Comer v. Comer

In the instant suit against executors and others, to construe a will and to recover a portion of the estate, on the theory that by reason of his adoption as a child by a daughter of the testator, though after the testator's death, the plaintiff was a legatee within the meaning of the following terms: "the representatives of children;" "the representatives of children, per stirpes;" "representatives of children in proportion to their interests in said property;" "representatives of deceased children to stand in the place of deceased parents and take per stirpes and not per capita;" "children of deceased parents representing the share of any deceased parent;" and the "issue" of any daughter who shall die "leaving issue": Held, that none of the language quoted would, according to its natural import, include the plaintiff as a legatee, nor did the will as a whole show an intention to that effect on the part of the testator. Such being the case, the petition did not state a cause of action, and should have been dismissed on general demurrer.

No. 14315. DECEMBER 1, 1942. Donald Drewry Comer, a minor, suing by his guardian, Hugh Moss Comer, sought relief in equity against the executors and trustees under the will of John D. Comer Sr., deceased, and against other parties at interest. He alleged that he was the adopted child of a deceased daughter of the testator, and further averred in effect that because of such adoption he was entitled to certain rights under the will to the same extent as if he were a natural child of his adoptive mother. The adoption occurred after the will was executed, and after the testator's death. Petitioner prayed that the will be construed, that his interest thereunder be declared and established, and that the executors and trustees be directed to pay to his guardian a stated sum of money to which he claims title and which he alleges is now ripe for payment. The question is whether the petition was good against general demurrer. Substantially the following case was presented: John D. Comer Sr., the testator, was a resident of Bibb County, Georgia, at the time of executing the will and at the time of his death. The will was executed in 1920, and the testator died in 1923. He was survived by his widow, Mrs. Maud Gamble Comer, and three children, one daughter, Cynthia Comer, and two sons, Hugh Moss Comer and John D. Comer Jr. Cynthia Comer became by marriage Cynthia Comer Ross, and she and her husband in March, 1937, at Asheville, North Carolina, did adopt the plaintiff as their child under the laws of that State. Cynthia Comer Ross had no children born to her, and died in January, 1940. After her death, the plaintiff was adopted in Georgia by Hugh Moss Comer and his wife, and his name was changed to Donald Drewry Comer, his present name. The widow, Mrs. Maud Gamble Comer, has never remarried, and she and the two sons, Hugh Moss Comer and John D. Comer Jr., are all still in life. Among those named as defendants were Mrs. Maud Gamble Comer as executrix and trustee, and Citizens Southern National Bank as executor and trustee. One of the defendants, John D. Comer Jr., being a minor, a guardian ad litem was appointed for him.

The petition sought construction of items 4, 8, and 9 of the will. These with other pertinent items are as follows:

Item 4. "I also give and devise unto my wife the house and lot where I now live, on the corner of Vineville and Pio Nona Avenues, to he hers for and during her natural life, with power to sell and convey, at public or private sale and on such terms as she may see fit, the fee-simple title to said property at any time she may so desire; the proceeds of such sale, however, to become a part of the residue of my estate and to be thereafter managed and controlled and to pass under the 7th item of this will as therein provided. Upon the death of my wife without having sold said house and lot, the title thereto shall vest absolutely, share and share alike, in our children born and to be born, then living, and the representatives of children, per stirpes. . . In the event our children or the representatives of children shall be unable to agree as to the management and disposition of said property after my wife's death, my executors shall sell said property at public or private sale and without any order of court, and divide the proceeds among our children and representatives of children in proportion to their interests in said property."

Item 7. "All the rest and residue of my estate of which I may die seized and possessed, of whatever consisting and wherever situate, whether real, personal, or mixed, and including any interest or share to which I may be or become entitled in any property or estate, especially including any interest, present or contingent, under the will of my father, Hugh M. Comer, I give, devise and bequeath, subject to the limitations and conditions hereinafter expressed, unto my beloved wife and children born and to be born, share and share alike, the representatives of deceased children to stand in the place of deceased parents and take per stirpes and not per capita. As soon as practicable after my death, my executors shall divide the residue of my estate into parts equal in number to my wife and children born and to be born, children of deceased children representing the share of any deceased parent. In making such division it is my will and desire that each part shall, as near as practicable, consist of like properties."

Item 8. "The share or part of my wife, under the 7th item of this will, shall be held by my executors and the net income therefrom paid over to her, not less frequently than annually, for and during her natural life or widowhood, and at her death or remarriage such share or part to be divided among our children or the representatives of children, per stirpes, at the times and in the manner the shares of our children, under the 7th item of this will, are turned over to them respectively as hereinafter provided."

Item 9. "The share of each daughter under the 7th item of this will shall be held by my executors for her life, and the net income arising therefrom during her minority paid over to her mother, and after her mother's death to her guardian, not less frequently than annually, to be used for the support, maintenance, and education of such daughter, without accountability on the part of her mother; and after the majority of such daughter, such income to be paid over to such daughter not less frequently than annually; and at her death, leaving issue, then such share to be paid over and delivered absolutely to such issue, share and share alike, as such issue shall arrive at the age of twenty-one, the net income being used meantime for the support, maintenance, and education of any minor issue. In the event of the death of any daughter, not leaving children or the representatives of children her surviving, then the share or part of such daughter, under the 7th item of this will, shall go to her surviving brothers and sisters or their representatives, per stirpes, at the time and in the manner the shares of such surviving brothers and sisters, under the 7th item of this will, are turned over to them as herein provided."

Item 10. "The share of each son under the 7th item of this will shall be held by my executors until such son shall arrive at the age of twenty-one, and the net income therefrom during his minority paid over to his mother, and after his mother's death to his guardian, not less frequently than annually, to be used for the support, maintenance, and education of such son, without accountability on the part of his mother. Upon his arrival at the age of twenty-one, the net income shall thereafter be paid over to him. When such son arrives at the age of thirty, one half of his share or part remaining after any advancements shall be turned over to him absolutely; and when he arrives at the age of forty, the other one half of such share or part shall be turned over to him absolutely. But I hereby specially authorize my executors, should they see fit to do so, to advance and turn over to such son absolutely, at any time after he arrives at the age of twenty-one, not more than one fourth of the share or part of such son under the 7th item of this will; and I further authorize my executors, should they see fit to do so, to turn over and deliver absolutely to such son, at any time after he arrives at the age of thirty, the entire balance of such share or part. Should such son die before arriving at the age of forty, leaving issue, the share or part not already turned over to him shall then and in that event immediately go absolutely to such issue, and be paid over and delivered absolutely to such issue, share and share alike, as such issue shall arrive at the age of twenty-one, the net income being used in the meantime for the support, maintenance, and education of any minor issue. In the event of the death of such son before arriving at the age of forty, not leaving issue him surviving, but leaving a wife, then the income from the share or part of such son not already turned over to him shall go to such wife for her life or widowhood; and upon her death or remarriage, then such share or part to go to the surviving brothers and sisters of such son, or their representatives, per stirpes, at the time and in the manner the shares of such surviving brothers and sisters, under the 7th item of this will, are turned over to them as herein provided. In the event of the death of such son before arriving at the age of forty, not leaving issue or wife him surviving, then the share or part of such son not already turned over to him shall go to his surviving brothers and sisters or their representatives, per stirpes, at the time and in the manner the shares of such surviving brothers and sisters, under the 7th item of this will, are turned over to them as herein provided."

Item 13 named as executrix and executor Mrs. Maud Gamble Comer and Citizens Southern Bank, which has been succeeded by Citizens Southern National Bank.

The executors of the will of John D. Comer Sr. have expressed doubt as to whether the plaintiff, as the adopted child of Cynthia Comer Ross, takes any interest, vested or contingent, under item 4 of the will, and advised the plaintiff that they could not recognize him as a representative of Cynthia Comer Ross within the meaning of item 4 without an order of court so directing, and that they will not recognize that he has any interest under said item unless and until the court so construes this item. The plaintiff, as a matter of law, is the representative of Mrs. Cynthia Comer Ross within the terms and meaning of said item 4, and, if then in life, takes, upon the death of Mrs. Maud Gamble Comer, an interest in said house and lot, in the event it has not been sold by her before her death, the amount of his interest depending upon the number of children of the testator in life or having representatives in life at the time of the death of the life tenant. Said executors-trustees have likewise questioned the rights of Donald Drewry Comer to take anything under item 8, and have declared that they were recognizing no rights in him under said item, unless the court so orders.

Petitioner next alleged certain theories as to the meaning of item 8 and the share to which he would be entitled as a legatee under this item, averring his interest thereunder would vary in stated contingencies. He further alleged: Mrs. Cynthia Comer Ross, the plaintiff's adoptive mother, died testate, and petitioner "is a legatee in her will, which was duly probated." If plaintiff's adoptive mother died seized of any right, title, or interest under either item 4 or 8 of said will, such interest passed under the will of Cynthia Comer Ross to plaintiff, to be held in trust until he attains the age of thirty years. With respect to item 9, it was alleged: Since the death of Cynthia Comer Ross said executors-trustees have accumulated $22,583.67 income from said trust property held under item 9 for Cynthia Comer Ross and her child. Plaintiff has called upon the trustees under the will of John D. Comer to pay over to him said income, but they have refused to do so, giving as their reason that they are uncertain as to whether or not, under item 9, the plaintiff is issue of Mrs. Cynthia Comer Ross, and whether or not he is a child within the meaning of said will, and state that they prefer a judgment of the court as to whether or not, under the terms of said will, the plaintiff is entitled to the income of the trust estate created by item 9 during his minority, and to said trust estate in its entirety when he shall become twenty-one years of age, or whether said trust estate, upon the death of Mrs. Cynthia Comer Ross, became the property of her surviving brothers, Hugh Moss Comer and John D. Comer Jr. The plaintiff, as the adopted child of Cynthia Comer Ross, is a child and issue of Cynthia Comer Ross within the terms and intendment of said will, and entitled to the income from said trust property under item 9 during his minority, and to said trust property absolutely upon arrival at majority. He prayed for construction of items 4, 8, and 9, and for recovery of the income that has accumulated under item 9 in the amount stated in the petition; and for a decree establishing his claim as asserted in the petition.

John D. Comer Jr., the minor son of the testator, through his guardian ad litem, Walter A. Harris, filed a general demurrer to the petition as amended. The demurrer was overruled, and the demurrant excepted. The will was executed in Bibb County, Georgia, where the testator resided, and should be construed in the light of and in accordance with the law of this State. Guerard v. Guerard, 73 Ga. 506; Sumpter v. Carter,115 Ga. 893 (42 S.E. 324, 60 L.R.A. 274); 69 C. J. 44, 133, §§ 1111, 1172. The will was executed in 1920; the testator died in 1923; and it was not until fourteen years after his death that the plaintiff was adopted as a child by the testator's daughter, in North Carolina. At the time the testator made his will, and at the time of his death, there was a law in this State providing for the adoption of children, but according to this law any child that might be adopted by one of his children would stand to him as if no such adoption had taken place. Code (1910), § 3016 (1933) § 74-404; Alexander v. Lamar, 188 Ga. 273 (3 S.E.2d 656, 123 A.L.R. 1032); Id., 190 Ga. 656 (10 S.E.2d 42). Thus, no act of the testator's daughter in adopting a child, whether before or after his death, could have created any relationship between such child and the testator, so as to make that child his own grandchild, upon whom he might naturally desire to bestow a bounty; and there is no reason to infer that he had in mind any other law as to adoption of children and resulting relationships. Nor can it be said that he even contemplated that any one of his children would in the future adopt a child, so as to create the relation of parent and child between them.

It is of course within the legislative power to confer upon an adopted child the right to inherit from its adoptive parents; but in this case the child is not claiming as an heir of his adoptive mother or as her representative under the laws of inheritance. He is claiming, on the contrary, as a legatee under a will, and his rights, if any, are dependent on that instrument.

The ultimate question therefore is, not as to the meaning of any statute, but what was intended by the testator? Code, § 113-806. In 1 Am. Jur. 665, § 64, it is stated: "In the matter of constructing the rights of an adopted child to take under a will, it should be borne in mind that it is not a question of the right of an adopted child to inherit, but simply a question of the testator's intention with respect to those who are to share in his estate. The disposition of the courts is to confine and limit the word `children' in its application, when it occurs in a will, to its natural import, excluding adopted children, except where the testator has clearly shown by other words that he intended to use the term in a more extensive sense." See 69 C. J. 177-179, §§ 1200-1203.

In the instant case the plaintiff claims an interest in the estate under items 4, 8, and 9 of the will, and prays for construction of these items. He is seeking also a present recovery under item 9; and the particular inquiry is whether the plaintiff, as an adopted child of the testator's daughter, but who was not adopted until after the testator's death, comes within the language of any of these items. The will is of course to be construed as a whole; and we find an express connection between each of these items and item 7. The plaintiff relies on the following terms as making him a legatee, entitled to share in the estate in certain contingencies: "the representatives of children," "the representatives of children, per stirpes," and "representatives of children in proportion to their interests in said property" (item 4); "representatives of deceased children to stand in the place of deceased parents and take per stirpes and not per capita," "children of deceased parents representing the share of any deceased parent" (item 7); "representatives of children, per stirpes" (item 8); and the "issue" of any daughter who shall die "leaving issue" as expressed in item 9; it being further declared in this item that: "In the event of the death of any daughter, not leaving children or the representatives of children her surviving, then the share of such daughter, under the 7th item of this will, shall go to her surviving brothers and sisters or their representatives, per stirpes, at the times and in the manner the shares of such surviving brothers and sisters, under the 7th item of this will are to be turned over to them as herein provided."

None of the language here quoted would, according to its natural import, include a person that was adopted as a child by one of the testator's children, where the adoption did not take place until after the testator's death. It would be unreasonable to say that he had any such adopted child in mind at the time of making his will, and it would require a clear addition to that instrument to include the plaintiff as one of the objects of his bounty. There being nothing in the will to the contrary, it is presumed that the testator intended that his property should go according to the law of natural descent, and not according to some artificial relation created by law. Allen v. Durham, 173 Ga. 811 (161 S.E. 608); Wright v. Hicks, 12 Ga. 155 (10) (56 Am. D. 451);Martin v. Citizens Bank of Marshallville, 180 Ga. 741, 746 (180 S.E. 734). Generally, the terms "issue," "children," "heir," and words of similar import, in a will, are intended to refer to natural or blood relationships, and would not include an adopted child in the absence of circumstances clearly showing that the testator so intended. The artificial relation created by adoption is an unusual and exceptional one, and hence would not fall within the ordinary signification of such terms. CompareHicks v. Smith, 94 Ga. 809 (3) (22 S.E. 153); Johnstone v. Taliaferro, 107 Ga. 6 (32 S.E. 931, 45 L.R.A. 95); 69 C. J. 177, § 1200 (c). In Estate of Puterbaugh v. Robins,261 Pa. 235 (104 A. 601, 5 A.L.R. 1277), it was held that a child adopted by a son of a testator after his death was not within a provision of his will giving a life-estate to the son, with remainder after the son's death to his child or children. See editorial note on this question, in 5 A.L.R. 1280. In the instant case there is nothing in the language quoted from items 4, 8, and 9 that can reasonably be construed as applying to the plaintiff. Nor is a different conclusion authorized, when we consider also the language of item 10, or examine the will in its entirety.

The Code, § 85-504, defining the words "heirs," "heirs of the body," and other words, for the purpose of determining who shall take in remainder where there are limitations over, was enacted only as a rule of property different from the former law, and does not purport to deal in any manner with the adoption of children or with any right flowing from such adoption. Ewing v.Shropshire, 80 Ga. 374 (7 S.E. 554); Crawley v.Kendrick, 122 Ga. 183, 185 (50 S.E. 41, 2 Ann. Cas. 643). This section therefore can have no bearing on the construction of a will, as to whether a person adopted as a child by a daughter of a testator was intended as a beneficiary.

While it was alleged in the petition that if the plaintiff's adoptive mother died seized of any right or interest under items 4 and 8, such right or interest passed to the plaintiff under the will of his adoptive mother, it is clear from the briefs that the question here relates only to the right of the plaintiff to take as a purchaser under the will of John D. Comer Sr., and not to any right which his adoptive mother may have sought to confer upon him by the terms of her own will.

From what has been said, we are of the opinion that the plaintiff is not a direct beneficiary under any provision of the will of John D. Comer Sr., and that the court erred in overruling the general demurrer to the petition as amended. See further, Phillips v. McConica, 51 Ohio St. 1 (51 N.E. 445, 69 Am. St. Rep. 753); Re Corr's Estate, 338 Pa. 337 (12 A.2d 76); Trowbridge v. Trowbridge, 127 Conn. 469 (17 A.2d 517); Hallv. Crandall (Del.), 20 A.2d 545; Woods v. Crump, 283 Ky. 675 (142 S.W.2d 680); Union Trust Co. v. Campi, 51 R.I. 76 (151 A. 131); Bundy v. United States Trust Co., 257 Mass. 72 (153 N.E. 337); Gallaher v. Sullivan, 251 Mass. 552 (146 N.E. 769); White v. Meyer, 66 Ohio App. 549 (37 N.E.2d 546); Re Harrington's Estate, 96 Utah, 252 (85 P.2d 630); Re Haye's Estate, 161 Or. 1 (86 P.2d 424, 87 P.2d 766); Reindersv. Koppelman, 94 Mo. 338 (7 S.W. 288); Hockaday v. Lynn,200 Mo. 456 (98 S.W. 585, 8 L.R.A. (N.S.) 117); Van Derlyn v. Mack, 137 Mich. 146 (100 N.W. 278, 66 L.R.A. 437, 109 Am. St. Rep. 669, 4 Ann. Cas. 879); Moritz v. Callender, 291 Mich. 190 (289 N.W. 126, 117 A.L.R. 714, note); Leask v. Hoagland,197 N.Y. 193 (90 N.E. 652, 27 L.R.A. (N.S.) 1158, 134 Am. St. Rep. 866, 18 Ann. Cas. 516).

Cited for the plaintiff: Warren v. Prescott, 84 Maine, 483 (24 A. 948, 17 L.R.A. 435, 30 Am. St. Rep. 370); Hartwell v. Tefft, 19 R.I. 644 (35 A. 882, 34 L.R.A. 500); Re Olney,27 R.I. 495 (63 A. 956), cited in 27 L.R.A. (N.S.) 1160, note; Haver v. Herder, 96 N.J. Eq. 554 (126 A. 661); Smith v. Hunter, 86 Ohio, 106 (99 N.E. 91). Whether these cases may be distinguished from the present case, either by their facts or in view of different statutes, they do not persuade us to a different conclusion; nor do we find other ground upon which to sustain the plaintiff's contentions.

Nothing said in this opinion is intended as an expression or intimation on whether the same or a different result should be reached if such an adoption should take place before execution of the will or death of the testator. As to construction ofstatutes, see Macon, Dublin Savannah Railroad Co. v.Porter, 195 Ga. 40 (22 S.E.2d 818).

Judgment reversed. All the Justices concur.