# Smith v. Mitchell > Tennessee Supreme Court · May 3, 1947 · 185 Tenn. 57 URL: https://www.frixlaw.com/law-library/cases/9868459 ## Case - **Full name:** Smith Et Al. v. Mitchell Et Al. - **Court:** Tennessee Supreme Court - **Decided:** May 3, 1947 - **Citations:** 185 Tenn. 57; 21 Beeler 57; 202 S.W.2d 979; 1947 Tenn. LEXIS 299 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Neil - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9868459 ## Opinion text On PETITION TO REHEAR. The defendants in error have filed their petition to rehear complaining that the Court was in error in “holding that Robert Mitchell Abernathy and Al Stanley Abernathy, citizens of Tennessee, were legitimated by virtue of the marriage of their mother and putative father in Alabama.” It is earnestly insisted in the petition that the question of legitimacy in Alabama by virtue of said marriage “is a new point in this cause and is nowhere touched on in the pleadings or the briefs and the argument.” We think petitioners’ counsel are mistaken in the foregoing insistence, as shown by the following statement which appears on their original brief: “The question before the Court on this appeal is, did the marriage of Belle E. Abernathy to M. M. Abernathy, both resident citizens of Giles County, Tennessee, in Athens, Alabama, in 1945, legitimate their bastard children, appellants, both of whom were and are resident citizens of Giles County, Tennessee? *70 “Inasmuch as all of the assignments of error are comprehended within the foregoing query, it is not deemed proper to attempt to answer the various assignments of error seriatim.” The petitioners further contend that the opinion of the Court has no support in any case in Tennessee or in any. other jurisdiction. This is a matter about which able counsel are free to discuss and express disagreement with the Court, but we are not disposed to argue the point at length, being satisfied with the authorities cited in the original opinion. We are not unmindful of the fact that the courts are in disagreement upon the question before us, but modern authority has shown a decided trend away from the ancient rule of a common law that an illegitimate was nullius films, had no kinship with anybody, and could inherit from no one. There is now recognized in most jurisdictions what is denominated “the personal law” of the illegitimate which removes the stigma of bastardy cast upon him and which generally governs where no property rights are involved. This humane rule which clothes him with the dignity of legitimacy everywhere goes further and confers upon him the right of inheritance. Thus it is said in 11 Am. Jur., Conflict of Laws, section 22, p. 321: “If the child is legitimated by his personal law, he will generally be permitted to inherit property in another state, though he would not be regarded as legitimated by the law of the latter state, provided bastard children legitimated under the law of such latter state are capable-of inheriting.” In support of the foregoing text numerous cases are cited by the annotator. It is contended by petitioners that Pfeifer v. Wright, 10 Cir., 41 F. (2d) 464, 73 A. L. R. *71 932, cited in support of the above text, does not support our original opinion. We think it is in conformity with our holding in Cole v. Taylor, 132 Tenn. 92, 96 , 177 S. W. 61 . In Pfeiffer v. Wright, supra, the illegitimate was denied the right to inherit under the laws of Oklahoma, she having been legitimated by the father in the State of Kansas. While legitimate in Kansas, it was held that the legitimation did not operate to change the law of descent in Oklahoma, the situs of the property involved, the conditions ■ under which illegitimates could inherit property in Oklahoma not having been complied with. That is in substance the holding of this Court in Cole v. Taylor, supra, and we adhere to it in the instant case. In other words, we hold that a child born out of wedlock and legitimated by virtue of the law of a foreign state is permitted to inherit property in Tennessee only to the extent that one legitimated by the law of Tennessee may inherit under our laws. Among the numerous decisions cited in 73 A. L. R. at page 941, in which the “personal law of the Bastard” is held to confer the right to inherit, there appears the following general comment by the annotator (page 946): “But the great weight of authorities either hold or assume, for the purposes of the particular decision, that the question whether a bastard has acquired the status of legitimacy for the purpose of inheriting or sharing in the distribution of property in the state is to be determined not by the law of the situs of the property, nor by that of the domicil of the decedent as such, but by the personal law of the bastard. Aside from the question as to which state shall furnish that personal law, when there are two or more possibly applicable laws, the rule just stated is, expressly or by implication, supported by the *72 following cases:” citing cases from Connecticut, Louisiana, Maryland, Massachusetts, New Jersey, New York, Pennsylvania, Rhode Island, and Scotland. The petition to rehear is denied. All concur. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9868459. Public record. Not legal advice.