gave the opinion at the January term, 1842.

A preliminary question has been made, whether the appeal be allowable, inasmuch as the administrator and two of the distributees have not united in the appeal. The law allows tó any party who may feel aggrieved, the right to appeal from any order, decision, decree or sentence of the probate court. From the nature of the answers of the two defendants who unite in the prayer of the petitioner, they are not injuriously affected by the decree. The cause as to them is at an end; the decree does not aggrieve them. The same may be said of the administrator, who is a mere trustee, and as such must stand indifferent as to how the decree goes, or as to who gets the money. As the record stands, this is virtually and really a contest between the petitioner and the appellants. We can, therefore, entertain no doubt that the appeal is allowable.

On the merits of the case, there can be no doubt. The answer of the appellants, by denying the heirship of Tilleth Porter, stated a fact, which is of course fatal to the claim urged in the petition. It denies the very ground and foundation of his right as stated in the petition. The demurrer admits the answer to be true. And yet the court not only disallowed the demurrer, but rendered a final decree in favor of the petitioner. This was certainly erroneous. And it was equally improper to make the decree without proof to support the facts on which it was predicated. It is then, as a general rule, that upon a pro confesso decree, the court can only set the cause for a final hearing, and make the decree final upon due and regular proof of the right of complainant to recover.

A re-argument having been awarded in this case, Mr. Justice Clayton delivered the opinion of the court at the present term:

This is a petition filed in the probate court of Franklin county, by the appellee, for a distributive portion of the estate of Nancy Porter, deceased, against the administrator of her first administrator, and her heirs at law. The defence set up is the illegitimacy of the petitioner; and the want of proper parties. There was no *111proof taken in the cause; five of the parties who are the present appellants deny the claim of the petitioner; two of the parties were willing to grant the petition, admitting the subsequent intermarriage of the ancestors, and their recognition of the petitioner. The administrator of the first administrator paid no attention to the cause, and the petition was taken for confessed against him, and a decree entered in favor of the petitioner.

The first enquiry is, whether there is not a want of proper parties, because there is no representative pf the estate of the decedent before the court. The statute under which this proceeding is had, enacts that “any person entitled to the distribution of an intestate’s estate, may petition the court of the proper county, setting forth his claim, whereupon it shall be the duty of the court to grant a rule upon the administrator to make the distribution agreeably to law.” H. & H. 406, sec. 70. From the terms of this act, it would seem that the administrator of the estate sought to be distributed is an indispensable party; and when plenary proceedings are had, it is equally important to have him before the court. The same rule obtains in a court of equity. In some cases it has been held sufficient under certain circumstances to make the administrator alone a party, though more generally all the distributees are requisite parties; but in every case where distribution is sought, the administrator or executor has been held a necessary party. 1 Paige, 270 ; 6 Rand. 448; 2 McCord’s Ch. Rep. 168; 1 Paige, 166 ; 4 Johns. Ch. Rep. 199. So far does this rule extend, that distributees cannot sue an executor de son tort, without having an administrator de bonis non as a party, because a recovery by the distributees would leave him still liable to the demand of the administrator de bonis non. Frazier v. Frazier’s Executors, 2 Leigh, 649. Hence it appears there were not proper parties before the court, to authorize the decree which was rendered; and for this reason the case must be reversed.

Upon the other point, also, the decree is erroneous. The simple question is, whether bastards are comprehended under the word children, in our statute of descents and distributions. At the time of the passage of that statute, the same words in the English statutes on the same subject had received a fixed and established construction. Even before the statutes of Charles II. it had been *112held that “those who were born from an illegal connection, were not numbered among children.” Co. Lit. 3, b. From the time of Elizabeth the word children in a will, where there were both legitimate and illegitimate children, had been held to mean the legitimate only. See Beachcroft v. Beachcroft, 1 Mad. Rep. 237; 1 Black. Com. 378-9. It was well known that under the English law illegitimates could not take property by descent derived either from the father or the mother; that they were of the blood of no one; could be heir to no one, and could not be the stock through which consanguinity could be traced. Blackstone as above.

With the English statute before it, and with a full knowlege of the construction it had received, our legislature re-enacted it, without manifesting the slightest intention to change the rule of coni struction so established. This is a strong reason for adhering to the rule. By the same statute a case is provided for in which a child born out of wedlock may be rendered legitimate; that is, upon the marriage of the parents and recognition of such issue. This was a change of the English law, and goes to prove that with this addition, they intended that law to remain unaltered.

This point came before the Supreme Court of the United States, upon the construction of a similar statute in Yirginia. The court says, “as bastards, they were incapable of inheriting the estate of their mother; the current of inheritable blood was stopt in its passage from and through the mother, so as to prevent the descent of her property and that of her ancestors, either to her own illegitimate children, or to their legitimate offspring.” Stevenson’s heirs v. Sullivant, 5 Whe. 207; 4 Con. Rep. 641. This seems also to accord with the prevailing exposition of similar statutes in the United States. Cooley v. Dewy, 4 Pick; McCormick v. Cantrell, 7 Yerger; Drake v. Drake, 4 Devereaux, 110; 4 Dess. 440; Little v. Lake, 8 Ohio, 289. In Connecticut, the contrary has been decided; Heath v. White, 5 Conn. 228; but this case is overborne by the others just cited. It is the policy of the law to sustain the institution of marriage, as the surest and safest ground-work on which society can rest, and to make that the only source from which inheritable blood can flow.

It is urged in argument, that Tilleth Porter was rendered legitimate by the marriage of his parents, and subsequent recognition. *113There is no proof of that fact in the record, nor any mention of it, except in the answer of two of the defendants. Their admission cannot affect the rights of their co-defendants; and it is unfortunate if the proof exists, that it was not made. The pro-confesso against Byrd, the administrator of the first administrator, can have no effect, because he does not represent the estate of Nancy Porter, nor does he appear to have any interest of any kind in the subject matter.

The decree will be reversed, and the petition dismissed.