Schafer v. Eneu , 54 Pa. 304 ( 1867 )

The opinion of the court was delivered, by

Strong, J.

The rent was devised to trustees for the sole and separate use of Theresa Clark during her life,- and upon her decease it was directed to be conveyed to her children and the heirs of her children for ever. She had therefore but a life estate, nothing which she could devise, or which could descend from her to her heirs. Had she left children they would have taken as purchasers, as devisees under the will of her father, and not by inheritance through her. She left no children issue of her body, but she left children adopted in conformity with the Act of Assembly of May 4th 1855, to whom she devised the property and estate devised to her for life, and after her death to her children and their heirs. For the reason already maintained, her devisees took nothing under her will, for she had no devisable estate. If, therefore, the adopted children are owners of the rent, it is because they they are devisees under the will of James Eneu the first testator. But his gift of the remainder was to the children of his daughter Theresa Clark, and the heirs of her children. Adopted children are not children of the person by whom they have been adopted, and the Act of Assembly does not attempt the impossibility of making them such. It enacts that it shall be lawful for any person desirous of adopting any child as his or her heir, or as one of his or her heirs, to present his or her petition to a court, &e., “ declaring such desiré, and that he or she will perform all the duties of a parent to such child,” “ and such court,” &c., “ may decree that such child is heir of such adopting parent.” There is a proviso enacting that if such adopting parent shall have other children, the adopted shall share the inheritance only as one of them in case of intestacy, and that he, she or they shall inherit respectively from and through each other as if all had been the lawful children of the same parent. The right to inherit from the adopting parent is made complete, but the identity of the child is not changed. One adopted has the rights of a child without being a child. In Commonwealth v. Nancrede, 8 Casey 389, it was ruled that property descending to an adopted child is subject to the collateral inheritance tax. That could not be if the adopted were a child. In Nancrede’s Case,^Lowrie, C. J., said: “ Giving an adopted son a right to inherit does not make him a son in fact, and he is so regarded in law, only to give the right to inherit.”

If the act were construed as it is claimed by the plaintiff in error, as applied to the present case, it would work a result which it is not in the power of the legislature to effect. The will of James Eneu took effect in 1851. It gave a life estate in the rent to Mrs. Clark, with a contingent remainder to her children, and the residue of his estate to his children, naming them, in fee. The children thus named (and the children of such as are deceaséd) are the defendants in error. They had a vested interest in the rent when the Act of 1855 was passed. It was not in the power of the legislature to take away that vested interest and give it to sueh persons as Mrs. Clark might adopt.

The judgment of the court below was therefore right.

We have not noticed in the two objections that the plaintiffs, cannot maintain covenant against parties holding adversely, and that if the defendants are liable in covenant it is not to the plaintiffs. Both objections overlook the facts that the action is against George Shafer, the covenantor, and that the plaintiffs are devisees of the rent under the residuary devise, or if not, heirs of the lessor.

The judgment is affirmed.