Taylor v. Jackson , 194 Miss. 441 ( 1943 )

DISSENTING OPINION. Section 1403 of the Code has no application here for among illegitimates there are no kindred of the whole blood, all such when kinship among illegitimates is recognized at all being, in the eyes of the law, kindred of the half-blood. They were specifically so designated in the first Mississippi statute which conferred the right to inherit property on illegitimates. This phrase stated a mere truism and was therefore superfluous and manifestly for that reason was eliminated from the later statutes. The phrases kindred "of the whole blood" and "of the half blood" are peculiar to the law of descent and distribution and originated in and their meaning became fixed at common law long before statutes, of which Section 1403 of the Code is a type, were enacted. At common law kindred of the whole blood are they that are "derived, not only from the same ancestor, but from the same couple of ancestors." 2 Blackstone's Commentaries, Star page 228. "The term `ancestor' means merely the person from whom the estate passes, and not a progenitor, as in popular acceptation." Bailey v. Bailey, 25 Mich. 185, at page 188. Mere animal blood kinship is, of course, determined by the law of nature but blood kinship when resorted to by human beings for determining rights given or regulated by man-made law must be determined by that law, one of the rules of which in the law of descent and distribution of property is that ancestry and all blood kinship must be traced through birth in or of lawful wedlock. At common law the status of an illegitimate child is that of one without kindred. 10 C.J.S., Bastards, sec. 23, p. 105, but that rule has been changed with us as to kinship with one's mother, but for obvious reasons, not as to kinship with one's father. Section 1408, Code of 1930. Such is the meaning of the words "kindred of the whole and half-blood" in Section 1403, for "words which have a clear and definite meaning at common law should be given that meaning when used in a statute, unless it is clear from the statute itself that they were used in a different sense." Whelan v. Johnston, 192 Miss. 673, 6 So. 2d 300, 303; Dantzler Lbr. Co. v. State, 97 Miss. 355, 53 So. 1; Daily v. Swope, 47 Miss. 367.

The decree of the court below should be reversed and a decree to which this opinion would lead should be rendered here.

Griffith, J., concurs in this opinion.