her son's estate.20 The statute is inapplicable to grandchildren. If an illegitimate child dies before his mother his children are not entitled to inherit her estate.21 The writing whereby a father acknowledges the paternity of an illegitimate child need not be in any particular form or made with any particular intent. It need not be made for the express purpose of acknowledging the paternity of the child. It may be sufficient though made in entire ignorance of the statute. The statute is remedial and should be construed liberally.22 The acknowledgment may be in the form of a letter written by the father and attested by a witness. If the letter is lost its contents may be proved by secondary evidence.23 It is essential that the written acknowledgment of paternity should be signed by the attesting witness. 24. The statute impliedly requires that the person acknowledging the paternity should in fact be the real father.2 25

95. Same-Conflict of laws-The law of the domicil of the person making the acknowledgment of paternity governs and not that of the domicil of the mother or child.26 Where a bastard is legitimated according to the law of the domicil of the father and is thereby entitled to inherit as a legitimate child under such law the legitimation will be recognized in other states and he will be entitled to inherit both realty and personalty therein, unless such legitimation is contrary to the public policy or laws of the state where the property is situated. The legality of the legitimation is governed by the law of the domicil of the father. The status of the child is also governed by that law. What the child shall inherit is determined by the law of the last domicil of the decedent in the case of personalty and by the lex rei sitæ in the case of realty. The same principles govern as in the case' of adoption. There are some cases which hold, contrary to the weight of authority, that the legitimation must be in accordance with the lex rei sitæ to entitle the child to inherit lands.27 If the acts constituting the acknowledgment are in themselves such as the statute prescribes, they confer the

20 Haraden v. Larabee, 113 Mass. 430. 21 Curtis v. Hewins, 11 Met. (Mass.) 294 (statute since changed). See contra, In re Cameron, 170 Mich. 578, 136 N. W. 451; Foster v. Lee, 172 Ala. 32, 55 So. 125; Ann. Cas. 1338.

22 Pederson v. Christofferson, 97 Minn. 491, 106 N. W. 958; Richmond v. Taylor, 151 Wis. 633, 139 N. W. 435.

23 Anderson v. Oleson, 143 Minn. 328, 173 N. W. 665.

24 Williams v. Reid, 130 Minn. 256, 153 N. W. 324, 593.

25 Williams v. Reid, 130 Minn, 256, 153 N. W. 324, 593.

26 Blythe v. Ayres, 96 Cal. 532, 31 Pac. 915; Moen v. Moen, 16 S. D. 210, 92 N. W. 13; Richmond v. Taylor, 151 Wis. 633, 139 N. W. 435; 22 A. & E. Ency. of Law (2 ed.) 1361; 7 C. J. 951.

27 Miller v. Miller, 91 N. Y. 315; Ross v. Ross, 129 Mass. 243; Moore v. Saxton, 90 Conn. 164, 96 Atl. 960; 3 A. & E. Ency. of Law (2 ed.) 897; 22 Id. 1360; 7 C. J. 958; 5 R. C. L. 922; Ann. Cas. 1917C, 537; 56 Am. Dec. 261; 65 L. R. A. 181 25 L. R. A. (N. S.) 1292. See Moen v. Moen, 16 S. D. 210, 92 N. W. 13; Hall v. Gabbert, 213 Ill. 208, 72 N. E. 806.

right to inherit in the state where real property is situated, without reference to the intent with which they were performed. 28

96. Inheritance from illegitimate children-Statute-If any illegitimate child dies intestate and without lawful issue, his estate shall descend to his mother, or, in case of her prior decease, to her heirs at law.29 This statute abolishes the common-law rule against a mother inheriting from her illegitimate child.30 By the common law a bastard is nullius filius. He can be the heir of no one, nor have heirs, excepting of his own body. He has no ancestors from whom any inheritable blood can be derived. The common law is in force here except as changed by statute. If an illegitimate child leaves no wife or issue and no relatives except a brother and sister of his mother and children of her deceased brothers, his estate goes to the uncle and aunt to the exclusion of cousins.32 The statute does not apply to the distribution of an estate of a person who is not an illegitimate child but one of the descendants of an illegitimate child.33

31

97. Murderer cannot inherit from his victim-Statute-No person who feloniously takes or causes or procures another so to take the life of another shall inherit from such person or receive any interest in the estate of the decedent as surviving spouse, or take by devise or legacy from him any portion of his estate, and no beneficiary of any policy of insurance, or certificate of membership issued by any benevolent association or organization, payable upon the death or disability of any person, who in like manner takes or causes or procures to be taken the life upon which such policy or certificate is issued, or who causes or procures a disability of such person, shall take the proceeds of such policy or certificate; but in every instance mentioned in this act, all benefits that would accrue to any such person upon the death or disability of the person whose life is thus taken or who is thus disabled, shall become subject to distribution among the other heirs of such deceased person according to the law of descent and distribution in this state, in case of death, and in case of disability the benefits thereunder shall be paid to the disabled person. Provided, however, that an insurance company shall be discharged of all liability under a policy issued by it upon payment of the proceeds in accordance with the terms thereof, unless before such payment the company shall have knowledge that such beneficiary has taken or procured to be taken the life upon which such policy or certificate is issued, or that such beneficiary has caused or pro

28 Moen v. Moen, 16 S. D. 210, 92 N. W. 13.

29 G. S. 1913, § 7241.

80 Cooley v. Dewey, 4 Pick, (Mass.) 93; 27 A. & E. Ency. of Law (2 ed.) 332; 5 Cyc. 643; 7 C. J. 964.

31 Sanford v. Marsh, 180 Mass. 210, 62

N. E. 268; 27 A. & E. Ency. of Law (2 ed.) 327; 5 Cyc. 642; 7 C. J. 964; Woerner Am. Law of Adm. (2 ed.) § 75.

32 Parkman v. McCarthy, 149 Mass. 502, 21 N. E. 760.

33 Sanford v. Marsh, 180 Mass. 210, 62 N. E. 268.

34

cured a disability of the person upon whose life such policy or certificate is issued. A statute similar to ours has been held constitutional.35 98. Real estate in general-Posthumous children-Statute-When any person dies seized of any lands, tenements, or hereditaments, or any right thereto, or entitled to any interest therein, in fee simple or for the life of another, not having lawfully devised the same, they shall descend as hereinafter provided. And for all the purposes of this chapter a posthumous child shall be considered as living at the death of its parent. The statute merely lays down general rules of inheritance. It does not define how the status is to be created which gives the right to inherit. It does not define a husband, wife, parent or child.37 The statutes of descent are not limited to legal titles. An equitable title to land descends in the same manner as a legal title.38 Posthumous children inherit as if they had been living at the death of the parent.39

36

DESCENT OF HOMESTEAD

99. Statute-The homestead of such decedent shall descend, free from any testamentary or other disposition thereof to which the surviving spouse, if there be one, shall not have consented in writing, and exempt from all debts which were not valid charges thereon at the time of such death, as follows:

1. If there be no surviving child, nor lawful issue of any deceased child, to the surviving spouse, if any.

2. If there be both a spouse and children, or issue of deceased children, surviving, then to such spouse for the term of his or her natural life, and remainder to such children and the issue of deceased children by right of representation.

3. In all other cases such homestead may be disposed of by decedent's last will. If not so disposed of, it shall descend the same as his other real estate, but exempt from his debts if inherited by his surviving children or the issue of children deceased.4°

100. Descent to surviving spouse-If there are no children, or lawful issue of a deceased child, the surviving spouse succeeds to the estate of the decedent in the homestead and takes an absolute estate in fee simple if such was the estate of the decedent. The estate of a sur

34 Laws 1917, c. 353. See Wellner v. Eckstein, 105 Minn. 444, 117 N. W. 830; Gollnik v. Mengel, 112 Minn. 349, 128 N. W. 292; 24 Harv. L. Rev. 227; 27 Id. 280; 28 Id. 426; 30 Id. 622; 15 Col. L. Rev. 260: 5 Minn. L. Rev. 76.

35 Hamblin v. Marchant, 103 Kan. 508, 175 Pac. 678. See 6 A. L. R. 1408; 33 Harv. L. Rev. 475.

se G. S. 1913, § 7236.

37 Ross v. Ross, 129 Mass. 243. 38 Doran v. Kennedy, 122 Minn. 1, 141 N. W. 851.

39 Haydon v. Normandin, 55 Mont. 539, 179 Pac. 460; 27 A. & E. Ency. of Law (2 ed.) 316; 14 Cyc. 39; Woerner, Am. Law of Adm. (2 ed.) § 74.

40 G. S. 1913, § 7237.

41 Wilson v. Proctor, 28 Minn. 13, 8 N. W. 830; Tracy v. Tracy, 79 Minn. 267.

43

46

viving spouse in a homestead in case there are children or issue of deceased children is an absolute, unconditional estate for life.42 It is not qualified by or subject to a distinct or independent right of occupancy by the children. The surviving spouse has the sole right to the use, enjoyment and disposition of the homestead during life, without regard to the children. The surviving spouse holds the homestead by the distinct tenure conferred by the statute. It is a freehold estate.15 The homestead rights of a widow are limited to the land which her husband had actually devoted to homestead purposes and was occupying as such at the time of his death. The right of a surviving spouse and children to the homestead is no new right or estate. They have no general right of selection out of the whole body of the decedent's property. Their right is simply a transmission to them, or continuance in them, of the same right previously vested in the decedent and his family at the time of his death. The rights of the surviving spouse do not depend on a formal selection of the homestead. These rights vest and become absolute at the death of the deceased spouse. The statutory provisions for setting it apart merely prescribe the procedure for segregating it from the remainder of the estate, and the representative is not entitled to the possession of it though it has not been so set apart. The right of a surviving wife to a homestead is subject to a mortgage thereon for the purchase price though she did not join in the mortgage. The right of a surviving spouse to a homestead may be controlled by an antenuptial agreement.50 A surviving spouse cannot be allowed to waive a claim to the homestead fixed by law and take a part thereof to the injury of other parties interested in the distribution of the estate.51 The words "child" and "children" in the statute

48

49

47

82 N. W. 635; Fraser v. Farmer's & Mechanic's Savings Bank, 89 Minn. 482, 485, 95 N. W. 307. See Rosbach v. Weidenbach, 95 Minn. 343, 104 N. W. 137.

42 Holbrook v. Wightman, 31 Minn. 168, 17 N. W. 280; McCarthy v. Van Der Mey, 42 Minn. 189, 44 N. W. 53; Gowan v. Fountain, 50 Minn. 264, 52 N. W. 862; Nordlund v. Dahlgren, 130 Minn. 462, 153 N. W. 876; Rux v. Adam, 143 Minn. 35, 172 N. W. 912.

43 McCarthy v. Van Der Mey, 42 Minn. 189, 44 N. W. 53. See Lohlker v. Lohlker, 112 Minn. 273, 127 N. W. 1122 (devise of homestead to wife with provision that certain children should have the right to occupy it with her "until they shall have homes of their own"-will construed-evidence held not to show any abandonment of their rights by the children).

44 Eaton v. Robbins, 29 Minn. 327, 13 N. W. 143.

45 Hamilton v. Detroit, 85 Minn. 83, 89, 88 N. W. 419.

46 King v. McCarthy, 54 Minn. 190, 55 N. W. 960.

47 Wilson v. Proctor, 28 Minn. 13, 8 N. W. 830.

48 Wilson v. Proctor, 28 Minn. 13, 8 N. W. 830; Nordlund v. Dahlgren, 130 Minn. 462, 153 N. W. 876; Rux v. Adam, 143 Minn. 35, 172 N. W. 912. See § 808. 49 G. S. 1913, § 6961; Jones v. Tainter, 15 Minn. 512 (423).

50 Appleby v. Appleby, 100 Minn. 408, 429, 111 N. W. 305. See Dunnell, Minn. Digest and Supplements, § 4285.

51 Mintzer v. St. Paul Trust Co., 45 Minn. 323, 47 N. W. 973. See Nordlund v. Dahlgren, 130 Minn. 462, 153 N. W. 876.

53

are not limited to those of the marriage existing at the time of the death of the decedent, but include children by a former marriage.52 They include adopted children but not stepchildren or illegitimate children of a male decedent. They include illegitimate children of a female decedent. Where the surviving spouse is tenant for life of the homestead of the deceased spouse and also administrator of her estate, he cannot charge the estate with taxes paid by him upon the homestead nor with the value of improvements placed thereon by him.5 The right of a surviving spouse and children to inherit a homestead may be cut off by an election of the surviving spouse to take under the will of the decedent. If a homestead has been lost by removal and failure to file the statutory notice it does not descend to the surviving spouse as a homestead.56

55

101. Assent of spouse to testamentary disposition-The interest of a surviving spouse in a homestead cannot be divested by the testamentary or other disposition thereof by the owner to which such survivor did not consent in writing.57 The statutory consent in writing may be executed, at least if there are children, after the death of the testator.58 The word "surviving" in the statute refers to the time of the death of the testator and not to the time of the execution of the will. The statute has no application where a spouse was living at the time of the execution of the will but died before the testator.59 A will disposed of the homestead of the testator and made no provision for his wife. She never consented in writing to such disposition. She never elected to take under the will or otherwise and died after the testator and before the probate of the will. As there was no provision for her in the will she was not put to an election. Held, that the children had a right to insist that the homestead should descend under the statute unaffected by the will and that they were not estopped from attacking the validity of the will.00

102. Descent to children-Children by a former marriage stand on the same footing as children of the marriage existing at the death of the decedent. The children have no independent right to occupy the homestead during the life of the surviving parent.2 The rights of the children may be cut off absolutely by an election of the surviving spouse

52 Rosbach v. Weidenbach, 95 Minn. 343, 346, 104 N. W. 137.

53 See §§ 88, 92, 94.

54 Nordlund v. Dahlgren, 130 Minn. 462, 153 N. W. 876. See § 729.

55 See § 502.

56 Baillif v. Gerhard, 40 Minn. 172, 41 N. W. 1059.

57 G. S. 1913, § 7237; Eaton v. Robbins, 29 Minn. 327, 13 N. W. 143; Holbrook v. Wightman, 31 Minn. 168, 17 N.

W. 280; Hawkinson v. Oleson, 140 Minn. 298, 168 N. W. 13. See § 99.

58 Radl v. Radl, 72 Minn. 81, 75 N. W. 111.

59 Penstock v. Wentworth, 75 Minn. 2, 77 N. W. 420.

60 Hawkinson v. Oleson, 140 Minn. 298, 168 N. W. 13.

61 Rosbach v. Weidenbach, 95 Minn. 343, 104 N. W. 137.

62 McCarthy v. Van Der Mey, 42 Minn. 189, 44 N. W. 53.