The opinion of the court was delivered by: TAMM
This is an action instituted by the trustees under the last will and testament of George Blethyn, deceased, to determine the heirs of Benjamin Blethyn, deceased. George Blethyn died in Wales on July 14, 1944. Benjamin Blethyn, a resident of the District of Columbia, departed this life, intestate, on March 19, 1939. Benjamin Blethyn died seized and possessed of real and personal property in the District of Columbia and during the administration of his estate, a portion of the realty was sold, his debts paid, and the funds now in his estate, being the remains of the proceeds of the sale of his real estate, and income from realty still owned by the estate, are legally real and not personal property. Broadwell v. Banks, C.C., 134 F. 470.
Included in the evidence introduced before the Court (Plaintiff's Exhibit F) is a marriage certificate establishing the marriage of William Blethyn and Mary Howells Blethyn, on August 23, 1856. Prior to her marriage to William Blethyn, Mary Howells bore a daughter, Phebe Howells, on February 13, 1854, as established by the birth certificate introduced by the plaintiff (P's Ex. K.) The name of the father of Phebe Howells is not shown on the birth certificate and there is no indication that William Blethyn was the father of Phebe Howells. Of the union of William Blethyn and Mary Howells Blethyn, five children were born. The death of three of these children preceded the death of George and Benjamin. Phebe Howells, who married Thomas Bidder, died on June 18, 1919, leaving to survive her, two sons, namely, William Benjamin Bidder and Thomas George Bidder, the defendants in the present action.
George Blethyn, brother of Benjamin Blethyn, as set forth above, died testate on July 14, 1944 and the trustees under his will, plaintiffs herein, are claiming the whole of the estate of Benjamin Blethyn.
Benjamin Blethyn was predeceased by both his parents and by two brothers, James and John, and his sister, Sarah, not any of these brothers and sister having left issue. Benjamin was allegedly the father, in Wales, of two children born out of wedlock to two different women. There was introduced in evidence a certificate of the birth of a son to one, Catherine Rees, on August 19, 1881, identified as the alleged son, John, of Benjamin Blethyn, it being noted that no father is designated in the birth certificate. There was also introduced in evidence a birth certificate of a daughter (now known as Lizzie Reynolds) to one, Elizabeth Davies, on September 29, 1881, which child, while allegedly the child of Benjamin Blethyn, has no father shown in the birth certificate. There was no evidence introduced before the Court that Benjamin had married either of these women and acknowledged these children as his own, both of which acts; i.e., marriage and acknowledgment, are necessary to legitimate children in this jurisdiction under the provisions of Section 106 of Title 18 of the District of Columbia Code. In the absence of any such evidence, these children, John Blethyn and Lizzie Reynolds, are not entitled to share in the estate of Benjamin Blethyn.
Benjamin Blethyn was survived by his brother, George, and by the two children of Phebe Bidder.
The plaintiffs in this action contend that George, the whole-blood brother of Benjamin is the only person legally competent under the District of Columbia statutes to take the estate of Benjamin Blethyn. The plaintiffs base their position upon their interpretation of Section 101 of Title 18, which provides in pertinent part as follows:
'On the death of any person seized of an estate in fee simple in lands, tenements, or hereditaments in the District of Columbia, and intestate thereof, the same shall descend in fee simple to such person's kindred in the following order, namely:
'First. To his child or children and their descendants, if any, equally.
'Second. If there be no child or descendant of a child, then equally to the father and mother of the intestate, or the whole to the sole surviving parent.
'Third. If there be no father or mother, then to the brothers and sisters of the intestate, and their descendants equally.' (Emphasis supplied.)
The plaintiff's further contend that since Phebe Howells Bidder was an illegitimate child, and her heirs are without legal status as heirs of Benjamin. They further rely on their interpretation of Section 103 of Title 18 of the Code, which provides:
'No right in the inheritance shall accrue to or vest in any person other than the children of the intestate and their descendants, unless such person is in being and capable in law to take as heir at the time of the intestate's death; * * * .'
The defendants, as the admitted legitimate children of Phebe Bidder, claim that they are entitled to a one-half interest in the estate of Benjamin, and base their claim upon the provisions of Section 104 of Title 18 of the Code relating ...