Dickinson

Foster, J. The appellants are the grandsons, of Mary Cotton, their mother being her illegitimate daughter. Mary Cotton was a sister of the testatrix, Eliza J. Cotton, and it is from the decree of the court of probate approving her last will that this appeal was taken. The mother and grandmother of the appellants had been dead some fifteen years at the time of the death of the testatrix, who was a single woman, having never been married. She left no parents, no brothers or sisters, and no blood relations, unless the appel« — 500 — lants are to be so considered, nearer than cousins. In the Superior Court the appellees moved to dismiss the appeal on the ground that the appellants were not heirs at law of the deceased, and had no interest in or title to her estate. The question thus raised is reserved for the advice of this court. Were this question to be decided by the common law of England we should, without hesitation, advise that the appeal be dismissed. The appellants derive their title through their mother, and succeed to the same rights to which she, if living, would succeed. She was an illegitimate. In the XCYII number of the Edinburgh Review, in an article on the law of legitimacy, Gardner Peerage case, it is stated that at the time of the conquest bastards could inherit land in England, and also in Wales before the statute of Wales, 18 Edw. I. If this were so, the law was soon changed. Glanville, the earliest writer on the common law, says: “ Neither a bastard, nor any other person, not born in lawful wedlock, can be, in the legal sense of the term, an heir.” Seres awtem legitimas nullus bastardas, nee aliquis, qui ex legitimo matrimonio non est procréalas, esse potest. Lib. 7, Cap. 13. This rule, though modified in some respects by various acts of Parliament since passed, is, substantially, the law of England at this day. The denial of all rights as an heir was not the only disability to which this class of persons was subjected in England. A bastard was the child of nobody; he was not entitled even to a name. It is however gravely asserted by the text writers that he might gain one by reputation. He did not take his mother’s place of settlement, but was settled wherever he chanced to be born. As he was related to nobody he could have no heirs, except of his own body; and so if he left no descendants, his property escheated, and now, by law, escheats to the crown. In re Wilcox Settlement,1 L. R., Chan. Div., 229. He was incapable of holy orders, and disqualified from holding any dignity in the church. In Germany, no farther back than the time of the Reformation, bastards could not give evidence on the rights of citizens, and down to a very recent period certain Saxon local laws enacted that no persons' of illegitimate birth should officiate in any judicial office. — 501 — Inquiries were made into the birth of a person, at the academies and schools, before he was admitted to the degree of doctor, or any other high dignity. By the law of Scotland he was disabled, ex defectu natalium, from bequeathing by testament without letters of legitimation from the sovereign. By statute, 6 Will. IV, Cap. 22, this disability was removed. The preamble of the act says: “ Whereas, it is just, humane, and expedient, that bastards, or natural children, in Scotland, should have the power of disposing,” &c. By statute 7 and 8 Viet., Cap. 88, trustees or managers of savings banks are empowered to pay the money deposited by an illegitimate depositor, dying intestate, to the persons who, in their opinion, would have been entitled to the same according to the statute of distributions, if he had been legitimate. While the law was and is thus rigorous in its application to persons born out of lawful wedlock, it was remarkable for the liberality with which it regarded all those who were born in wedlock. No matter how soon after the marriage a birth followed, the offspring was legitimate. All children born during the coverture, though the wife lived apart from her husband in notorious adultery, were, for a long time, held legitimate, unless the husband was proved to be impotent, or beyond the four seas for so long a period before the birth as to make it a natural impossibility that he could be the father. As to posthumous children, the law, at times, has gone to foolishly absurd lengths to hold them legitimate. In the time of Edward II, the Countess of Gloucester bore a child one year and seven months after the death of the duke, and it was pronounced legitimate. In the reign of Henry VI, Mr. Baron Rolfe expressed the opinion with apparent gravity, that a widow might give birth to a child seven years after her husband’s death without injury to her reputation. The Roman law was much less severe, and imposed fewer disabilities upon bastards than the common law. Bastards could inherit from their mothers. A distinction was made between illegitimates born of a concubine, and those born of a prostitute. The former were styled naturales, the latter, spurii. The concubine had a legal relation to the family, — 502 — which was sanctioned by the church down to the Council of Trent; and by subsequent marriage her offspring were made legitimate. The naturales were not only lawful heirs of the mother, but were entitled to support from the father. The sjpurii had no legal rights of inheritance or to a support. The laws of the different states of our Union, differ widely as to the rights of illegitimates. Most of the states have passed statutes mitigating more or less the rigors of the common law, and conferring rights which that law- denied. The general tendency seems to be one of increasing liberality. In most, if not in all of the states, they inherit from the mother, and the mother from them. In some statés they inherit from each other, from collateral kindred, and from the father, when there has been a general, notorious, and mutual recognition. In many of the states subsequent marriage of parents legitimates. Connecticut is one of the very few states, possibly the only one, that has passed no statute defining the rights of bastards. We have a common law of our own, built up from the usages and customs of our people, and from various judicial decisions. It differs from the common law of England ánd from the Roman law. The earliest case in our reports, where the rights of this class of persons were judicially considered, is Canaan v. Salisbury, 1 Root, 155. That was a settlement case, and it was held that a bastard was settled with the mother. The court' said that such a rule was agreeable to the law of nature and reason. This was in 1790, and was a clear departure from the common law of England, which did not' permit an illegitimate child to inherit even a local habitation or a name from the mother. This case, though decided by the Superior Court, has never been doubted, but always recognized as sound law. It has been followed and sanctioned by this court in divers cases. Hebron v. Marlborough, 2 Conn., 18; Windsor v. Hartford, id., 356; Danbury v. New Haven, 5 Conn., 584; Oxford v. Bethany, 19 Conn., 229; New Haven v. Huntington, 22 Conn., 25. In the case of Woodstock v. Hooker, 6 Conn., 35, it was decided that a bastard born in Massachusetts, of a mother — 503 — having a settlement in this state, took the settlement of the mother. Peters, J., who gave the opinion of the court, said: “ It has been discovered in this state that a bastard is the child of his mother,” (p. 36.) In Guilford v. Oxford, 9 Conn., 321, it was decided that a bastard child took the new settlement of its mother acquired by marriage, though the marriage was procured by the fraud of the mother, she being pregnant at the time, and concealing that fact from her husband, who supposed her to be a chaste woman. In New Haven v. Newtown, 12 Conn., 165, it was held that the new settlement of a mother acquired by marriage, was communicated to her illegitimate children, whether born before or after the marriage. Williams, C. J., said: “The fundamental maxim of the common law, that a bastard is nullius filius, is entirely rejected here, and such a child is here recognized by-' law as the child of its mother, with all the rights and duties of a child,” (p. 170.) The cases of Newtown v. Fairfield, 18 Conn., 350, Oxford v. Bethany, 19 Conn., 229, and New Haven v. Huntington, 22 Conn., 25, are to the same effect. In Bethlehem v. Roxbury, 20 Conn., 340, Church, C. J., said: “The feudal, repulsive doctrine of the common law, that a bastard child has no parent, no protector, not even a mother, has never found favor in this state.” In the case of Brown v. Dye, 2 Root, 280, it was decided, that under, our statute of distributions a bastard might take as a brother to one who was born of the same mother. This was in 1795, and the decision was rendered by the Superior Court. The court said: “The common law of England, which has been urged in this case, is not to be mentioned as an authority in opposition to the positive law of our state, and nothing can be more unjust than that the innocent offspring, should be punished for the crimes of their parents by being deprived of their right of inheriting by the mother, when there doth not exist among men a relation so near and certain as that of mother and child.” The doctrine of this case was recognized and followed by this court in the case of Heath v. White, 5 Conn., 228, where it was held that a bastard might inherit real estate from his mother, as a child. That case — 504 — apparently recognizes the relation of parent and child between the mother and her illegitimate offspring to be legally as perfect as between the mother and her legitimate offspring; giving the same rights, imposing the same duties. It is abundantly clear from this examination of our law that we have departed very widely from the common law of England as applicable to illegitimates. We have been thus minute in the examination of the authorities, even at the expense of some prolixity, in order to determine whether the question before us has not, in effect, been long since disposed of; whether the principles recognized as established, nearly a century ago, and ever since upheld and adhered to, are not conclusive. We have seen that it was at first held that a bastard derived its settlement from its mother, not from its place of birth. This was analagous to an interest derived by inheritance, and recognized 'the legal relation of parent and child. It was next held that illegitimate children of the same mother could inherit from each other. This recognized the relation of brother and sister. ■ It was then held that an illegitimate child could inherit from its mother; and so the relation of parent and child was most directly recognized, and the reciprocal rights and duties growing out of that relation were thoroughly established. . The learned counsel for the appellees, admitting that a wide difference exists between our law and the English common law as to the rights of illegitimates, still insists that, under our law, their right, and the right of their descendants, is strictly lineal, never collateral; and so the appellants have no rights as heirs at law of the testatrix. In the expressive language of the counsel, though this progeny be grafted on the lineal stock, it has not been grafted on the collateral, and it is urged that this ought not to be done; that it will be taking another and farther departure from the wise principles of the common law, and that it will tend to encourage immorality and impair the sanctity of the marriage relation. These views have been pressed upon us so eloquently and so foi'cibly that we should regret to be thought insensible to the appeal.. — 505 — If however we find the law to be in favor of the appellants, whatever we may think of its wisdom or its policy, we must so pronounce it. When the earls and barons of England, in the parliament of Merton, were asked by the bishops to change the laws of the realm and make those children who were born out of lawful wedlock, legitimate, by the subsequent marriage of their parents, as they were by the canon law, they made that reply which has since been so famous in history, Nolumus leges Anglice mutare. Whether we are asked to abridge or extend the rights of illegitimates, our reply must be, not that we are unwilling, “ nolumus or that we are willing, volumus; but that we are unable, non possumus, to change the laws of Connecticut. That high prerogative has not been granted us. We sit here to declare the law, not to change it. After as careful a consideration of the question as we have been able to give, we think that the points decided in the cases we have quoted tend strongly to the conclusion that these appellants, by the law of Connecticut, are heirs at law of the testatrix, Eliza J. Cotton. We might, we think, safely rest our decision here, but as the question is one of much importance, our statute of distributions ought perhaps to be examined, and its construction considered, before reaching a positive conclusion. The earliest provision in our colonial laws as to the distribution of estates was in 1639. At the October term of the General Court in that year, an order was passed directing the “orderers of the affairs of the towns,” when any person should die intestate, “ to cause an inventory to be taken, and then the public court may grant the administration of the goods and chattels to the next of kin, jointly or severally, and divide the estate to wife, if any be, children or kindred, as in equity they shall see meet,” &c. Col. Rec. 1636 to 1665, p. 38. This order was embraced in the code of 1650, usually styled Mr. Ludlow’s Code. Id., 553. In the revision of 1673 some alterations appeared. After providing for the inventory, now to be made by the selectmen, and the granting of administration, the court was then directed “to divide the estate to wife, if any be, and children — 506 — or kindred according to law; and for want of law, according to rules of righteousness and equity.” In 1699 our statute of distributions; properly so called, copied substantially from a law of Massachusetts of 1692, was passed. Some alterations have been made in it from time to time, but the clauses bearing on1 the question- before us, “ to and among his children, and such as shall legally represent them, and if no child to the next of kin to the intestate,” have been changed but slightly in terms, and not at all in meaning. By the common law no doubt the terms “child” and “children,” when used in statutes, wills, and legal instruments generally, meant legitimate child and legitimate children, just as positively as if the term “legitimate” were prefixed. The case of Dorin v. Dorin, 7 Eng. & Irish App., 568, decided by th§ House of Lords during the past year, carries this principle to- such an extent as in our opinion-entirely to frustrate the intent of the testator and leave the corpus of the estate undisposed of. The still more recent, case, In re Ayle's Trusts, 1 L. R., Chan. Div., 282, decided since this case was argued, holds the same doctrine. We cannot think that this was the meaning which our legislature affixed- to these words in this statute. That body was made up generally of plain men, and they made laws for plain men. That they understood the terms “child” and “children,” so far as the mother was concerned, to comprehend her illegitimate, as well as her legitimate offspring, we entertain no doubt. They used those terms in their common, popular signification, rather than with reference to any legal or technical sense. They liad as little reference to the technical meaning of words in the English common law, as they had to the English law of inheritance, which they disregarded altogether. Looking more to the example of the Hebrew patriarchs and to Job, who gave his daughters inheritance-among tlicir brethren, than to the common law of England, they distributed lands to daughters, equally with sons, except that the eldest son took a double portion. The famous case of Winthrop v. Lechmere was an appeal from our colonial', courts to the king in council. Mrs. Lechmere, the sister of — 507 — Mr. Wintlirop, liad been granted a share with him in the lands of their father and uncle. The order in council on the appeal, passed in 1727, reversed all the decrees of our colonial courts in favor of Mrs. Lechmere, and pronounced our law for the settlement oí intestate estates null and void. In the revision of the laws in 1750 this preamble to the law appeared: “Whereas, the lands and real estate of persons dying intestate in this colony, by ancient and immemorial custom and common consent of the people, have descended to and among the children, or next of kin of such intestate, as heirs of such intestate,” &c., &c. “ Therefore, be it enacted,” &c. This preamble was probably all the apology which our colonial legislature was disposed to make for the discrepancies between our law of inheritance and the law of England. The importance of this preamble, in this connection, is to show that our law grew out of the customs and usages of the people. The terms used in it therefore should not he construed with reference to like terms in an act of parliament, but rather with reference to their ordinary, popular signification here in the colony. The numerous decisions which we have quoted from our reports, from the earliest to the latest, recognize the relation of mother and child, existing as well when the child was illegitimate as when legitimate. That an illegitimate child is as certainly next of kin to its mother as a legitimate child, seems to us a proposition that does not require proof. We think of no plausible reason that can be given to the contrary. If the mother of these appellants had died before her marriage, leaving her mother, Mary Cotton, surviving, that mother would have been her heir at law. The testatrix, that mother’s sister, on her death, would have been her heir at law. Thus the testatrix, indisputably, would have succeeded to the estate, had there been any, of her illegitimate niece. Would the death of the mother of the illegitimate niece have made any difference ? Would not the testatrix still have been entitled as heir jat law? As her sister’s heir, would she not have been entitled to stand m her sister’s place as her legal representative, and so claim as next of kin to the intestate ? This was — 508 — the precise question in the case of Cooley et al. v. Dewey, 4 Pick., 93. The uncle and aunt of a bastard claimed his estate as heirs at law, his mother being dead. The court, Parker, C. J., said: “ The merits of the appeal depend on the question whether the mother of the deceased, he being a bastard, was, within the meaning of our statute of distributions, his next of kin; for if she succeeded to his estate on his death, the appellants [her brother and sister] would of course take the whole between them, either as heirs of their sister, or, through her, as next of kin to the intestate.” The court held that the law recognized no legal relation between a bastard and his mother any more than between him and his father; that being nullius films, he was as much without mother as without father. Our law is admitted to be otherwise, so far as the mother is concerned, and so far as rights of inheritance, lineally, are involved. The Supreme Court of Massachusetts, as we have shown, did not recognize the distinction now insisted on between lineal and collateral rights. They said that the mother could not inherit from the bastard, and therefore that the uncle and aunt could not. If the mother could inherit, then the uncle and aunt might and would inherit. As it is clear that in this state the mother would inherit, it would seem to follow as a necessary consequence that, she being dead, her sister would inherit, and so Eliza J. Cotton, the testatrix, would, in the case supposed, have been heir at law to the mother of these appellants. Now if there be no obstacle, and we discover none, to having an estate pass from an illegitimate child through its mother to her collateral relations, can there be any obstacle to the passing of an estate from collateral relations, through its mother, to an illegitimate child ? . If any discrimination is to be made, ought it not to be the reverse of that claimed ? Do not reason and justice loudly demand that the disability should fall on the erring parent rather than on the innocent child ? Culpa tenet auetores, is an old and just maxim. A fair construction of our statute of distributions leads us therefore to the conclusion that these appellants have an — 509 — interest, as heirs at law, in the estate of the testatrix. Nor does it seem to us that in reaching this result we are making a farther departure than we have already made from the English common law. The cases heretofore decided in this state involve principles which must control this case, and the decision we make is necessary to vindicate those principles and preserve the symmetry of our law. But the appellees quote to us a number of cases decided in states where, by statute, bastards are authorized to inherit from their mothers, and their mothers from them, and yet all right of inheritance among collaterals is denied. To these cases we deem it a sufficient answer in the first place to say, that in all those states the doctrine of the common law as to a bastard, that he was nullius films, was considered as established. The statute, being in derogation of the common law, was therefore to be construed strictly. The bastard was to inherit to the extent, and only to the extent, specified in the statute. If the statute gave him a morsel of bread, the common law gave him a stone if he asked to have that morsel of bread enlarged. In Connecticut, as we have seen again and again, this doctrine of the common law as to bastards never obtained, and so these decisions lack applicability. In the next place, an examination of these decisions will show that they are not all opposed to the rights now claimed by these appellants. The case of Cooley v. Dewey is, as we have seen, clearly an authority in favor of the appellants, if the right to inherit between the mother and an illegitimate child be established, as it is agreed to be, by our law. To the other cases quoted from Massachusetts, Curtis v. Hewins, 11 Metc., 294, Kent v. Baker, 2 Gray, 585, and Pratt v. Atwood, 108 Mass., 40, it is sufficient to say, that the statute of Massachusetts, which made the bastard heir of his mother, had this limiting clause, “ that he shall not be allowed to claim as representing his mother, any part of the estate of any of her kindred, either lineal or collateral.” This statute was passed after the decision of Cooley v. Dewey. The cases quoted from Vermont, Burlington v. Fosby, 6 — 510 — Verm., 83, and Bacon v. McBride, 32 Verm., 585, were decided under a statute of that state. That statute provided “ that illegitimate children shall he capable of inheriting and transmitting inheritances, on the part of the mother, in like manner as if they had been lawfully begotten.” It was held in Burlington v. Fosby, that one illegitimate child could inherit from another illegitimate child of the same mother. Subsequently it was held in Bacon v. McBride that an illegitimate child could not inherit from a legitimate child of the same mother. This is clearly inconsistent with the doctrine of Burlington v. Fosby, the soundness of which is questioned by the latter case. Burlington v. Fosby is entirely in harmony with the decisions made by this court, and whether that case, or the case of Bacon v. McBride, is sustained by the better reasoning, we will not now attempt to decide. Moore v. Moore, 35 Verm., 98, does not involve at all the question we are now considering, and only alludes to it by way of illustration. In the case of Stevenson’s Heirs v. Sullivant, 5 Wheat., 207, it was held that under the law of descents in Virginia, illegitimate children could not inherit from a legitimate child of their mother. This is quite inconsistent with Brown v. Dye, which we must consider law in tliisrstate. The case of Gibson et ux. v. Moulton, 2 Disney’s Rep., 158, was decided by the Superior Court of the city of Cincinnati, under a statute of Ohio similar in character to the statute of Vermont already quoted. It was held that this statute applied to inheritances in the ascending and descending lines only. This case however is directly contradictory to the case of Lewis v. Eutsler, 4 Ohio State Rep., 354, where it was held that illegitimate children could inherit from an older illegitimate child of their mother. Ranney, J., who gave the opinion of the court, says: “A man needs little more than his instincts to determine what the law ought to be in such a case.” This case speaks approvingly of Burlington v. Fosby, and .disapprovingly of Stevenson’s Heirs v. Sullivant. The high authority of Chancellor Kent is invoked to sustain the distinction between a bastard’s right to inherit lineally — 511 — and collaterally. Without instituting any comparison between men of renown in the profession, we may say that a former honored chief justice of this court, in his treatise on Descents, in commenting on the meaning of statutes which made illegitimate children capable of inheriting and transmitting inheritances on the part of the mother, in like manner as if they had been lawfully begotten, says: “ By the terms,{ on the part of the mother,’ we are to understand not only that the mother may inherit to the illegitimate children, and the illegitimate children to the mother, but that any relative on the part of the mother may inherit to the illegitimate child, and the illegitimate child may inherit to any relative on the part of the mother.” Reeve on Descents, 96. In giving this construction to our statute of distributions we simply carry out the construction long since adopted. That was, as we think, a correct interpretation of the will of the legislature. That the legislature for many intervening years has passed no act to amend or alter the law as decided, affords strong evidence that their will has not been misinterpreted. We prefer to stand super antiquas vias, rather than introduce a new policy. Arriving as we do, unhesitatingly, at the result, both by the common law of this state, and by our statute of distributions, that these appellants are heirs at law of the testatrix, we shall add little, and perhaps should add nothing, as to the character or tendency of the law. The removal of disabilities from illegitimates, so as to leave them capable of inheriting and transmitting inheritances on the part of the mother, collaterally, as well as lineally, like other persons, is sharply denounced. Facts however, we believe, fail to show either the immorality or impolicy of our law. We have been at some pains to examine the statistics on this subject, but have not been able to obtain returns from any of our sister states. We doubt if such returns are generally made. In ten years ending on the 31st day of December, 1874, there were born in this state 137,396 children, of which 1,118 (eighty one-hundredths of one per cent.) were illegitimate; as small a ratio, we venture to assert, as can any where be found. In — 512 — England, for three years prior to and including 1860, the ratio of illegitimate to legitimate births was over 6£ per cent.; and in Scotland, for ten years ending in 1870, it was 9.77 per cent. On the continent, so far as we have had access to the returns, the ratio is, generally, much larger. The number of illegitimates now in England and Wales alone is over one million. Surely it is not beneath the consideration of a wise statesmanship, whether it is just or prudent to cut off so large a portion of the population, who are charged with no crime, from all rights of inheritance, and isolate them almost absolutely from the body politic. In Guienne, near the beginning of the 14th century, a horde of banditti, organized and led by the illegitimate sons of noblemen, ravaged a portion of the country, and burned several towns, taking that mode of revenge for being denied their rights of inheritance. In presenting our views thus fully, we regret that we have been compelled to occupy so much space. We advise the Superior Court to render judgment for the appellants. In this opinion the other judges concurred.