Den ex dem Drake v. Drake, 15 N.C. 110, 4 Dev. 110 (1833)

Dec. 1833 · Supreme Court of North Carolina

15 N.C. 110, 4 Dev. 110

Den ex dem Hines Drake, et al. v. Henry Drake, et al.

Where the putative father of a bastard procured the passing of a private Act of Assembly, whereby the name of the latter was changed to that of the former, and he was declared “ forever hereafter to bo legitimated “ and made capable to possess inherit, and enjoy by descent, &c. any es- “ late real or personal, to all intents and purposes, as if he had been born “ in lawful wedlock” — It was held that as the bastard was not made Io gitimate to any particular person, the only effect of the act was to change Jiis name!.

Ejectment tried on the Fall Circuit of 18SQ, before Danier Judge, at Edgecombe.

By consent, a verdict was taken for the plaintiff subject to the opinion of his Honor on the following case:

William Drake being seised in fee of the premises in dispute* in February 182,7, duly made and published his last will and testament, and therein devised as follows J “ I give and bequeath to my beloved son Levi Drake, the “son of Eleanor Edwards, deceased,' ali my estate both “real and personal, to him and his heirs forever;” and died in the same year without altering or revoking it.— Levi Drake upon the death of the divisor entered upon the premises, and was seised thereof, and being so seised died in the year 1829.' without issue, and without brother or sister, or the issue of such except so far as is hereinafter mentioned. Levi Drake was the bastard child of Eleanor Edwards, and originally bore the name of Levi Edwards.

At the session of the General Assembly, begun in November, 1802, the following act was passed;

■Ail Act to alter tlie names of Hie persons flierein mentioned, and to legitimate them.

“Be it enacted by the General Assembly of the State of JYorih-Caro* “Una, and it is hereby enacted by the authority of the same, That from and “alter tlie passing of this act, the names of, &c. (mentioning a number.)— •“The name of Levi Edwards, of Edgecombe county, bo altered to that “of Levi Brake.

“And be it further enacted, That the aforesaid persons shall be called V and known liy the names as above altered, and by such names”respectiveJ “ ly shall be able to sue and be sued, plead and bo impleaded in any court of Law or Equity, and shall possess and enjoy, the same privileges as if they had borne the names as above altered from their nativity.

“ And be it farther enacted, That the person described in the first section of this act shall forever hereafter be legitimated and made capable to pos- “ sess, inherit, and enjoy, by descent or otherwise any, estate real or per"“sonal, to all intents and purposes as if they had been bom in lawful wed-41 lock.”

It was admitted that tlie name of Levi Edwards was inserted in that act at the instance of William Drake the. testator, but this admission was subject to an objection as to the competency of parol evidence in any way to affect its construction. After the passing of the act, Levi Edwards bore the name of Levi Brake, and was recognized by the testator William as his son. Before tlie passing of the above recited act, Eleanor Edwards, the mother of Levi Drake mentioned therein, had borne three other children, also born out of wedlock — of these one was the wife of one of the defendants — another was the wife of the defendant Brake and was dead, leaving issue, and £j(C jjjjj.jj was dead without issue. Eleanor Edwards died before her son Levi, leaving no other issue except those above mentioned and without having ever been married. She left surviving her, brothers and sisters who are still alive.

William Drake the testator, was never married. The lessors of the plaintiff were Isis brothers and sisters, and if Levi Drake had been born to William in wedlock, they would have been his nearest collateral relation on the part of his father.

If upon these facts his Honor should be of opinion that the lessors of the plaintiff were the heirs at law of Levi Drake, then the verdict was to stand and judgment to be entered accordingly, otherwise it ivas to be set aside and a nonsuit entered.

His Honor delivered his opinion as follows: “ Levi Edwards before the Legislature passed the private act of 1802, could not have inherited from any of the legitimate, brothers and sisters, which he might have had on his mother’s side. It was possible for his mother to have been lawfully married and to have had issue by that marriage. Neither could lie have inherited from any of the brothers or sisters of his mother, or from any of the more remote collateral relations of Ms mother, nor could the aforesaid collateral relations have inherited by any posibiliiy, from him.. The cases supposed are not within the act of Assembly of 1799. I think without any very forced construction, the private act of 1802, although badly penned, and the meaning imperfectly expressed, placed Levi Edwards (afterwards, Levi Drake) in the same situation of a child, who had been born in lawful wedlock, so far as relates to the blood relations of his mother. But I cannot discover from the act of 1802, that if Win. Drake had died intestate, that Levi Drake would have been bis heir at law; the Legislature must declare him such a person as could inherit the estate of Wm. Drake, by such words that the court could so reasonably understand or infer it from the private act of 1802 itself, viz: that ho was made capable of succeeding to the estate of Wm. Brake by descent. Proof aliunde, from the act of Assembly itself, cannot be admitted to show what the Legislature meant. If Levi Drake was the only child and heir at law of Wm. Brake, he would take this land by descent; for it is a rule of law founded upon feudal principles, I admit, but still it is a rule of law in this State, that when the same land and the same estate in it would come to the devisee by descent, if no will had been made, then the making of a will devising the land, will not make the taker a purchaser of the estate ;■ the law declares that he shall take by descent. The lessors of the plaintiff must recover by the strength of their own title, possession is sufficient for the defendants until the lessors can show a betteF title. If Levi Drake had have died seised and possessed of land, could Wm. Brake, if he had been alive, have succeeded to the land for life, as his, Levi’s father, by the rule or canon in the act of 1808? To have ascertained or decided this question, we would be referred to- the private act of 1802. In looking to that act, no reasonable inference could be drawn, that the Legislature intended to make Levi Drake the legitimate son and heir of Wm. Drake, therefore he would not have succeeded to the land of Levi Brake, had the latter died leaving Wm. Brake alive; neither can. the lessors of the plaintiffs, because they claim by descent, and claim through and by the blood of Wm. Brake. I say nothing of the maternal relations of Levi Drake, they are not before the court. At common law, he was filius nullius, and had no inheritable blood in him. By the act of 1799, he was, while illegitimate, capable of inheriting in a few express and enumerated cases ; by the private act of 1802, the lessors of the plaintiff alleged that he was changed from a bastard to a legitimate person, having all the heritable blood of a person born in lawful wedlock. The question then is, “heritable blood” to whom? Look into the act, and you cannot discover it is for or to Wm. Drake, and his blood relations ; this fact cannot be averred and proved by any thing but the act of the Legislature itself that does ]10† prove it I think; and the lessors uf the plaintiff who arc brothers and sisters of Wm. Drake deceased, are not the heirs at law of Levi Drake, they cannot recover. Let judgment of nonsuit be entored. It may be contended, that as the ascertainment of the fact that A is heir at law of B, depends upon such proof as satisfies the mind of a jury, so in this case the declarations of Wm. Drake, that Levi Drake was his son, is sufficient to constitute the latter sou and heir at law of him for ever and e converso, Wm. Drake the father, capable of taking a life estate in the land of Levi, had he died before William, without issue, or lawful brothers or sisters, or the issue of such, and also to have enabled the lessors of the plainiiff to support their title in the present case as heii's at law, taking by descent the lands which belong to Levi Drake. Here"is the great question, could Wm. .Drake, if he was alive, claiming the landed estate of Levi' be permitted to come into court, and prove dehors the act of 1802, that he was the father of the quandam bastard, Levi Edwards? I think he could not be heard to make such proof. And, as he could not, I think thelessors of the plaintiff who claim through him, cannot be permitted to do so ; andjf they could, the bare recognition of Levi by William, as his son, is not sufficient evidence of itself, to enable th'e lessors of the plaintiff to take the lands of Levi by descent.

Judgment being entered accordingly, the plaintiff appealed.

The Attorney General, Badger, Vevereux and Mor decaí, for the plaintiff.

Winston, contra.

Rueeist, Chief-Justice.

The title of the lessors of the plaintiff depends upon the effect of the private act of 1802, which was given in evidence, and is set forth in the record. By it the names of several persons in no way connected with each other are changed. Among them, that of Levi Edwards is altered to Levi Drake. In the last section it is enacted, that the persons described in the first section, shall be legitimated and made capable to possess, inherit and enjoy by descent or otherwise, any estate, real or personal, to all intents as if they had been born in lawful wedlock.

It is contended, that .Levi Brake was thereby legitimated as the son of William Brake, and became capable of taking lands by descent from him, and again of transmitting such lands by descent, as if he had been the heir of William by the general law ; in which case the lessors of the plaintiff, as his heirs on the part of the father, will succeed to the premises in dispute.

What may be the operation of such laws as that under consideration, as far as they contain a clear expression of the legislative will, it will be time enough to determine, when an occasion shall arise which will render the decision necessary. This case calls only for a construction of this act. The question here, is not whether the intention of the Legislature as ascertained, shall be effectual; but what was that intention ?

Whether a statute be a public or a private one, if the terms in which it is couched be so vague as to convey no definite meaning to those whose duty it is to execute it, cither ministerially or judicially, it is necessarily inoperative. The law must remain as it was, unless that which professes to change it, be itself intelligible. But between the rules of construction applicable to statutes of a public and private character^ there is a marked difference. It has been long established, and is founded on the soundest principles, and the legislative intention itself. A grievance which makes a new law of the former kind necessary, is a general one. The grievance, the old law, and the defect in it, are known to the court, in common with the Legislature and other citizens; and furnish the means of discovering the intention of the Le» gislature, notwithstanding a defective expression of it. When discovered, it is the duty of the court fo suppress the evil, by advancing the remedy. But with private acts, it is entirely different. They do not relate to matters of common concern ; and therefore do not receive that cautious deliberation of the members of. Assembly which is bestowed on those touching the general welfare. Whatever may be the views of the agents who introduce fiuc^ bills aild procure their passage, the Legislature gene-raiiy must wish their intention to be judged of by their words; and that the grantto one citizen,and the restriction upon another, should be limited to the persons, the subjects and the extent therein plainly set down. No latitude of construction is admissible; nonesuch would be tolerated by the Legislature itself. No discretion is entrusted to the judiciary, for there is nothing to aid or inform their discretion. The court is ignorant of the evil to be remedied, further than as it is declared in the act itself; and alike ignorant of other motives to the enactment— The defeat of the purposes of the act, would be as likely, as their promotion and more so, by a departure 'from the letter of the instructions. A court cannot tliere-fore carry a private act by construction, beyond its words, or a necessary implication from them. On the contrary, there is an implication even against the most general words, in favor of the right of those who arc not mentioned by name in the act. It is not intended that any others shall be concluded. Hence strangers are not ‘Sound by a private act, although there be no saving clause, (Barrington’s case, 8 Rep. 136, 2 Bl. Com. 345,) and it is regarded, both in its operation and construction, in the lightof conveyances derivingtheir effect from the common law.

A different rule prevails in con-private Catatesf the latter are ne yoncTdreh^vrordsj or a necessary them^wi'dare're-strained in favor not mentioned in them.

Where a pri-the6 assent particular person íoi^evídejicJ’ of" that assent may ho given. But evidence that a Person procured one to be passed, or subsequently rented to it, is not admissible tp extend its effect, as nwier® a ,tas* tard was legitima-ted without say-tQ evidence tliat Ills putative' father procured the pas-does not legiti-’ matc the hastaid as 0 1 '

In .the act before us William Drake is not named ; not even as the putative father of Levi, by way of recital.— Much less is Levi declared in the enacting clause, to be his heir. It is enacted, that he shall be legitimated ; hut as the son of whom, the act is silent, that he shall by capable of inheriting, hut from whom, does not appear. As far as this statute goes, it is as competent for him to claim an inheritance from any other person, as from William Brake. There is nothing from which the re-motes^ inference of such an intendment can be drawn, Nor can any evidence out of the act aid the plaintiff, This is the question of the construction of a statute— When the operation of a law depends upon the consent «, • of a person whose interests are affected by it; either by such consent being necessary constitutionally to its efficacy, or by being a condition precedent to its taking ef-feet, as collected from the act itself, it is necessarily competent to prove such assent. If the act prescribes the mode in which the parties to be bound by it, or to take ... benefit by it, shall signify tneir consent, the evidence must conform to the requisition of the statute. If it be ■ silent, then any other evidence adequate to establish the fact will suffice. But evidence that a person procured , the act to be passed, or gave *a subsequent assent to it, will not make it an enactment of what it is not in itself. __ ■» , , It William Drake wished Levi to be legitimated as his son, and to that end prevailed on the Legislature to pass this law; yet the law will not legitimate liim as his son, because to that extent the Legislature has not yielded to his wishes. It may be said, that such laws must then be always void, however express the enactments, upon the ground that the assent of the parties is necessary, if extrinsic evidence be not admissible or sufficient ; for the recital of it in the statute, as a fact would not bind them. I have no doubt that such a recital is not conclusive ; for a private act even of the English Parliament, with its plenary powers, partakes so much of the nature of a conveyance between parties, that it has been relieved against upon the ground of false suggestion and fraud. But I have as little doubt, that as to facts purporting to be stated in the act as occurring in, the Legislature, every'court must receive the • act as importing verity, to the same extent that the records of a court are evidence to the Legislature or another court, of the matters of fact transacted in the court, of which the record is the memorial. As to other recitals it wouhl seem but a decent respect, though they be not conclusive, to treat them as true, until the contrary appear. But unquestionably, no evidence as to the motives of the Legislature can be heard to give operation to, or take it from their acts ; nor can the construction of even a deed, much less a record, and still less a statute be controlled by the proof of collateral facts.

An act legitimating a bastard as to his putative father, does not render the colla-terals of the latter capable of succeeding to the former.

I conclude therefore, that this act does in no degrefc alter the relation between Levi and William Drake, and that if the latter had died intestate, the former could not have succeeded to his inheritances. But if he could. I do not perceive that the lessors of the plaintiff could have inherited from Levi. The act is altogether silent as to descents from him. It struck me at one time, that some meaning might be put on the act, by holding that it legitimated Levi as the son of his mother, being his known parent, and that it should be supported thus far, rather than make it altogether inoperative. Farther i'eflection compels me to yield even that position. Such a construction would invest Levi with the rights of a legitimate child under the act of 1799, (Rev. c. 522,. and might thus interfere essentially, witli the wishes of the mother in respect to her own property, and necessarily with the interests of her other children. Such an interference is not to be presumed. The rules of construction already alluded to, forbid the imputation of it to the Legislature, if their words are not so plain as to make it unavoidable. If the son had been thus expressly legitimated to one or both of his parents and declared capable of inheriting from them or either of them, the operation of the act, upon its construction, must stop there. The character of Levi, as to his capacity to take by descent from other persons, or to transmit by descent lands thus or otherwise acquired, is changed only so far as the act expresses it. In other respects and in reference to other persons, lie remained a bastard. It is impossible to suppose that the Legislature meant to alter the course of collateral successions, or to interfere with the limitations in wills and settlements. Such a supposition is perfectly incredible, when we refer to the public act of 1829, for the legitimation of bastard children. In that, the effect, and all the effects of legitimation, are plainly expressed and precisely limited. With respect to successions to property, the legitimative child is entitled to a distributive share of the personal estate, and to inherit the real estate of his putative father, and to transmit the .same iands in the course of descents, as if he had been born in wedlock. But those claimed from him are not within the act, except as to lands inherited from the father to whom he is legitimated. As to all other property, the rights of other persons are the same as if he had not been legitimated. Whilst the Legislature is thus careful in framing the provisions of a statute extending to the whole community, and limiting the effect of legitimation thus narrowly, it would be an outrage upon that body, to impute to them an intention by a private .act, couched in general and ambiguous words, to change the course of succession in a particular family, further than is declared explicitly, or to bind members of that family who are not named.

I entertain the opinion therefore, that the act of 1802, is in itself altogether inoperative, except so far as it altered the names of the persons mentioned in it. Levi Drake took as a purchaser under William’s will, and the lessors of the plaintiff are not his heirs.

Per Cuktam — JudgmeNt appirmbb.