Russell v. Russell , 84 Ala. 48 ( 1887 )

STONE, C. J.

In 1870, Thomas S. Russell made a will, duly executed, containing tbe following clause: “I give to my children two-thirds of all my personal and real estate.” The remaining third be gave to his wife, Caroline Y. The will disposed of bis entire estate. At that time be bad one child, Thomas E. Russell, about six or seven years old, and Mrs. Russell was enciente. She did not carry tbe child to a living birth, and gave birth to no other child.

In 1885, Thomas S. Russell, testator, adopted Cyrus George, an orphan, and bad bis name changed to Cyrus George Russell. Tbe proceedings were in strict conformity to tbe statute. — Code of 1876, §2745; Code of 1886, § 2367. Tbe statutory provisions are: “Any person desirous to adopt a child, so as to make it capable of inheriting bis estate, real and personal, or to change the name of one previously adopted, may make a declaration in writing; * * * * which, being acknoweledged by the declarant before the probate judge of the county of his residence, * * * * has the effect to make such child capable of inheriting such estate of the declarant, and of changing its name to the one stated in the declaration.”

Thomas S. Bussell died in 1886. He had made no other will, nor had he changed the provisions of the will of 1870. The will was duly probated, and the question is, whether the adopted child, Cyrus George Bussell, takes under the will.

If the word “inheriting” had been left out of our statute, we think it would probably be our duty to hold that an adopted child would take under the term “children.” Adoption of children is “an act by which a person appoints as his heir the child of another.” — Bap. & Law. Law Die. “To receive and to treat as a son or daughter one who is the child of another.” — Worcester Die. “To take into one’s family as son and heir; to take and treat as a child, giving a title to the privileges and rights of a child.” — Webs. Die. The Imperial Dictionary (Eng.) employs substantially both the definitions of Worcester and Webster. What we have intimated above, is the conclusion very clearly and satisfactorily reached by the Supreme Court of Louisiana, in Vidal v. Cammagere, 13 La. An. 516; Schouler’s Dom. Rel. 314. The word “inheriting” is twice employed in our statute, and, it would seem, was placed there ex industria. The legislature did not deem it necessary to make any provision in case a will was made; for in such case, the testator usually directs in what manner his property shall go after his death. A will,.unless it contravenes some provision of positive law, or some principle of public policy, is the law of the succession.

In interpreting a will, we may and should take into the account the surrounding state of things, as they existed when the will was made. This is not confined to the exact ascertained status, then existing and known. If may, and often does, extend prospectively, so as to embrace both subjects and objects not then in being, but which the law presumes were had in contemplation. Hence it is, that when a will does not specify all the property it disposes of, but purports to dispose of testator’s entire estate, it carries under its devises and bequests, not alone the property owned at the time the will was made, but all acquired afterwards, and owned at testator’s death. Hence it is, that a testamentary gift by a parent to his or her children, without more specific designation, enures to the benefit, not only of children then in esse, but equally to those born afterwards. These canons of interpretation are founded on two presumptions: First, when a will has been made, the testator is presumed to have intended to dispose of his entire estate, unless the will shows a different intention. Second, when the will of a parent makes provision for children as a class, the law presumes all persons who fall within that class, when the will takes effect by the death of the testator, were had in contemplation, because, to all human appearance, all were equally the objects of his or her solicitude and bounty.-Schouler on Wills, §§ 466, 467, 469, 490, 529; 1 Redf. Wills, *386; 2 Id. *7; 2 Wil. Ex’rs. 1171; Hollingsworth v. Hollingsworth, 65 Ala. 321.

Does the word inheriting (verb, to inherit), change the interpretation we must give the statute P We think it does. Without the statute, Cyrus George Russell can claim nothing under the will. Though by adoption he is treated “as a child,” he is not the child of the testator, ahd, it is manifest, he was not in contemplation when the testator made his will. Com. v. Nancrede, 32 Penn. St. 389; Schafer v. Eneu, 54 Id. 304; Thompson v. McDonald, 2 Dev. & Bat. Eq. 463. The statute enables him to inherit from him by whom he was adopted, because the statute says so; not because he is the child of the decedent. He is not Mrs. Russell’s child, even by adoption. He has no right of inheritance from her. He is not the brother of Thomas E. Russell, and if the latter were to die, intestate, he would not inherit from him. All the rights he has are given him by the statute, and that confers nothing but a mere right of inheritance' — to share in the estate of Thomas S. Russell, left undisposed of by will.

The conclusion we have reached probably presents a great hardship; for there are circumstances tending to show that Thomas S. intended to place the child of his adoption on a level with his own child. He failed to so change his will, or to take other steps necessary to carry out such intention, if he had it. He likewise failed to take the requisite steps to revoke his will.' — Code of 1876, §§2282, 2296; Code of 1886, §§ 1953, 1968. Even a known wish or intention of the testator can avail nothing, if he failed to take the legal steps necessary to carry it into effect. — Sherrod v. Sherrod, 38 Ala. 537; Manigault v. Deas, 1 Bailey’s Eq. 302.

The Massachusetts statute is much more comprehensive than ours. It confers on the adopted child, not only the right o£ inheritance, but “all other legal consequences and incidents of the natural relation of parents and children, the same as if he had been born to them in lawful wedlock.” There is an exception, but it does not affect this case. Their decisions shed no light on the interpretation of our statute. Sewall v. Roberts, 115 Mass. 262; Burrage v. Briggs, 120 Mass. 103; Ross v. Ross, 129 Mass. 243.

The decree of the chancellor is reversed, and a decree here rendered, declaring that Cyrus George Bussell takes nothing under the will of Thomas S. Bussell.

Beversed and remanded.