorporates as a part thereof, all papers in reference to the appointment of Carradine as administrator of the estate of Amanda Powell, deceased, Carradine, as administrator, entered into a written agreement with complainants by which it was stipulated that appellees, the Brownlees, were the lawful heirs. Appellant, as defendant, filed no answer and entered no appearance whatever, and a decree pro confesso was taken against him. The final decree was entered upon the bill, agreement, and decree pro confesso as against the appellant, Davidson. The bill and final decree complained of show the following facts: That Amanda Powell died January 12, 1912, leaving no children and no descendents of children; that the deceased had two sisters, one Julia Robinson, a sister of the whole blood, and one Ruth Brownlee, a sister of the half blood; that both sisters predeceased Amanda Powell; that Julia Robinson, a sister of the whole blood, left as her sole heir at law..William Davidson, the defendant in the court below and appellant here; that Ruth Brownlee, sister of the half blood, left six children, who are the appellees; that, while appellant is the sole heir of Julia Robinson, he is an illegitimate. The question, then, is presented upon the face of the record whether William Davidson inherits the property of Amanda Powell to the exclusion of the descendants of the half sister. By section 1649, Code of 1906, “the descendants of the sister or brother of the intestate” inherits “in equal *402 parts among them their deceased parent’s share.” Section 1650, Code of 1906, is as follows: “Half Bloods. — There shall not he, in any case, a distinction between the kindred of the whole and half blood, except that the kindred of the whole blood, in equal degree, shall be preferred to the kindred of the half blood in the same degree.” It is further provided by section 1655 that: “All illegitimates shall inherit from their mother, and from her other children, and from her kindred, according to the statutes of descent and distribution. ’ ’ By section 1653, personal estate descends as realty. Our present law as to half bloods has been a part of our statutory law of descent and distribution since the early history of the state. The same provisions appear in Hutchinson’s Code, p. 623, section 50. Early decisions of this court put the construction of this statute at rest. “The construction of this statute in regard to kindred of the whole blood was settled by the supreme court of this state as early as 1828, in Fatheree v. Fatheree, Walk. 311. It was held that among collaterals, including brothers and sisters, the kindred of the whole blood would be preferred to those of the half-blood in equal degree. ’ In Scott v. Terry, 37 Miss. 65. our court, by Handy, J., called attention to the difference between our statute and the English statute of distribution and expressly held: “That the children of the brothers and sisters of the whole blood occupy the same position as their parents, by right of representation, and hence that they are entitled to the estate, to the exclusion of the sister of the half blood. ” The only difference between the last-mentioned case and the present case is that the sister of the half blood in the Scott-Terry Case was living at the time of the contest. In the present case, both sisters, the one of the whole blood and the one of the half blood, are deceased, and the contest arises between their repre *403 sentatives.. There can he no possible distinction drawn between the Scott-Terry Case and the ease at bar. Onr statute conferring upon illegitimates the right and power of inheritance is an innovation upon, and more indulgent than, the rules of the common law; and by section 1655 illegitimates inherit, not only from their mother, but from their mother’s kindred. The liberality of our law toward illegitimates was the subject of comment by the court in Shelton v. Minnis, 107 Miss. 133, 65 So. 114. If Julia Robinson had been living at the time of the death of her sister Amanda, she unquestionably would have been the sole heir. It follows that her son, as her representative, succeeds to the entire estate of Amanda Powell, deceased. A different conclusion was reached by the court below, and accordingly the decree will be reversed, and the cause remanded. Reversed and remanded.