Matter of Mericlo.

not permit the indulgence of sympathy for either party, howmuchsoever the courts may personally sympathize. I have hoped to find some law or principle justifying a holding that Libbie is entitled to half this property. Her grandfather, doubtless, so desired and intended, and it is with the greatest reluctance that I have come to a conclusion that she is not his heir. I have examined every authority cited and many more, and compared the statutes of Vermont, Massachusetts, Connecticut and Virginia, under which they were made, with our own statutes, and have become strengthened in my first conclusions, with regret. By our statutes (2 R. S. [6th ed.], 1135, sec. 19) it is provided: "Sec. 19. Children and rela tives who are illegitimate shall not be entitled to inherit under any of the provisions of this chapter."

The next section provides for the only exception to the above, and is the whole of chapter 547 of the Laws of 1855, entitled "An act allowing illegitimate children to inherit real and personal property in certain cases."

"SECTION 1. Illegitimate children, in default of lawful issue, may inherit real and personal property from their mother, as if legitimate; but nothing in this act shall affect any right or title in or to any real or personal property already vested in the lawful heirs of any person heretofore deceased." This act was passed April 18, 1855, and I can find but one decision. based upon it, and that was made by the surrogate of New York in June of that year, and merely holds the statute to be prospective and not retroactive (Ferrie agt. The Pub. Admr., 3 Bradf., 249).

In Miller agt. Miller (18 Hun, 507) the general term, in the third department, held that an "illegitimate" child, as used in this statute of descents, is one begotten and born out of wedlock, and the term is to receive its common-law signification.

In this case, had the mother of this illegitimate child survived her father, so as to become the owner of a vested estate, there would have been no difficulty. In that case,

Matter of Mericlo.

Libbie being her only child, would have inherited the real and personal from her mother, within the provisions of the law of 1855. If the statutes of our state provided, as in Vermont, that "bastards shall also be capable of inheriting and transmitting inheritance on the part of the mother, as if legally begotten of said mother," we could have held, as the court did in Town of Burlington agt. Frosby (6 Vt., 83), that one bastard could inherit from another bastard child of the same mother; or that an illegitimate child of a deceased daughter could inherit from the mother's father. The same remarks may be made with reference to the laws of Connecticut and Virginia, where it is held that illegitimates inherit through their mother, and similar provisions. But none of the decisions in those states aid us in the interpretation of our statute, for none of those states have the sweeping prohibition contained in section 19 (supra.) And in Connecticut and some other states it is held that they never even adopted the common law of England upon the subject. In Heath agt. White (5 Conn., 228) the court says: "It must be admitted that all rules of succession in estates are creatures of civil polity and juris positivi merely (2 Black. Com., 211)." "The laws of the neighboring states, which limit descents to 'the lawful issue' of the intestate, have no bearing on the subject of discussion. It is a conclusive answer to argument from this source, that our law does not restrain succession to the lawful issue." "I cannot admit any influence on my opinion from the common law of England, which has never been adopted here."

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But the above remarks do not apply to the case under discussion, for in this state we have, in our constitution, expressly adopted the common law of England (Art. 1, sec. 17, constitution).

The case of Ash agt. Way's Admrs. (2 Grattan, 203), cited by Libbie's counsel, does not apply to this case, as that turned entirely upon the statute of Virginia legitimizing children by VOL. LXIII

9

Matter of Mericlo.

the subsequent marriage of their parents, and even in that case the court was divided, voting three to two.

In Cooley agt. Dewry (4 Pick., 93) it was held in Massachusetts that the mother of a bastard does not inherit his estate, refusing to agree with Heath agt. White (supra), decided by a divided court.

It therefore seems that in Connecticut and Vermont illegitiinates may heir through their mother. This cannot be done in Massachusetts, and I am very well satisfied it is not the law in this state.

But the attorney for Libbie claims that her mother, as the daughter of Michael Mericlo, had an estate in expectancy in her father's real estate, which descended to Libbie from her mother, so that when the mother died Libbie became the owner of the expectant estate. In this I am satisfied he is mistaken. The statute defines "estates in expectancy" thus, "an estate in expectancy is when the right to the possession is postponed to a future period (2 R. S. [6th ed.], 1101, sec. 8). "Estates in expectancy are divided into -1, estates commencing at a future day denominated future estates, and 2, reversions" (2 R. S. [6th ed.], 1101, sec. 9).

Bouvier, in his law dictionary (vol. 1, 539), thus defines an estate in expectancy, "an estate giving a present or vested contingent right of future enjoyment, one in which the right of permanency of the profits is postponed to some future period" (Citing 1 Greenleaf's Cruise Dig., 701).

Thus if A. devise to his wife the use for life of his real estate and after her death the property to his heirs, or sons, or daughters, or to any other persons, such remaindermen have an estate in expectancy, and such estate is descendible, devisable and alienable (Moore agt. Little, 40 Barb., 488; Tracy agt. Ames, 4 Laws, 500).

Again, the statute provides: "No expectant estate can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent estate, nor by any destruetion of such precedent estate by disseizen, forfeiture, surrender,

Matter of Mericlo.

merger or otherwise" (2 R.,S. [6th ed.], 1103, sec. 32). Can it be doubted for a moment that the so-called "expectant estate" of the mother of Libbie could at any time have been defeated or barred by the alienation by Michael Mericlo of the land in question. Would not a sale of his estate on execution have defeated her expectation? This was not claimed on the argument.

Again, the statute provides, "expectant estates are descendible, devisable and alienable in the same manner as estates in possession" (2 R. S. [6th ed.], 1103, sec. 35). It has been expressly held (Jackson agt. Bradford, 4 Wend., 619) that the heir cannot convey by deed his expectations in the estate of his living ancestor. Until the death of the ancestor the child has no interest in his estate. The expectation of an estate is a very different thing from the expectant estate mentioned in the statute of descents (Tooley agt. Dibble, 2 Hill, 641; Lintner agt. Snyder, 15 Barb., 620-626 of opinion; Pelletreau agt. Jackson, 11 Wend., 120-123 of opinion; Jackson agt. Waldron, 13 Wend., 178).

Thus it will be seen that, at the death of the mother of Libbie, she had no estate in the real or personal property of Michael Mericlo, her father. She had nothing that descended to Libbie. Had Libbie been legitimate she would have inherited, through her mother, from her grandfather under the statutes of descents, but that is forbidden her in her pres ent condition. This is to be regretted, for it seems to punish a child for no fault of her own. But the courts do not make laws; they interpret them. And with all my desire to protect this young lady, I am unable to find any authority in law for so doing.

The affidavits show that the special guardian has expended the small sum realized on the sale of this piece of land in the joint support of these two children, under the order now sought to be modified. She has done it in good faith and should be protected, although the court may have erred in making the order which she has obeyed. I think the order

Burling agt. Gunther.

must be modified, as asked on this motion, with the proviso that the special guardian be protected in all she has done or expended under and in obedience to the order.

An order will be made accordingly.

N. Y. COMMON PLEAS.

WILSON BURLING, respondent, agt. C. GODFREY GUNTHER,

appellant.

Appeal-Power of appellate court to reverse, affirm or modify a judgment — Construction of such power.

In an action for broker's commissions, in procuring a loan of $35,000, tried by a jury in the marine court, there was a contention of fact upon the trial over the question of an original employment. The trial resulted in a verdict for $400 in plaintiff's favor. The defendant's motion for a new trial upon the minutes was denied, and an appeal taken from the order and judgment entered upon the verdict to the general term of the marine court, where the judgment was affirmed, upon the plaintiff stipulating to reduce the recovery from $400 to $175. The case was given to the jury under an absolute instruction to allow plaintiff $400 in case they found in his favor upon other questions: Held, that the general term of the marine court exceeded its authority by directing an affirmance should the plaintiff stipulate to reduce the recovery to $175. The statute limits the plaintiff's right to that amount, but the jury had power to award him less.

Neither the plaintiff's right, nor the defendant's liability, with reference to amount, has ever been passed upon by the jury, as they were misled by an erroneous instruction, and the general term, by endeavoring, instead of ordering a new trial, to adjudicate what the plaintiff was entitled to, exceeded their powers, the needed facts not having been found on the trial.

General Term, January, 1882.

Before BEACH and VAN BRUNT, JJ.

AT some date in or prior to August, 1878, the defendant employed Harnett, a real estate broker, to procure a loan of