Detrick v. Migatt

Skinner, J. The only question in this case, is whether the interest of Jerome McKee, the posthumous child of Jerome McKee, deceased, by his wife Isabella McKee, was divested by the decree against his mother and Samuel McKee, the brother of Jerome, deceased, and uncle of Jerome, the posthumous child. Our statute provides as follows : “ In all cases where any person shall die intestate, leaving real or personal estate in this State, and a child or children, commonly called posthumous children, shall be born unto him after his decease within the usual time prescribed by law, such child or children shall come in for their just proportion of said estate, in all respects as though he, she or they had been born in the lifetime of the intestate.” On the death of Jerome, the father, his interest in the land in question would descend to his wife Isabella and his brother Samuel, provided no child of Jerome, deceased, should thereafter be born. Such child, Jerome, was, within the ordinary period of gestation and before the execution of the decree, born to him. We do not question the binding force of judgments and decrees upon parties and privies; but Jei’ome, the posthumous child, was no party to the proceeding in which the decree was rendered, and, under our statute, does not take the estate under or through any one who was a party to it. There was, therefore, no relation of privity, so far as the estate in controversy is concerned, between Jerome, the posthumous child, and his mother and uncle who were parties to the proceeding and bound by the decree therein. The statute is plain, and places the posthumous child in the same position in regard to the intestate estate of the ancestor, as if he had been born in the lifetime of his ancestor. By force of the statute, the posthumous child takes directly from the parent, and with the same effect as though he were in being at the death of the parent; and the estate must consequently, during the interval between the death and birth, remain in abeyance. These conclusions are inevitable, giving to the statute, as it is our duty to do, the meaning its language plainly imports. And it necessarily results, that the posthumous child, taking the estate immediately from the parent, the same as if born in the lifetime of such parent, and not having been a party to the proceeding in which the decree was obtained, is not bound by it. If delays and occasional hardships arise, the remedy is with the law-making power alone. Decree reversed and cause remanded. Catón, C. J., dissenting. Decree reversed.