Smith v. Derr's Administrators

The opinion of the court was delivered by Lowrie, C. J. This case is covered by the principle decided in Doe v. Vardill, 5 Barn. & C. 438, 6 Bing. N. C. 385; that a person born out of wedlock, and legitimated by the Scotch law, by the subsequent marriage of his parents, cannot inherit land in England. That ease was so thoroughly and learnedly discussed in the King’s Bench, Exchequer Chamber, and House of Lords, that we are saved from the labour which would be required if the question were new. Nancy is an illegitimate niece of the intestate, born in Tennessee, and legitimated there on the petition of her father, by a proceeding in court. This forgives the vice of her birth in Tennessee, but not here. By our law, nene can inherit but such as are “ born in lawful wedlock;” except that a bastard may be heir to his mother, and perhaps some other recent exceptions. The fact that inheritable capacity is granted by law elsewhere, cannot change our law of descents. A capacity, in Tennessee does not [128] prove capacity here. So far as our law is concerned, legitimation by the subsequent marriage of the parents abroad, by act of a foreign legislature or by judicial decree abroad, are all fruitless. If they are allowed to constitute inheritable capacity here, then adoption might have the same effect. Then we should be without any law of inheritances in favour of relations in other states, except such as our neighbours should be pleased to give us. It is the fact of birth in wedlock that gives inheritable capacity, and not any artificial legitimation. Judgment affirmed,'and record remitted.