Lee v. Shankle, 51 N.C. 313, 6 Jones 313 (1859)

June 1859 · Supreme Court of North Carolina

51 N.C. 313, 6 Jones 313

JOHN F. LEE, et al, v. ABRAHAM SHANKLE, et al.

A private act of the Legislature is in the nature of an assurance at common law, and must depend upon the consent of persons in esse whose property is to be affected by it.

A private act of the Legislature declaring a bastard to be legitimated, and to be the heir and next of kin of a particular person, by implication excludes the idea of his being the lawful heir or next of kin of any other person.

This was a petition for the reprobate of a will, hoard before Heath, J., at the last Term of Anson Superior Court.

The petition sets forth that the petitioners, John E. Lee, Elizabeth Kendall, wife of David Kendall, Luke M. Lee, Eicliard A. Lee, Mary F. Lee, and Pinckney Lee, are the children of George P. Lee, who was the son of John Lee, the father also of the testatrix, Winney Lee, and that their father was the brother of the said Winney; that the will of the said Winney was admitted to probate at the --term of the county court of Anson, and that they, being next of kin, and heirs at law, had no notice of the proceedings; and that George P. Lee died prior to the death of Winney Lee.

The defendants admit that the petitioners had no notice of the probate of the will in question, and insist, in their answer, that they had no right to such notice, because their father, George P. Lee, was illegitimate, having been bom out of wedlock, and that his children could have no interest in the estate of the decedent, Winney.

The petitioners admit the fact that George P. Lee was born out of wedlock and was illegitimate; but they insist that he was legitimated by a private act of the Legislature of North Carolina, passed at its session of 1828, which is as follows:

“ An act to alter the name of George Pinckney Coppedge, an illegitimate son of John Lee, of Anson county, and to legitimate him.”

“Be it enacted, c&c, That from and after the passage of this act, George Pinckney Coppedge, an illegitimate son of John Lee, of Anson county, shall be known and called by the name of George Pinckney Lee, and by that name may sue and be sued, plead and be impleaded, and receive and take property by descent or distribution.

•“ And be it further enacted, That the said George Pinckney Coppedge be, and he is hereby declared legitimate, and capable in law to take.and inherit property as heir of the aforesaid John Lee, in as full and ample a manner as if he had been born in lawful wedlock; any law to the contrary, notwithstanding-

There was no evidence at whose instance this private act was passed.

It was insisted on behalf of the petitioners, that this act not only made George P. Lee the heir and next of kin to his father, John Lee, but also to Winney Lee, who was the legitimate daughter of the said John Lee.

A motion is made to dismiss the petition on the ground that, whatever effect the private act may have had in making the father of the petitioners legitimate as to John Lee, it neither purports to make them legitimate, nor him so, as to any other person than the said John; that, therefore, the petitioners had no interest in the estate of Winney Lee, as they must claim through their father, G. P. Lee.

The Court was of opinion that the objection was well taken, and the petition was ordered to be dismissed. Erom which judgment, the petitioners appealed.

R. H. Battle, for the petitioners.

Ashe, for the defendants.

Battle, J.

This case comes directly within the principles decided by this Court in the cases of Drake v. Drake, 4 Dev. Rep. 110, and Perry v. Newsom, 1 Ired. Eq. Rep. 28, and must be governed by them. These principles are, that private acts of the Legislature are in the nature of assurances at the common law, and that, therefore, their operation is meant to depend on the consent of those persons who are in esse, and whose estates are the subjects of the acts. Hence, where no person is mentioned in an act of legitimation of a bastard as his father, and there is no declaration as to whom he shall be legitimate, the act will be entirely inoperative in giving him a capacity to take property by descent, or by succession ab intes-iato. But if he be declared to be the son of a particular person, lie may take from hirp, and from him only, as the heir or next of kin. Bpon the authority of these decisions, we should hold that George P. Lee, the father of the plaintiffs, might have taken property by descent or distribution, from his father, John Lee,’ under the first section of the private act in question. The second section gave him no greater capacity, but on the contrary, by declaring to whom he should be rendered legitimate and made an heir, it, by strong implication, excludes him from being a lawful heir to, or taking property, either real or personal, from any other person. The judgment of the Court below was, therefore, right, and must be affirmed.

Pee Curiam, Judgment affirmed.