1, Cherry v. Mitchell. with sec. 5, chap. 31, Gen. Stats., which says the bastard child shall be as much the heir of the mother as if born in lawful wedlock. 5. Under the provisions of sec. 4841, the property does not pass to the issue of the devisee by descent from either the testator or devisee, but directly and by virtue of the will, aided by sec. 4841 of the Statutes. OPINION OF THE COURT BY JUDGE HOBSON-AFFIRMING. By his will made June 28, 1881, A. A. Cherry, of Warren county, devised his estate to his daughter, Mary Angeline Cherry; stating in the will that he raised and provided for all his other children as best he could, and desired that what was left after paying his debts and funeral expenses to go to her. The devisee gave birth to a bastard child, the appellee, Effie Mitchell, in March, 1891, and a few days thereafter died. About two weeks later, on the 12th of April, 1891, the testator, A. A. Cherry, died, and the will above referred to was duly probated. On February 3, 1899, the appellee, by her statutory guardian, filed this suit to recover the testator's estate of his heirs at law and their vendee. Section 4841 of the Kentucky Statutes provides: "If a devisee or legatee dies before the testator, or is dead at the making of the will, leaving issue who survive the testator, such issue shall take the estate devised or bequeathed, as the devisee or legatee would have done if he had survived the testator, unless a different disposition thereof is made or required by the will." The only question in the case is whether a bastard child comes within the meaning of this provision. It is admitted that appellee, if a legitimate child, would have taken the estate devised to her mother; but it is insisted by the distinguished counsel for appellant that the word "issue," in this statute, does not include an illegitimate child. In support of this contention we Cherry v. Mitchell. are referred to section 463 of the Kentucky Statutes, which provides as follows: "The word 'issue' as applied to the descent of real estate, shall be construed to include all the lawful lineal descendants of the ancestor." The purpose of this provision seems to have been to broaden, not to limit, the word "issue." The words "lawful lineal descendants of the ancestor" were apparently used to designate all those persons who might lawfully inherit the estate. Section 1400 provides: "When a person dies intestate and without issue having real estate of inheritance, the gift of either of his parents, such parent, if living, shall inherit the whole of such estate." Section 1401 provides: "If an infant dies without issue, having the title to real estate, derived by gift, devise or descent from one of his parents, the whole shall descend to that parent and his or her kindred," etc. Section 1397, relating to bastards, is not the same as the General Statutes which were in force when this estate vested. Section 5, c. 31, General Statutes, provided: "Bastards shall be capa> ble of inheriting and transmitting an inheritance on the part of or to the mother." This provision has been the law of this State since the act of 1787. See 1 Morehead & Brown's St., p. 561. The settled legislative policy hav ing been for so many years to allow bastards to inherit from their mother, we think it clear that it was never intended by section 1400, quoted above, that if a woman died intestate, leaving a bastard child, and having real estate of inheritance the gift of either of her parents, such parent, if living, should take the estate in preference to the child. It is equally clear that if the mother of a bastard died in infancy, having title to real estate derived by gift, devise, or descent from one of her parents, the estate should descend to the bastard and not to her par Cherry v. Mitchell. ents. Any other construction would do violence to the clearly expressed legislative intent, running through substantially the entire history of the State, that bastards may inherit from their mothers. But we see no reason for giving the word "issue" in section 4841 a different meaning from that in sections 1400 and 1401. We think they all use the word in the same sense, and include any issue that by statute may inherit. The original statute in place of the word "issue" used the words "children living at the death of the testator who would have taken as heir by descent or as distributee." 3 St. Laws Ky., p. 400. In the revision the purpose seems not to have been so much to change the statute, as to substitute a shorter phrase to express the same idea. Section 2063, Kentucky Statutes, provides that, when a patent is issued or a deed made to a person who is dead, the heirs of the patentee or vendee shall take the title as though named in the patent or deed. Section 2064 provides that where one of a class to whom an estate is devised shall die before the testator, and others survive him, the share of the decedent shall go to his descendants, unless a different disposition is made by the devisor. We think all these provisions mean the same persons, whether designated as "heirs," "descendants," or "issue." Any other construction would destroy the harmony of the revision as a whole, and make exceptions for which no solid reason in justice can be perceived. We are therefore of the opinion that appellee took the estate devised to her mother by the testator, and the judgment of the court below being in accord with these views is affirmed. Knoxville Nursery Co. v. Commonwealth of Kentucky. CASE 2-INDICTMENT FOR FAILURE OF CORPORATION TO FILE STATE Knoxville Nursery Co. v. Commonwealth of Kentucky. APPEAL FROM CRITTENDEN CIRCUIT COURT. JUDGMENT OF CONVICTION IN LOWER COURT. AFFIRMED. SUFFICIENCY OF INDICTMENT IN DESIGNATION OF OFFENSE-EXCEP TIONS NOT NEGATIVED IN INDICTMENT-COMPETENCY OF EVIDENCE- Held: 1. As it is sufficient, in an indictment for a statutory offense for which there is no generally known name, to designate the offense by a brief general description in the language of the statute, an indictment under Ky. Stat., sec. 571, which accuses defendant “of the offense of carrying on business in this State without filing in the Secretary of State's office a statement giving location of its office or offices in this State, and the name of its agents upon whom process could be served," sufficiently designates the offense charged. 2. The averment that defendant "did unlawfully carry on its business of selling fruit trees and delivering them to various parties in Crittenden county" sufficiently negatives the idea that defendant was a foreign insurance company. 3. A certificate filed by defendant in the office of the Secretary of State, which was a declaration by defendant of its existence as a foreign corporation, though not the strongest possible evidence of that fact, was not for that reason secondary evidence, as it did not pre-suppose greater evidence, but was competent as primary evidence of an admission by defendant. 4. Defendant can not escape punishment by showing that it filed the required statement before delivering the goods it had sold, the execution of the contracts of sale being the carrying on of business. 5. There can be no reversal for the misconduct of counsel in argument, where the language complained of does not appear in the bill of exceptions, but is stated merely in the grounds for a new trial. Knoxville Nursery Co. v. Commonwealth of Kentucky. JAMES A. MOORE, JOHN A. MOORE AND A. C. MOORE FOR APPEL LANT. 1. Demurrer should have been sustained to the indictment, because the name of the offense is not given in the accusatory part of the indictment; and 2. Because the indictment fails to allege that the defendant company is not a foreign insurance company. Com. v. Smithers, 8 Ky. Law Rep., 612; Com. v. Bierman, 13 Bush, 348. 3. The court erred in permitting to be read to the jury the certificate of the Secretary of State of Kentucky as evidence that appellant was a corporation, doing business under the laws of the State of Tennessee. 4. The court erred in permitting the attorney for the Commonwealth against the objection of the defendant, to state in his argument to the jury that the defendant had been doing business in this State for ten years, and after it had been caught, it slipped up to Frankfort, and filed a statement with the Secretary of State, dating it back so as to cover the offense charged. CLIFTON J. PRATT, ATTORNEY-GENERAL FOR APPELLEE. 1. Where there is no generally known name for a statutory offense, an indictment, under the statute, in designating the offense, should give a brief general description in the language of the statute, which is done in this case. Gravel Road Co. v. Com., 14 Ky. Law Rep., 812. 2. The indictment accuses the defendant of carrying on business 'in this State, without filing in the office of the Secretary of State, a statement, giving location of its office in this State, and the name of its agents upon whom process could be served. This is sufficient. Sulzer v. Com., 4 Ky. Law Rep., 365; White v. Com., 9 Bush, 179. 3. A copy of any record, filed or lodged with the Secretary of State, is competent evidence. Kentucky Statutes, sec. 1627. 4. The proof showed the sale of fruit trees by the authorized agents of defendant long before the filing of the certificate with the Secretary of State; the fact that the trees were not delivered until after the filing of the certificate will not excuse the defendant. 5. There is no evidence in the record of the objectionable language complained of as having been used by the attorney for the Commonwealth. AUTHORITIES CITED. Com. v. Slaughter, 12 Ky. Law Rep., 893. Daviess Gravel Road Co. v. Com., 14 Ky. Law Rep., 812. |