Voorhees v. Sharp. HOWARD VOORHEES, appellant, υ. DAVID C. SHARP et al., administrators of Lucas Voorhees, deceased, respondents. [Filed July 22d, 1901.] An intestate left surviving him a widow but no children. He was also survived by brothers, sisters and the children of deceased brothers and sisters. Upon proceedings to distribute the surplusage of his estate in the hands of his administrators, it was made to appear to the orphans court that the intestate had had a daughter who had predeceased him, leaving one child born out of lawful wedlock.-Held, that such child was not entitled to be considered in the decree of distribution. On appeal from Hunterdon county orphans court. Mr. George H. Large, for the appellant. Mr. Harlem G. Chamberlin, for the respondents. MAGIE, ORDINARY. The appeal is from a decree of the orphans court for the distribution of the estate of Lucas Voorhees, deceased, in the hands of the administrators. The proofs before the orphans court disclosed that when Lucas Voorhees died he left a widow, but no children, surviving him. He was survived by brothers and sisters and by children of deceased brothers and sisters. It is conceded by counsel that the decree brought in question distributed the estate among the widow and surviving brothers and sisters and the children of deceased brothers and sisters of the intestate, in the precise manner prescribed by the provisions of paragraph 1 of section 169 of the act entitled "An act respecting orphans courts and relating to the powers and duties Voorhees v. Sharp. of the ordinary and the orphans courts and surrogates" [Revision of 1898], approved June 14th, 1898. The above section of said act was amended by an act approved March 22d, 1899, but was not altered in any of the respects brought in question by this appeal. It is admitted by counsel that the decree is unassailable unless a further fact, which was made to appear in the court below, indicates error therein. The fact relied on as indicating error in the decree is that Lucas Voorhees, the intestate, had had a female child, who had predeceased him leaving the appellant, who was her illegitimate child not born in lawful wedlock. The mother never married and had no other child. The argument is that under the provisions of paragraph 5 of section 169 above referred to, the appellant has been made a legal representative of his mother and therefore one to whom distribution should have been made under paragraph 1 of the same section. At common law a bastard is deemed of kin to nobody. 1 Bl. R. 459. Our statute of distributions has, from the earliest times, provided that the surplusage of the estate of an intestate shall, under certain circumstances, be distributed to his child or children. No one ever supposed or contended that this provision extended to a child born out of lawful wedlock. On the contrary, this court has held that the lawful issue of a bastard child, who had predeceased her father, was excluded from the distribution of the father's estate. Bussom v. Forsyth, 5 Stew. Eg. 277. The status of a bastard, as to the transmission of property to or from him, was fixed by the common law brought to this country by our ancestors, and administered here until the legislature passed acts intended to ameliorate the unfortunate condition of those who were born out of lawful wedlock. The act designed for that purpose was a supplement to the act which contained the existing provisions for the distribution of intestates' estates. It was approved March 22d, 1865. P. L. of 1865 p. 463. Its first section enacted the provisions now contained in paragraph 6 of section 169 of the Orphans Court act of 1 Voorhees v. Sharp. 1898. Its second section enacted the provisions now contained in paragraph 5 of said section. It is obvious that the present status of a bastard, as to the transmission of property to or from him, is to be discovered in the legislation above referred to. The courts can neither limit nor extend such legislation, but can only construe its terms and fix their applicability. Such was the view taken in the court of Massachusetts. Kent v. Barker, 2 Gray 535; Pratt v. Atwood, 108 Mass. 40. Under a statute of that state providing that every illegitimate child shall be considered as the heir of his mother, it was held that the lawful issue of an illegitimate child who had died before his mother, could not inherit the mother's estate. Custis v. Hewins, 11 Metc. 294. It is to be noted also that the discussion of the court in Bussom v. Forsyth, ubi supra, was made subsequent to the enactment of the act of 1865, above referred to. Turning to the provisions of paragraph 5, relied on by appellant, this observation at once occurs. Its operation is confined to the transmission of goods, chattels and personal estate of a mother to her illegitimate child when she dies without leaving a husband or lawful issue, or the issue of any. By its express terms the legislation is limited to the property of the mother and does not extend to property which, as in this case, never became the mother's. It cannot be considered as intended to change by implication the provisions of paragraph 1, which had been always construed in practice as excluding bastards from distribution because they were not children within the meaning of the act, or did not legally represent anyone. The result is that the decree appealed from must be affirmed, with costs. Equitable Life Assurance Society r. Chesley. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, appellant, 63 219 r64 349 υ. RUTH C. CHESLEY, administratrix of William P. Chesley, deceased, respondent. [Filed July 22d, 1901.] 1. When an administrator has neglected to make a final settlement of his account within one year after administration granted, a creditor of the estate barred by a decree of the orphans court, who has presented a petition to the orphans court praying relief under the provisions of section 80 of the act entitled "An act respecting the orphans court and relating to the powers and duties of the ordinary and the orphans courts and surrogates" [Revision of 1898] (P. L. of 1898 p. 715), may except to any matter in a final account, which, if the exceptions are sustained, will enhance the assets in the hands of the administrator from which it may obtain the relief prayed for. 2. If exceptions so presented are directed to payments which the administrator might lawfully make, they cannot be sustained in the absence of proof that the creditor had presented its claim under oath to the administrator, or proof that the administrator had knowledge of the claim and the intent of the creditor to insist on its payment out of the estate in the administrator's hands. On appeal from Hudson county orphans court. Messrs. Lewis, Besson & Stevens, for the appellant. Mr. Charles L. Corbin, for the respondent. MAGIE, ORDINARY. The order appealed from overruled exceptions by appellant to the final account of respondent, presented by her to the orphans court of Hudson county, by which court she had been appointed administratrix of her husband, William P. Chesley, deceased. The exceptions were directed to certain payments Equitable Life Assurance Society v. Chesley. made by the administratrix and claimed to discharge her for the amount so paid. The question presented by the appeal is whether the order overruling the exceptions was properly made. The particular items of the account excepted to were payments made by the executrix to the widow and heirs-at-law of the intestate. Upon the evidence sent up with the transcript, it appears that the payments excepted to were made under the following circumstances: The intestate died seized of real estate subject to a mortgage for $10,000. Having died intestate, the lands in question descended to his heirs-at-law, subject to the dower right of his widow. The heirs-at-law and the widow united in the payment of the mortgage upon said lands, and thereafter filed a claim, under oath with the administratrix, claiming to be reimbursed for their payment of the said mortgage, from the personal estate of the deceased. The payments excepted to were made by the administratrix in response to said claim. They substantially exhausted the estate in the hands of the administratrix. The first question presented, in my judgment, is whether the appellant had a status to except to the final account of the administratrix. The transcript exhibits a petition of the appellant presented to the orphans court, and asserting that it was a creditor of the intestate. But it is thereby admitted that its claim as a creditor was not presented under oath to the administratrix. The evidence before the orphans court disclosed by the transcript shows an order requiring creditors to present their claims to the administratrix within a specified time. As the appellant admits that it did not present any claim to the administratrix, it follows that it did not present a claim within the time limited by the order. The transcript further shows that after the expiration of the time limited by the order, a decree was made by the orphans court to bar creditors who had not presented their claims in the manner required by law. Ap'pellant is therefore barred. The question then is whether the appellant, having failed to present its claim in the manner required by law and having been barred by the decree, was entitled to intervene and object to the final account of the administratrix. |