
    Ives v. McNicoll.
    
      Illegitimate children deemed legitimate, when — Section 417S', Revised Statutes.
    
    1. A child begotten by parents who were at the time not intermarried, and who could not then enter into a legal contract of marriage, may be legitimated under section 4175, Revised Statutes, by the subsequent legal marriage of the parents and the acknowledgment of the child by the father as his child.
    
      2. M, an unmarried man, had a child by R, a married woman; R afterwards became divorced from her husband, and thereafter M intermarried with her and acknowledged the child as his child. Held: That the child was thereby legitimated, and upon the death' of M, the child had all the rights of an heir of his body.
    (Decided January 17, 1899.)
    Error to the Circuit Court of Hamilton county.
    Margaret C. McNicoll commenced her action against Claribel Ives for the partition of certain real estate situate in the city of Cincinnati, and fully described in the second item of the will of Peter McNicoll, deceased. The cause was heard in the court of common pleas and there was a finding of facts made separate from the conclusions of law. The entire will of Peter McNicoll appears in the finding of facts, but only so much thereof is given here as relates to the controversy in hand. The court finds as follows:
    1. That Peter McNicoll, a citizen and resident of Hamilton county, Ohio, died in the year 1852, leaving his will which was duly admitted to probate in said county, the second, item of which is as ’follows: “I give and devise unto my son, Henry McNicoll, for the term of his natural life, and at his decease to go to the heirs of his body in fee, the following described real estate to-wit: (Here follows a description of the real estate sought to be partitioned.)
    2. That the testator’s son, Henry McNicoll, in the year 1855, was married to Mary Galbraith, and the defendant, Claribel Ives, is the only offspring of such marriage.
    In the year 1863, Mary Galbraith McNicoll, the mother of the defendant, was g’ranted a decree of divorce from Henry McNicoll by the court of common pleas of Hamilton county, Ohio.
    3. That Elizabeth Meyer, who is the mother of the plaintiff, Margaret C. McNicoll, was married in Newport, Campbell county, Kentucky, on the tenth day of December, 1867, to Samuel P. Reasoner, who was then a soldier in the United States Army, stationed at the Newport Barracks.
    That said Samuel P. Reasoner was discharged July 13, 1869, at Newport Barracks, Kentucky, but he again enlisted in the army of the United States on the twenty-seventh day of December, 1869, at Cincinnati, Ohio, for a period of five years, and served in Company H, of the 18th Regiment of the United States Infantry. On January 10, 1870, Samuel P. Reasoner went with his regiment to the state of South Carolina, where he continued in the service of the United States, in the army, until the twenty-seventh of December, 1874, when he was duly discharged at Columbia, South Carolina; and where he was again married on the seventh day of January, 1875. He then became domiciled in Columbia, South Carolina, where he has ever since continued to reside, and he never left the state of South Carolina or returned to the state of Kentucky after the tenth day of January, 1870.
    The court finds as a matter of fact, that there was absolutely non-access and non-intercourse between said .Samuel P. Reasoner and Elizabeth Reasoner, his wife, that is to say, they never saw each other, never met each other, and never lived or cohabited together, after the thirteenth day of July, 1869, up to and including- the. time of the present trial.
    4. Elizabeth Reasoner continued to reside in the state of Kentucky from July 13, 1869, until the year 1878, and was not absent from that state or the state of Ohio during that entire period of time.
    The testator’s son, Henry McNicolI, an unmarried man, who then and thereafter was a citizen, resided, and had his domicile in Cincinnati, Ohio, became intimate with Elizabeth Reasoner in Newport, Kentucky, in 1875, and thereafter, and was the father of the plaintiff, Margaret C. McNicolI, who was born in Newport, Kentucky, on the tenth day of September, 1876.
    5. About the year 1878, Elizabeth Reasoner removed with her daughter, the plaintiff, to Cincinnati, Ohio, and on the twenty-third day of April, A. D. 1889, she obtained a divorce from her husband, Samuel P. Reasoner, by the judgment of the common pleas court of Hamilton county, Ohio.
    6. On the twenty-seventh day of June, 1889, the said Henry McNicoll and ' Elizabeth Reasoner, mother of the plaintiff, were married in the city of Covington, Kenton county, Kentucky.
    They thereafter lived for one year in Cincinnati, Ohio, and then for two years in Dayton, in Campbell county, Kentucky, when they removed to Clermont county, Ohio, and there resided until the nineteenth day of December, 1893, when Henry McNicoll died. That said Henry McNicoll was a citizen of, resided and had his domicile in, the city of Cincinnati, Ohio, continuously from the year 1870 up to and including the period of one year after his said marriage on the twenty-seventh day of June, 1889.
    7. At all times from her birth, in September, 1876, until his death, in December, 1893, Henry McNicoll recognized and acknowledged the said Margaret C. McNicoll as his daughter, and after his marriage with her mother she resided in the family of Henry McNicoll, who provided for her education and support, and by and in his last will and testament, which was duly admitted to probate, he recognized her as his daughter and named her in his said will and testament as one of his heirs and devisees.
    8. The plaintiff, Margaret C. McNicoll, and Claribel Ives are the only children or descendants of Henry McNicoll who survived him.
    The property described in the petition is the property devised by Peter McNicoll in the second item.of his will to Henry McNicoll for life, and to the heirs of his body upon his death.
    
      9. During all the time mentioned, the following provision has been a part of the statute law of the state of Kentucky, Revised Statutes of Kentucky, section 1398:
    “If a man having had a child by a woman shal. afterwards marry her, such child, or its descendants if recognized by him before or after marriage, shall be deemed legitimate.”
    And the court of appeals of Kentucky, which is the court of last resort in that state, in the year 1887, decided in the case of Sams v. Sams, 85 Kentucky Reports, page 396, that the foregoing statute of Kentucky does not apply to a case where a man had children during the coverture of the man with another woman, and who might afterwards marry.
    Which said case and the statement of the law contained in said decision is now the law of the state of Kentucky.
    And the court makes the decision of the case of Sams v. Sams a part of this finding of fact, which by agreement of parties, in open court, may be considered as a part hereof as fully as though the same were herein set forth at large. And the said ease of Sams v. Sams, as it appears reported in said volume of said Kentucky Reports, may be referred to as constituting a part of this finding of facts.
    Upon the facts so found the court found as a conclusion of law that Margaret C. McNicoll is seized in fee as a tenant in common with Claribel Ives of the undivided one-half of the real estate in controversy, and ordered partition. To all of which Claribel Ives excepted and filed her petition in error in the circuit court, seeking to reverse the judgment of the court of common pleas. The circuit court affirmed the judgment, one judge dissenting. Thereupon Claribel Ives filed her petition in this court seeking to reverse the judgment of the courts below.
    
      XitPredge c& Wilby, for plaintiff in error.
    The statute of Ohio relied upon to confer legitimacy upon Margaret, which was in force at the date of Peter McNicoll’s will, is that of February 24, 1831 (29 Ohio L., 252-254), section 4175, Revised Statutes. Margaret was begotten and born in Kentucky, and at the time of her begetting and birth, her mother, Mrs. Reasoner, resided in Kentucky; and the subsequent marriage of Henry McNicoll to Mrs. Reasoner was in Kentucky.
    The statute of Kentucky providing for the legitimating of bastards is Stanton’s Revised Statutes, vol. 1, p. 424. The court of appeals of Kentucky, has construed this Kentucky statute in the case of Sams v. Sams, 85 Ky., 396.
    If the language of the Ohio statute be given the same construction which the Kentucky court of appeals gave to the Kentucky statute above quoted, Margaret was never legitimated.
    The Supreme Court of Ohio has twice considered the language of the closing paragraph of section 4175, namely, that as to legitimating children born after a marriage deemed null in law. Wright v. Lore, 12 Ohio St., 619; Morris v. Williams, 39 Ohio St., 554.
    The Supreme Court has never, so far as we have been able to discover, passed upon the meaning, or defined the application, of the part of the statute involved in the case at bar — that relating to the legitimating by subsequent marriage and acknowledgment.
    
      We know.of no statement by the Supreme Court of Ohio which would sustain the view that the sanctity of the marriage relation was, in Ohio, of any less legislative or judicial concern than in Kentucky. Duncan v. Duncan, 10 Ohio St., 181.
    To read the statute as claimed by our adversaries leads to absurd consequences, disturbing principles of policy and of the general law protecting the marriage relation. United States v. Kirby, 7 Wall., 482; Stone v. Elliott, 11 Ohio St., 252; Maxwell on Statutes, page 95; Munro v. Munro, 7 Cl. & Fin., *872.
    We believe the correct statement of the purpose of the legislature in passing this statute — a purpose which will aid the court in giving to its language right meaning, and which surely raises an ambiguity as to the scope of the words “a man” or a “woman” — may be found in Wallace v. Reppleye, 103 Ill., 229.
    The argument of opposing counsel falls down when tested by the simple rule that an argument is fallacious when it proves too much. Basing their claim that the literal meaning of the words, with all the consequences of comprehensiveness, must be enforced, without aid from interpretation in the light of common sense or public policy, opposing counsel claim, that the statute means just what it says, that where a man having by a woman a bastard shall afterward intermarry with such woman, that then the children are legitimated and that it admits of ‘no exception. Adams v. Adams, 154 Mass., 290; Greenbow v. James, 80 Va., 636.
    
      
      Robert Ramsey; Joseph W.- O'1 Sara and John Nichols, for defendant in error.
    The strong presumption of innocence ‘of crime, which the law always indulges, will require the court to assume that Samuel Reasoner was divorced from Elizabeth when he married a second time, in South Carolina, and when she afterward cohabited with Henry McNicoll; for otherwise he would have been guilty of the crime of bigamy, and she guilty of the crime of adultery. Carroll v. Carroll, 20 Tex., 741; King v. Twining, 2 B. & Ald., 386; 1 Bishop, Marriage and Divorce, section 953; 1 Greenleaf, Ev., section 35; Yates v. Houston, 3 Tex., 433; Albright v. Hawk et al., 52 Ohio St., 362.
    Certainly if presumptions may not be called to the aid of a judgment in such a ease, they may not be invoked for the purpose of defeating a judgment which the strict letter of the finding sustains. Leach v. Church, 10 Ohio St., 148; Jones v. Brown, 11 Ohio St., 601; Craig v. Bennett, 45 N. E., 792; Burnam v. St. Ry. Co., 78 Feb., 101; McKenna v. Whittaker, 69 N. W., 587.
    As to the construction of the statute the first general maxim of interpretation is, that it is not allowable to interpret what has no .need of interpretation. Vattel, Bk. II, Ch. XVII, section 263.
    There are several principles which courts apply when considering statutes of their own legislature, which have been clearly recognized by our Supreme Court. The words are to receive their ordinary and natural import, and the act should be held to embrace all cases coming fairly within its terms. The courts should not consider the question of public policy nor their own views in the matter, so long as the legislature has spoken on the subject; in other words they should avoid to the utmost all efforts at judicial legislation. This rule was early adopted in this state. Patton v. Sheriff, 2 Ohio, 396; Hurd v. Robinson, 11 Ohio St., 232; Woodberry v. Berry, 18 Ohio St., 456; Smith Bridge Co. v. Bowman, 41 Ohio St., 37; Deem v. Millikin, 6 C. C., 357; 3 Circ. Dec., 491; Schellenberger v. Ransom, 59 N. W. Rep., 935; Carpenter’s Estate, 170 Pa. St., 203; 39 Cent. Law Journal, 217, and 41 Cent. Law Journal, 377.
    It is reasonable to suppose that the legislature, in adopting this provision, did so in view of the construction which had been put upon it and with the intention that it should receive the same construction here. Favorite v. Booher’s Adm'r., 17 Ohio St., 555; Maltby v. Cooper, Mor., 80; Dwarris, 274, n. 4, and Sutherland, section 256.
    Margaret’s right to take is to be determined by the state of the law in Ohio, at the date of her father’s death, December 19, 1893. If she would have inherited from him under the statute of descents as the law interpreted it at that date, she comes within the descriptio personarum of the will. Templeman v. Steptoe, 1 Mumf., 339; Davis v. Rowe et al., 6 Rand., 355; Garland v. Harrison, etc., 8 Leigh, 368.
    Although this court has not had occasion to pass upon all of these aspects of the statute of descents, yet whenever a question has arisen, it has been determined exactly in accordance with the spirit of these decisions. Penn v. Cox, 16 Ohio, 32; Drake v. Rogers, 13 Ohio St., 21.
    The only question coming before this court as to the rights of illegitimate children, arose in the cases of Wright v. Lore, 12 Ohio St., 619, and 
      Morris v. Williams, 39 Ohio St., 554, in both of which this court reflected the spirit of the Virginia decisions, holding the issue of marriages void or voidable in law equally legitimate.
    The provisions of a statute ought to receive such reasonable construction, if the words and subject matter will admit of it, as that existing rights of the public or of individuals be not infringed. Moore's Lessee v. Vance, 1 Ohio, 12; Allen v. Little, 5 Ohio, 71; Brown v. Farran, 3 Ohio, 140.
    If there had never been a decision in this state, it would be now too late, at the end of the century, to give to this statute a judicial construction, importing into it any meaning which it does not clearly express. But such a course becomes still more obviously inappropriate, when we learn that the popular understanding of the first half century of the statute was confirmed by a reported decision. Craig's Admr. v. Fox, 16 Ohio, 569; Chestnut v. Shane's Lessee, 16 Ohio, 597; Fosdick v. Perrysburg, 14 Ohio St., 472; Dutoit v. Doyle, 16 Ohio St., 400; State v. Hueston, 44 Ohio St., 1; Commissioners v. Commissioners, 4 N. P., 349; 6 Dec., 533.
    Authorities on first clause of statute. As before stated there are three cases which have arisen under our statute and similar statutes, in which the facts were identical with those at bar, and the decisions clearly in our favor, sustaining our position and the views we take of the statute. We refer to Sutphin v. Cox, 1 W. L. M., 346; 2 Dec. Re., 90; Hawbecker v. Hawbeckcr, 43 Md., 516; Carroll v. Carroll, 20 Tex., 731; Scanlon v. Walshe, 31 Atl. Rep., 498; Schouler on Dom. Rel., section 226 (4th ed. ’89).
    And a somewhat similar ease involving facts much more shocking and immoral than any in the case at bar, is that of Brewer v. Blougher, 14 Peters, 178.
    
      Authorities on second clause of statute. “The issue of parents whose marriage is deemed null in law, shall nevertheless be legitimate.” Sneed v. Ewing, 5 Marshall, 460; Harris v. Harris, 85 Ky., 49; Leonard v. Braswell (Ky. 1896), 36 S. W., 684.
    Although all laws frown upon any violation of the marriap-e relation and seek to discountenance illicit intercourse, nevertheless the penalty for such wrong doing is never visited upon the unoffending children. No matter what punishment may be meted out to the guilty parents, the law looks with tenderness upon the unfortunate issue who are not responsible for their condition and makes them special objects of its favor. Bingham v. Miller, 17 O., 445; Kniffin v. Schaffer, 12 C. C., 753; 4 Circ. Dec., 62; Mathias Estate, 63 Fed., 523; Stones v. Keeling, 5 Call. (Va.), 143; Green v. Green, 126 Mo., 17; 13 A. & E. Ency. 227 and note; McKamie v. Baskerville, 7 S. W., 194 (Tenn.); Monson v. Palmer, 8 Allen, 556; Loring v. Thorndyke, 5 Allen, 257; Miller's Appeal, 52 Pa. St., 113; McGunningle v. McKee, 77 Pa. St., 81; Brewer v. Hamor, 83 Me., 251; Hicks v. Smith, 94 Geo., 809; Williams v. Williams, 11 Lea., 652.
   Burket, J.

While the court finds that Mr. Reasoner and Mrs. Reasoner were married at a certain time, and that she obtained a divorce from him at a certain time thereafter, there is no finding that he obtained a divorce from her ; and as in reviewing a judgment based upon a finding of facts, facts not found are regarded as],[not existing, this record must be construed as showing that Mrs. Reasoner was the wife of Mr. Reasoner at the time her daughter Margaret C. was begotten.

The court finds in effect that the child, Margaret C., is the off-spring of Henry McNicoll, an unmarried man, and Mrs. Reasoner, a married woman. The child is, therefore, what is known as an adulterine bastard, begotten of an adulterous connection between a man and woman who at that time could not make a valid contract of marriage. The legal obstacle to their marriage was afterward removed by divorce obtained by her, and they were shortly thereafter legally married, and the child at once became a member of his family, and was recognized and acknowledged by him as his child up to the time of his death, and was so treated in his last will and testament. The child now claims that she was and is thereby legitimated under our statute, and entitled to one-half of the property devised by Peter McNicoll to Henry McNicoll for the term of his natural life, and at his decease to go to the heirs of his body; while Claribel Ives, the only child of Henry McNicoll begotten in lawful wedlock, claims that an adulterine bastard cannot becomé legitimated under our statute by the subsequent marriage of the parents, and that, therefore Margaret C. McNicoll has no interest in the property, and is not entitled to have partition thereof.

By the civil law, the law of Scotland and the Code Napoleon, an adulterine bastard could not become legitimated by the subsequent legal marriage of the parents. All bastards who were the off-spring of parents who might legally marry at the time of begetting such bastards might become legitimated by the subsequent marriage of the parents followed by an acknowledgment of the child by the father as being his child. Under the common law of England there could be no legitimating of bastards, whether adulterine or otherwise.

This was the state of the law in Europe as to legitimating bastards when our first statute on the subject was passed, February 22, 1805o 3 O. L., 281. Our statute of that date is a transcript of the statute of Virginia on the same subject, passed in 1785, and entitled “An act concerning the course of descents. ” 12 Hennings Statutes at Large, 139. The bill was drafted and reported by a committee of -which Thomas Jefferson was one, after some years of deliberation, and was adopted by the Virginia legislature, omitting the exception of the civil law and the law of Scotland as to adulterine bastards, and disregarding the common law of England which prevented all bastards from being legitimated.

The statute of Virginia did not follow nor adopt any of the European laws as to bastards, but enacted a new statute on the subject to be construed and enforced by reference to the words used in the statute itself, untrammeled by the rules of the civil law. The courts of Virginia, both before and after the adoption of our statute, construed the statute of that state as having abrogated the exception of the civil law as to adulterine bastards. Stones v. Keeling, 5 Call, 143; Browne v. Turberville, 2 Call, 390; Templeman v. Steptoe, 1 Munf., 339; Davis v. Rowe, 6 Rand., 355; Garland v. Harrison, 8 Leigh, 368. When we adopted in this stale the Virginia statute as to bastards, we adopted with the statute the construction placed upon it by the courts of Virginia, and at each re-enactment of the statute we acquiesced in the constructions up to that time placed upon the statute by the courts of Virginia, no construction having in the meantime been placed upon the statute by our own courts, Favorite v. Booher's Admr., 17 Ohio St., 548.

As the exception as to adulterine bastards existed in the civil law and in the law of Scotland and was omitted from the Virginia statute, it must be presumed and held that such omission was intended, and that it was the purpose of the Virginia legislature to wipe out the exception as to adulterine bastards and to permit them to be legitimated the same as other bastards. When the legislature of this state adopted the Virginia statute in 1805 it was familiar not only with the Virginia statute, but also with the civil law, the law of Scotland, the common law of England and the Code Napoleon, and the omission of the exception as to adulterine bastards was not in ignorance of those laws, but was with the purpose of wiping out the exception, and doing justice to the innocent off-spring.

It is urged by counsel for plaintiff in error that while the words of our statute are broad enough to include adulterine bastards, the general assembly could not have intended to include them, because to do so would be against public policy, would disturb the general law protecting- the marriage relation, and lead to absurd consequences, and that married people should not be encouraged to forsake their marriage vows and cohabit with others in anticipation of a future marriage with a view of making their off-spring legitimate. And these considerations induced the decision .in the case of Sams v. Sams, 85 Ky., 396.

There can be no public policy in this state in conflict with a valid statute of the state. Public policy must always yield to a valid statute. The general assembly has the power to enact a law legitimating adulterine bastards, and there would be no absurdity in so doing. Neither would such a statute disturb the general Jaw protecting the marriage relation nor the law of crimes and misdemeanors, nor the law as to public morals. The subject of marriage and divorce, and the subject of adultery and fornication, and the subject of public morals are all carefully provided for and protected by separate chapters and sections of our statutes, and if the general assembly desired to prevent adulterine bastards from becoming legitimated, some provision to that effect would be found in some of the statutes. No such provision is found, but on the contrary, section 4175, Revised Statutes, has been enacted as follows:

“When a man has by a woman one or more children, and afterward intermarries with her, such issue, if acknowledged by him as his child or children, shall be deemed legitimate; and the issue of parents whose marriage is deemed null in law, shall nevertheless be legitimate.”

The force and effect of this section begin after the sections as to marriage, divorce, adultery, fornication and public morals have expended their force. After marriage and divorce, and after prosecutions for adultery and fornication, and to protect public morals, there are often adulterine bastards existing whose parents have thereafter become legally married, and have recognized and acknowledged them as their children, and the purpose of our statute is to legitimate such children, and to permit them to inherit from the father as well as the mother. Thereby justice is done to the innocent off-spring without in any manner impinging upon the laws as to the marriage relation or as to public morals. Those laws are allowed to have their full force and effect, and this statute as to bastards provides for a state of things e’xisting after the other statutes have been fully executed.,

Neither would such a statute encourage married persons to forsake their marriage vows and cohabit with others in anticipation of a future marriage with a view of thereby making their off-spring legitimate. The adulterous connection is not had with a view to subsequent marriage and legitimating children, but with a view to present pleasure; and the ardent hope and desire usually exists that no off-spring should result therefrom; and this section was enacted to enable parents when all impediments to a legal marriage should be removed, to intermarry and recognize and acknowledge their off-spring, and thereby in a measure atone for the sins of the past, and do justice to their innocent and unfortunate children. Viewed' in this light the statute is a righteous enactment. While to visit the sins of the parents upon the innocent and helpless off-spring would shock every sense of right and justice.

Again it is clear that after the birth of an adulterine bastard, all obstacles being removed, parents may legally marry and enjoy all the rights and privileges of marriage. They may inherit from each other under our statute, and to allow them to marry and enjoy all the fruits thereof and deprive their off-spring from inheriting from them would seem rank injustice; and it cannot be presumed, without clear words to that effect, that the legislature intended such an unjust result/ To so hold would be to reward the guilty parents, and punish the innocent off-springy

That our statute was intended for the benefit and protection of the innocent off-spring, and not for their punishment on account of sins committed by their parents, is shown by the eases of Wright v. Lore, 12 Ohio St., 619; Morris v. Williams, 39 Ohio St., 554.

If the purpose of our law is to punish the bastard children for the errors of the parents, to be consistent, the children should be prevented from in. heriting from the mother as well as the father after the marriage of the parents. It is said that the mother is always known, but the father is not. But when the father marries the mother and recognizes and acknowledges the children as his own, he thereby makes himself known, and thereafter there is no more reason for denying inheritance to them from him than from the mother.

Again the weight of authority in this country is in favor of the defendant in error. Carroll v. Carroll, 20 Texas, 731; Hawbecker v. Hawbecker, 43 Md., 516; Blythe v. Ayres, 96 Cala., 532; Schouler on Domestic Relations, 226; Sutphin v. Cox, 1 Western Law Monthly, 346; 2 Dec. Re., 90.

Opposed to these authorities is the case of Sams v. Sams, 85 Ky., 396. That case is cited by Pingrey on the Law of Real Property, section 1113; by Ballard on the Law of Real Property, section 344; Cope v. Cope, 137 U. S., 682-685; Latin Maxims and Phrases, by John Trainer, 450; Rapalje & Lawrence’s Law Dictionary, 118, the Law of Persons and Property by Dwight, 257. The only adjudged case is Sams v. Sams, supra, and all the citations and references are to that case, and most of them refer to the case in language indicating a doubt as to its soundness.

Again the language of the statute is too clear to require construction: ‘ ‘When a man has by a woman one or more children, and afterwards intermarries with her,” etc. A “man” means any man, anda “woman” means any woman. There are no exceptions. If he is a man and she is a woman, no matter what their previous lives may have been they come within the language of the statute, and when legally married and the former issue acknowledged by him as his child, such issue becomes thereby legitimated, even though it is an adulterine bastard. Take the case at bar. Mr. McNicoll was a man, Mrs. Reasoner was a woman. He had a child by her and afterwards intermarried with her and acknowledged the child as his child. The statute says that in such case the child shall be deemed legitimate. Nothing is said in the statute as to whether the parents could or could not legally marry at the time the child was begotten. The general assembly having attached no such condition, the courts can attach none, and to do so would be judicial legislation.

Judgment affirmed.  