McLean v. McAllum , 131 Miss. 234 ( 1922 )

Ethridge, J.,

delivered the opinion of the court.

On the 29th day of August, 1911, E. M. McAllum, Willie McAllum and Levie McAllum, the last two being minors, filed an ex parte petition in the chancery court, which petition reads as follows:

“Ex- parte E. M. McAllum, Willie McAllum, and Levie McAllum.

“To the Honorable Jas..F. McCool, Chancellor of the Sixth Chancery Court District of the State of Mississippi :

“And now comes E. M. McAllum, a resident citizen of the county of Kemper, and state of Mississippi; also comes Willie McAllum, a minor nineteen years of age, and Levie McAllum, a minor sixteen years of age, who are joined in this petition by their next friend, E. M. McAllum, and would most respectfully show to the court the following, to-wit:

“That petitioners Willie and Levie McAllum are minor children Avho are now living with the said E. M. McAllum, and have so lived for several years.

“Petitioners Avould further show that the said E. M. Mc-Allum has taken care of and educated the said minors, and has become greatly attached to them; and further that the said Willie and Levie McAllum have no legal parents now living, so far as known to petitioners. Petitioners would further shoAV that the said E. M. McAllum is an unmarried man of mature years, and desires to adopt as his own children the said Willie and Levie McAllum.

“Petitioners Avould further show ’ that the said E. M. McAllum is desirous of doing all in his poAver towards educating said children and giving them all the advantages that his means will afford; that it is the petitioner’s wish that said children may become his legal heirs, inheriting whatever property that the said E. M. McAllum may own at his death.

“Your petitioners Willie and Levie McAllum Avould further state that they have full knowledge and have consented to skid adoption, and join in the prayer of the said E. M. McAllum that the court Avill pass a decree allowing them to be adopted into the family of the said McAllum, and in duty bound will ever pray, etc.

“[Signed] E. M. McAllum.

“Willie McAllum.

“Levie McAllum/’

On the same day a decree was entered by the chancery court sustaining the prayer of the petition, which said decree is in the following words:

“Ex parte E. M. McAllum et al.

“This day came on for hearing the petition of E. M. McAllum, Willie McAllum, and Levie McAllum, praying the court to allow the said E. M. McAllum to adopt the said Willie and Levie McAllum as his own children; and, it appearing to the court that it is proper and right that the said E. M. McAllum should adopt said children, it is therefore ordered, adjudged and decreed that the said Willie and Levie McAllum shall be adopted as the legal children and heirs of the said E. M. McAllum, with full power to inherit his property as if they were born his children in lawful wedlock.

“Done in open court at De Kalb, Miss., this the 29th day of August, • 1911.

“[Signed] James F. McCool, Chancellor.”

The appellees filed this bill in 1921, setting forth the above proceedings and also certain allegations of agreement between E. M. McAllum and Willie and Levie Mc-Allum antedating the filing of the said petition and the decree of adoption above set out, in which bill it is alleged that the appellee Willie McAllum had been placed with one W. H. McLean when he was seven years old bv his mother and that he had remained with McLean until he was about fifteen years old, when he was induced by E. M. McAllum to move to Me Album's place, and that the first few months that he lived with McAllum he worked with McAllum as a laborer for wages. It is also alleged that the mother of these two minors had abandoned the appellee Levie McAllum when she was about five years of age and that she had been placed by her mother with a Mrs. Alexander, a sister of E. M. McAllum, and remained with her for some months, and that Mrs. Alexander placed her with E. M. McAllum, who placed her in the home of Mrs. Sinclair, where she remained until she was about thirteen years of age, when she was taken to the home of E. M. McAllum under an agreement by said McAllum with the said minor children (appellee Willie McAllum being then sixteen years of age) that, if they would live with him, do his bidding, and be subject to his control as though they were his natural children, he would adopt them as his children and care for them as though they were members of his family; that they entered into the service of the said Mc-Allum under the agreement that they would become his adopted children and he their adopted father, and that he would take appropriate proceedings to have them legally adopted; that they remained in this relation for some time, that is, until Willie McAllum was about nineteen years of age,- and Levie McAllum about sixteen years of age, when they told said E. M. McAllum that if he did not take legal steps to carry out the agreement they would leave him; that thereupon said E. M. McAllum hied the petition above set out, in which said minors joined as petitioners; that they continued to live with said E. M. McAllum as his children, subject in all respects to his orders and wishes, and that they labored for him, and by means of their labor he accumulated a part of his estate, but that he would not send them to school except for a few months in the year to the public school; that he sent Willie McAllum for a few months each year to the A. & M. College, but that said Willie McAllum never got beyond the preparatory department in such college; that he sent Levie McAllum to the Women’s College at Columbus, Miss., for a period, but that she never got beyond the preparatory department therein.

It is further averred that after each of the petitioners reached the age of twenty-one years and had the legal right to shape their own course in life, ^McAllum turned them away from- his premises because they would not continue in his service without being paid for their labor; that he assaulted Willie McAllum with a gun, and forbade him to ever return to his premises; that they left said E. M. Mc-Allum under said circumstances after each had arrived at twenty-one years of age.

It is further alleged that McAllum thereafter made a will in which he willed to the appellees one dollar each, and willed his other property to the appellants. The will is made an exhibit to the bill, and bears date of May 31, 1917. E. M. McAllum died in 1921, on April 30th, and said will was probated after his death, and the appellant Putnam McLean administered on said estate with the will annexed; the executor named in the will having refused to qualify.

The bill was. filed in July, 1921, and was demurred to by the appellees on many grounds which we will not set forth herein.

It is the contention of the complainants that the adoption proceedings gave them the right to inherit whatever said E. M. McAllum owned at his death, and that the will made by him conflicts with their contractual rights under the adoption proceedings and as to that is Aroid. There are a number of contentions by the appellants in the demurrer and on appeal here, which we will not set out in view of the conclusion Avhich Ave have reached.

It will be noted from the petition above set out that the petitioner E. M. McAllum represented to the court that the minors had been living with him for some years, and that he had become greatly attached to them, and that they have no legal parents uoav living, so far as known to the petitioner; that petitioner is an unmarried man of mature years, and desires to adopt as his own children said Willie and Levie McAllum; that he is desirous of doing all in his power to educate the said minors and to give them the advantages that his means Avill afford; that it is petitioner’s wish that said children may become his legal heirs, inheriting whatever property said E. M. McAllum may own at his death. The minors, Avho are petitioners, represented that they had full knowledge and had consented to the said adoption, and joined in the prayer of the said E. M. McAllum that the court will decree that they be adopted into the family of the said E. M. McAllum. The decree, granting the petition ordered, adjudged and decreed :

“That the said Willie and Levie McAllum shall he adopted as the legal children and heirs of the said E. M. Mc-Allum, with full power to inherit his property as if they were born his children in lawful wedlock.”

In our opinion the rights of the appellees are governed, controlled, and limited by the petition and decree, and that all antecedent agreements were merged in the agreement therein. If the articles of adoption did not contain the real agreements, it would have been necessary for the minors to have brought a bill in the nature of a bill of review within two years after attaining their majority, and made a direct attack upon the adoption proceedings.

In Beaver v. Crump, 76 Miss. 34, 23 So. 432, it was held that the rights of the parties are fixed by the decree of the court on the petition, and unless heirship was granted or was made one of the gifts, grants, or benefits proposed to be conferred, it did not exist. In that case Mrs. Crump had been adopted by one Pool. Pool had stated in his petition for adoption that he proposed to devise to her the plantation known as “the Sykes place,” and to devise and bequeath to her his other property that he should not devise and bequeath to others. After the adoption proceedings and during his lifetime Pool conveyed the Sykes plantation to Mrs. Crump, but in 1896 he died without having made any will or testament. The adopted daughter Mrs. Crump, brought suit against the natural heirs of Pool, insisting that under the adoption proceedings she was entitled to all property not devised or bequeathed to others, and prayed for a specific performance of this part of the petition. The court held that the adoption proceedings did not make her an heir of Pool, and that specific performance would not lie to enforce the expectation named in the petition for adoption. The court in discussing the case and the petition said that everything except the Sykes plantation, was left for disposition at petitioner’s pleasure, that the most favorable view that could be taken was that Pool would devise Ms property not disposed of to Mrs. Crump, and that she acquired no vested right in any particular piece of property under the proposal to devise to her what had not been devised to others.

In the case before us the petition for adoption states that it is the wish of E. M. McAllum that Willie and Levie Mc-Allum be made his heirs, inheriting his. property at his death. This language is not sufficient to constitute a contract agreeing to give to the said Willie and Levie McAllum the property of said E. M. McAllum that he owned at his death. The decree of adoption defines definitely their right of inheritance, and that appellees shall be adopted as the legal children and' heirs of the said E. M. McAllum, with full power to inherit his property as if they were born his children in lawful wedlock. The .'fights conferred are to right of heirship as if they were born in lawful wedlock. They do not under this decree have any other or greater power than lawful children would have. They become the heirs at law of said E. M. McAllum, and inherit only such property as he had not otherwise disposed of. A. person has the legal right to will his property away from his heirs. He may, if he desires, disinherit them. They have the right only to take by inheritance that which he owns undisposed of at- his death. Decisions from other states are cited in support of the contention that McAllum did not have the power to dispose of his property by will after making agreements with the appellees that he would give them his property at his death in consideration of their services and obedience. The statutes of the different states vary greatly as to adoption proceedings, and in some states it is regarded as being not a judicial proceeding, but as a legislative proceeding. In our state it is a judicial proceeding. Beaver v. Crump, 76 Miss. 34, 23 So. 432. It being a judicial proceeding in this state, the decree of the chancery court dated August 29, 1911, is the measure of the rights of the parties, and as that decree cannot in a collateral proceeding be attacked, and it appearing from the bill and the exhibits thereto that more than two years had passed after the appellees attained their majority, and the said E. M. McAllum being dead, it was too late for a bill of review. The complainants planted their rights upon these adoption proceedings, and seek to maintain their bill upon the theory that under its terms they were entitled to the property as a matter of contract. As before stated, the prior agreements must be treated as merged in the adoption proceedings, and-when we measure the rights of the appellees by the adoption proceedings, the bill must fail. The demurrer should have been sustained, and the bill dismissed. The chancellor overruled the demurrer, and consequently the judgment must be reversed, and judgment entered here dismissing the bill.

Reversed and dismissed.