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been up for construction more than once. The most elaborate effort in its exposition was in In the Matter of Clements, 78 Mo. 352, where Hough, C. J., for this court, put this construction thereon, to wit, that its peculiar language refers to the custody and control of the child adopted, and "as the legislature had no power to authorize one person, whether acting from motives of charity, benevolence or caprice, to transfer to himself at his own electing, the custody and control of the child of another," nothing in that section should be binding on the natural parents of the adopted child, without the consent of such natural parents, which consent might be evidenced by joining in the deed. This section, therefore, throws no light on one side or the other of this controversy except there may be some slight evidence found therein of the trend of the legislative mind toward binding no one to the event of adoption except the actual parties to the event.
As said heretofore, the exact question presented has not been adjudicated by an appellate court in this state, but by analogy certain postulates may be established, the trend of the judicial mind may be got at and a sound conclusion reached.
470 For instance, if one inherit a share in an estate which his deceased father would have inherited, he inherits not from the father but directly from the intestate: Barnum v. Barnum, 119 Mo. 63, 24 S. W. 780. Applying that principle here, if plaintiff is to inherit at all from William E. Lynn, it is not from her adoptive father, James Lynn, who died before William E., but she is to inherit directly from William. E. Lynn. This being so, her kinship to William E. Lynn is the only conduit through which her title may flow. The blood tie is the open sesame to unlock the treasure of inheritance. But here there is no kinship in the case-nothing but a dry contract with another. As to William E. Lynn, the event of adoption was res inter alios acta-plaintiff is an alien to the blood, and, therefore, it may well be argued, as defendants' counsel do, that by the statute of descents and distributions, she takes nothing, under the doctrine of Barnum v. Barnum, 119 Mo. 63, 24 S. W. 780.
Again, it was held in Clarkson v. Hatton, 143 Mo. 47, 65 Am. St. Rep. 635, 44 S. W. 761, 39 L. R. A. 748, that the phrase "bodily heirs" did not include adopted children. It was held further, showing the strictness of this court's construction in the matter in hand, that the words "children" and "heirs"
in certain sections of the statutes of uses and trusts, pertaining to fee tail estates do not include adopted children. And, further, that an adopted child remains the child of its natural parents, and inherits from those parents.
It was held in Reinders v. Koppelmann, 68 Mo. 482, 30 Am. Rep. 802, that the estate of an adopted child (on his death intestate) will go to his blood relations, and not to his relations by adoption. It's a poor rule-won't work both ways. In Reinders v. Koppelmann, 94 Mo. 338, 7 S. W. 288, it was held, in effect, that the phrase "nearest and lawful heirs of my said wife" did not include an adopted daughter of said wife. After considering the case in the light of the language of testator himself, Brace, J., arguendo, formulates the views of this court (which are not without 471 weight on the issue in the case at bar), as follows: "If, however, the testator had not hung out this light, by which his meaning may be easily read, it would seem that the very terms, 'nearest and lawful heirs,' would be sufficient to exclude the idea. of an adopted heir; the status or relation of an adopted heir is a lawful one, since the law sanctions and provides a method for its creation, but the relation is not the creature of the law, but of the deed of adoption; a child by adoption is, in a limited sense, made an heir not by the law, but by contract evidenced by deed; adopted heir or heir by adoption would be appropriately descriptive of such relation; contradistinguished from such an heir are those upon whom the law casts descent, who are constituted heirs by law; these are appropriately described as heirs at law or heirs by the law. This distinction would, of course, be of little value in construing the will of a layman, if it were not almost universally and unconsciously recognized in the affairs of life; and that in common parlance we find that the terms 'heirs at law' and 'lawful heirs' are used indiscriminately as synonymous and convertible terms, and whenever either is used, they are invariably referred to the heirs upon whom descent is cast by law, and not to an heir by adoption. The relation of an heir by adoption is an exceptional and unusual one, and does not come within the ordinary and usual meaning of the words 'lawful heirs,' and those words ought not to be held, ex vi termini, to include an adopted heir, but when the testator uses the further and qualifying word 'nearest,' it would seem that one who is simply and only an heir by deed, deriving all his rights from the deed of adoption executed
long after the death of the testator, and none against any person other than his adoptive parent, must, by the very terms of the will under which he claims, be held to be excluded."
Considering the history and statute of adoption, the force of the foregoing rulings, and the reasons underlying 472 the same, i. e., the philosophy of the law, we are persuaded to the conclusion that the tendency of judicial construction in Missouri is not toward, but away from, the theory so warmly urged upon us by plaintiff's learned counsel.
If we look elsewhere for persuasive authority, we find the exact point (and points involving similar contentions) uniformly held against plaintiff's theory. To this effect are Van Metre v. Sankey, 148 Ill. 536, 39 Am. St. Rep. 196, 36 N. E. 628, 23 L. R. A. 665; Keegan v. Geraghty, 101 Ill. 26; In re Sunderland Estate, 60 Iowa, 732, 13 N. W. 655; Moore v. Moore, 35 Vt. 98; Meader v. Archer, 65 N. H. 214, 23 Atl. 521; Phillips v. McConica, 59 Ohio St. 1, 69 Am. St. Rep. 753, 51 N. E. 445; Quigley v. Mitchell, 41 Ohio St. 375; Barnhizel v. Ferrell, 47 Ind. 335; Helms v. Elliott, 89 Tenn. 446, 14 S. W. 930, 10 L. R. A. 535; Van Derlyn v. Mack, 137 Mich. 146, 109 Am. St. Rep. 669, 100 N. W. 278; Morrison v. Sessions' Estate, 70 Mich. 297, 14 Am. St. Rep. 500, 38 N. W. 249; Wyeth v. Stone, 144 Mass. 441, 11 N. E. 729.
The doctrine to be gathered from the foregoing cases is announced to be, in effect, to deny the right of the adopted child to succeed to the estate of any member of the adopting family other than the adopting parent, and that such adopted child does not succeed to the estate of ancestors or collateral kin of the adopting parent, nor to the estate of children born to the adopting parent: 27 Am. & Eng. Ency. of Law, 2d ed., 334, 1 Cyc. 933.
Though plaintiff's learned counsel have industriously collated cases from other jurisdictions, yet we find on examination they have cited us to no case holding a doctrine contrary to the above. Those cases apparently squinting at a contrary view, as, for example, Stearns v. Allen, 183 Mass. 404, 97 Am. St. Rep. 441, 67 N. E. 349, take color from peculiar statutory provisions there under exposition. And the same may be justly said of the other cases relied on.
But, it is argued by plaintiff's learned counsel that such interpretation of the law puts too sour a complexion 473 on
it. If this be true, relief must be sought from the legislature and not from the judiciary.
It is finally argued that such interpretation puts an adopted child in a worse plight than a bastard-a bastard being allowed to inherit from his mother's brothers: Moore v. Moore, 169 Mo. 432, 69 S. W. 278, 58 L. R. A. 451; Revised Statutes of 1899, sec. 2916. If this argument were based on a correct premise, it ought not to control. But the premise is faulty. The bastard at common law was the child of nobody-nullius filius. He was a living example of the exceedingly old and right bitter adage (doubted, as unfair, even when in use): "The fathers have eaten sour grapes and the children's teeth are set on edge': Jer. xxxi: 30, 31. He could not inherit from the father-he was unknown. The law branded the mother figuratively (and sometimes, actually), with a scarlet letter-and, to interdict the sin, denied inheritable blood to the sinless child: 2 Kent's Commentaries, 212. But such is not the statutory law of modern times. By our law a bastard is allowed to inherit from his mother and (through her) from her blood kin, and she may inherit from her bastard child: Rev. Stats. 1899, sec. 2916. But in the case of an adopted child, how much more kindly does the law deal with him? In the first place, he may inherit from, and transmit inheritance to, his own blood kin, lineal as well as collateral. In the second place, by the event of adoption, he has ex contractu, the right of inheritance from his adoptive parent. And if the doctrine of Napton, J., in Reinders v. Koppelmann, 68 Mo. 482, 30 Am. Rep. 802, be sound, he may not only inherit from the adoptive parent, but the property thus inherited may pass away from the blood of the adoptive parent and go to the blood of the adopted child. The status of an adopted child in Missouri is thus in a sense made superior (in rights of inheritance) to any other child born in lawful wedlock-not to speak of those who have a bar sinister upon their escutcheon.
474 The case has been presented to us with such research and insistence by plaintiff's learned counsel that we have given it what care and diligence we can command. And, turn the matter as we may, and approach it from any side we may, we can come to but one conclusion, and that is: that under the statute of adoption and under the statute of descents and distribution, on the doctrine of this court enunciated in other cases, and on authority from other jurisdictions, as
well as upon the reason and natural justice of the thing, the plaintiff cannot recover.
Hence, the judgment below must be affirmed.
RIGHT OF ADOPTED CHILDREN TO INHERIT.
I. Status of Adopted Children as Heirs.
a. In General, 684.
b. Extraterritorial Force of Adoption, 685.
c. Retrospective Operation of Statutes, 685.
II. Inheritance by Child from Parents.
a. From Adopting Parents, 686.
b. From Natural Parents, 687.
c. From First and Second Adopting Parents, 687.
III. Inheritance in Twofold Capacity of Children and Grandchildren, 687.
IV. Inheritance from Kindred of Adopting Parent, 687.
V. Inheritance from Adopted Child, 688.
VI. Inheritance Through Adopted Child, 688.
I. Status of Adopted Children as Heirs.
a. In General. The legal adoption by one person of the children of another is a subject to which we have previously directed our attention in this series of reports: See the note to Van Matre v. Sankey, 39 Am. St. Rep. 210; Van Derlyn v. Mack, 109 Am. St. Rep. 674. Adoption was recognized by the law of Rome and of other ancient nations, as Justice Lamm points out in the principal case. It was known even to the American Indians: Non-she-po v. Wa-win-ta, 37 Or. 213, 82 Am. St. Rep. 749, 62 Pac. 15. At the common law of England, however, adoption and heirship by adoption were unknown. They are therefore dependent, in the several states of the Union, upon statutory enactments. It would seem that statutes providing for so humane and beneficent an institution as adoption would be welcomed by the courts and given full force and effect. But as a rule the courts have been inclined to maintain the same frigid attitude toward such statutes as they maintain against all legislative changes in the law. Some, though by no means all, of the courts have exacted a strict compliance with the statutes in order to effect a legal adoption at all, while the great majority of the courts have been disposed to minimize the rights of adopted children to take property by inheritance: See the note to Van Derlyn v. Mack, 109 Am. St. Rep. 674; Albring v. Ward, 137 Mich. 352, 100 Md. 609; Bowins v. English, 138 Mich. 178, 101 N. W. 204; Beaver v. Crump, 76 Miss. 34, 23 South. 432.
It has been decided that an adopted child is not within a conveyance to "bodily heirs': Balch v. Johnson, 106 Tenn. 249, 61 S. W. 289; and that where a testator bequeaths his property to his "lawful heirs," he does not intend to include an adopted child: Morrison