Lessee of Brewer v. Blougher
39 U.S. 178 (1840)

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U.S. Supreme Court

Lessee of Brewer v. Blougher, 39 U.S. 14 Pet. 178 178 (1840)

Lessee of Brewer v. Blougher

39 U.S. (14 Pet.) 178

Syllabus

Construction of the Act of the Legislature of Maryland passed December session, 1825, entitled, "An act relating to Illegitimate Children," which provides that "the illegitimate child or children of any female, and the issue of any such child or children," are declared capable in law

"to take and inherit both real and personal estate from their mother and from each other, and from the descendants of each other, as the case may be, in like manner as if born in lawful wedlock."

J.S., who had several children who were the children of an incestuous connection, conveyed a tract of land in the State of Maryland to one of those children. The grantee died intestate and without issue, seized in fee of the land. Two brothers and one sister of this incestuous intercourse survived him. Held that under the act of Maryland "Relating to Illegitimate Children," they inherited the estate of their deceased brother.

It is undoubtedly the duty of the court to ascertain the meaning of the legislature from the words used in the statute and the subject matter to which it relates, and to restrain its operation within narrower limits than its words import if the court is satisfied that the literal meaning of its language would extend to cases which the legislature never designed to include in it. According to the principles of the common law, an illegitimate child is filius nullius, and can have no father known to the law, and when the legislature speaks in general terms of children of that description, without making any exceptions, the court is bound to suppose they design to include the whole class.

An action of ejectment was instituted by the plaintiff in error, a citizen of Pennsylvania, in the Circuit Court of the United States for the District of Maryland, for the recovery of a tract of land situated in Allegany County, in the State of Maryland, called "Part of Grassy Cabin."

The following were the facts of the case, as agreed upon by the parties to the suit.

John Sloan, late of Allegany County, was twice married; by his first wife he had but one child, namely Mary Sloan, and by his second wife he had the following children, namely William Sloan, John Sloan, Elizabeth Sloan, Peggy Sloan, Sally Sloan, and Jane Sloan, and that the plaintiff's lessor is the husband of the said Elizabeth.

After the death of his second wife, John Sloan lived and cohabited with and married Mary Sloan, his daughter, by his first wife, and had by her the following children, viz.: William Sloan, John Joseph Sloan, Mary Sloan, Jesse Sloan, and David Sloan; and William Sloan is since dead.

The said John Sloan, the father, was many years ago seized and possessed of a tract of land lying in Allegany County, Maryland, called "Grassy Cabin," containing four hundred twenty-seven and one-fourth acres, to which tract he had an undisputed legal title.

The said John Sloan being so seized and possessed of the said tract of land, conveyed the same for a valuable consideration, by a deed of bargain and sale, duly executed, acknowledged, and recorded according to law, to John Joseph Sloan, and that the said

Page 39 U. S. 179

John Joseph Sloan became and was seized and possessed of the said tract of land, under and by virtue of the said deed.

The said John Sloan, the father, and Mary Sloan, his said daughter, by his first wife, both departed this life about the year 1826, and the said John Joseph Sloan died about the year 1832, seized and possessed of the said tract of land, intestate, and without issue, and unmarried, leaving Mary Sloan, Jesse Sloan, and David Sloan, his brothers and sister, children of the said Mary Sloan, by her said father as aforesaid, him surviving.

That the said Mary Sloan, Jesse Sloan, and David Sloan, being possessed of and claiming title to the said tract of land called "Grassy Cabin" by descent from the said John Joseph Sloan, conveyed the same by a deed of bargain and sale duly executed, acknowledged, and recorded according to law to Jacob Blougher and Daniel Blougher, the defendants.

After the death of the said John Joseph Sloan, the plaintiff, Henry Brewer, obtained out of the Western Shore Land Office a special warrant of escheat to resurvey and affect the said tract of land, called "Grassy Cabin," for an alleged want of the heirs of John Joseph Sloan, who died seized thereof in fee and intestate as aforesaid, and the patent was granted to the said Henry Brewer.

The patent was in legal form, and recited the escheat of the land "for want of heirs of John Joseph Sloan, who died seized of the premises."

The question for the decision of the circuit court upon these facts was whether, upon the death of the said John Joseph Sloan, according to the laws and statutes of Maryland, the said tract of land, "Grassy Cabin," did not pass by descent to the said Mary Sloan, Jesse Sloan, and David Sloan, his illegitimate sister and brothers as aforesaid. If the court shall be of opinion that the said tract of land did not so pass by descent, then judgment to be given with costs for the plaintiff. If the court shall be of opinion that the said tract of land did so pass by descent, then judgment to be given with costs, for the defendants. Either party to be at liberty to appeal or sue out a writ of error, it being admitted that the value of the land in controversy is at least twenty-five hundred dollars.

The circuit court gave a judgment for the defendants, and the plaintiff prosecuted this writ of error.

Page 39 U. S. 197

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