Ward v. Mathews , 122 Ala. 188 ( 1898 )

SHARPE, J.

— The statute relating specially to the descent and distribution of estates of illegitimates dying intestate and without descendants forms section 1460 of the present Code, and is as follows: “The mother or kindred of an illegitimate child on the part of the mother are, in default of children of such illegitimate child or their descendants, entitled to inherit his estate.”

In the case of Butler v. Elyton Land Company, 84 Ala. 384, this statute was under consideration of this court upon a controversy which involved the question here presented, as to the manner of descent and distribution of such estates as between the mother of a deceased illegitimate and her descendants. It was there held that this section standing alone was doubtful of meaning as to the persons who should take as well as to the quantity to be taken by each; and, therefore, that to ascertain such meaning reference should be had to the other statutes 1 hen existing regulating descent in ordinary cases, treating the subject and the system as one. By the ordinary rule then in force the brothers and sisters, or their descendants, were preferred to the mother; and the meaning of the particular statute was solved by applying to it the same rule, and thereby the brother of the deceased v as held entitled to the property to the exclusion of the mother. The correctness of that decision has not been questioned in any other case in this court. Since its rendition the ordinary rule of descent and distribution has been changed by the act of January 30, 1891, which as amended by the act of February 21, 1893, (Acts of 1892-93, p. 1055), is as follows: “That hereafter in this State the real and personal property of all persons dying intestate who have no husband or widow or children, or descendants of children, but who leave surviving a parent or parents, shall descend subject to the payment of debts and charges against the estate; first, to the parents in equal portions, and in case but one parent is surviving, then he or she shall be entitled to one-half of such estate, and the other half to the brothers and. sisters of the deceased, or their descendants, as now provided by law, and if there be no brothers and sisters and their descendants, then the whole estate shall go to the surviving parent.”

Such was the statute in force at the death of L. F. Henderson and which is still in force, being substantially embodied in article 1 of chapter 35 of the present Code. The statute relating expressly to estates of illegitimates remains unchanged and standing by itself is as uncertain as it Avas found to be in the trial of Butler v. Elyton Land Co., supra. We think the mode there adopted to determine its meaning, which was to apply to it the general rule provided by the statute for descent and distribution in ordinary cases, was the correct one. That rule being changed, the result of its application along with section 140>0 of the Code is also changed. As to the father the decedent Avas nnllius filius as at common law. But our statute changes that status and makes him the son of his mother. She is his only parent and his only collateral kindred are ex parte materna. As between them, applyng the general rule as uoav existing, and as it existed at the death of L. F. Henderson, the mother is entitled to take one-half the estate, real and personal, and of the remainder the other appellees who are brothers and sisters of the deceased are each entitled to one-fifth and the infant appellants are each entitled to one-tenth. It was so decreed in the probate court, and the decree will be here affirmed.

Note. — On a subsequent day of the term the following opinion was delivered:

PER CURIAM.

— This is an application by a guardian ad litem, who prosecuted an appeal to this eonrt in the name of the minors whom he was appointed in the court below tp represent, to vacate the judgment of this court adjudging him liable for the cost of the appeal. Section 1325 entitles the successful party in all civil actions to recover full costs against the unsuccessful party for which judgment must be rendered unless in cases otheraa ise directed by law. Section 168 provides that the next friend, general guardian or guardian ad litem may in the name of the minor take and prosecute an appeal from any final decree of the court of probate or from any judgment, order or decree of the judge of probate; but a guardian ad litem is relieved of giving any security for costs. This section had its origin in an enactment entitled an act to regulate appeals from probate courts, approved December 12, 1857, (Acts 1857-58, p. 241) ; and this provision of the enactment was carried into the Codes of 1867 and 1876 Avitliout change in verbiage in Avliich a guardian ad litem was required to give bond for that purpose. In codifying the Code of 1886, the only change made, Avas to relieve a guardian ad litem of this requirement. That he is a party to the appeal we entertain no doubt. Section 168 and'indeed the original act places him upon the same footing Avith a general guardian or next friend. No distinction is there made betAveen them except in the particular pointed out. And in the case of Perryman v. Burgster, 6 Port. 99, in Avhich this court held that a guardian ad litem is never chargeable AAith the costs accruing in the cause in the court beIoav, the reason assigned by the court Avas that a guardian ad litem under the practice proceedings in the English chancery courts was an involuntary party, and it Avould Avork a hardship upon him to enforce the payment of the costs against him, which he in noAvise voluntarily expressly or impliedly assumed. The doctrine recognizes him as a party. But that he is not liable for costs in the court below for the reasons assigned, is a matter of no consequence in the consideration of this question. He is a party under the statute authorizing him to sue out the appeal to this court, and Avhenever he avails himself of the authority there conferred he becomes as much a party to the appeal as the general guardian or next friend when the appeal is prosecuted by either of them. That this construction Avas the legislative one is made, manifest by section 469 of tbe Code, in which provision is made for his reimbursement for all costs of the appeal paid by him, in the discretion of the judge of probate, from the estate of the testator or intestate or minor. It Avas not until the Code of 1886, notAAdtlistanding he Avas required to giAre bond for the costs of the appeal, that this benefit AAras conferred upon him. To hold that he Avould be entitled to reimbursement for costs paid by him for which he Aims not legally liable, Avould be unreasonable. So the only reasonable construction of section 469, is that the legislature intended that he should be liable, justas executor, administrator, guardian or next friend, who are also entitled to the same benefit of reimbursement, are liable. Besides under this section no possible loss can come to him by the payment. It is the plain duty of the judge of probate to reimburse him for these costs from the estate of the testator, or intestate or minor, Avhere a bona fide appeal is prosecuted. In the case of Brown v. Williams, 87 Ala. 353, in Avhicli a contrary vieAY was held by this court, these statutes Avere not considered, and the opinion on the point under consideration was based upon the authority of Perryman v. Burgster, supra.

Perryman v. Burgster was declaratory of the common la ay rule, and its soundness is not here questioned. But as Ave have shoAvn, this rule has been changed by statute. The case of Brown v. Williams, not being in conformity to our vieAvs, must be overruled. It folhnvs that the application must he denied.