Bray v. Miles

Comstock, C. J.

The questions submitted to the court in this case involve the construction of the statute of this State, concerning the adoption of heirs, and the application of that statute to the will of John Miles, who died testate, at Hendricks county, Indiana, June 23, 1896, and whose will was duly probated in that county. In order to present the question, we quote three items from the will, a copy of which is set out in the record:

“(2) I will, give, and bequeath to my two sons, Thomas J. Miles and John A. Miles, in trust, all my personal estate, including money on hand and due me from every source, the same to be safely and prudently used and invested so as to yield an income; and from said personal estate and the income therefrom I desire and direct that my wife, Elizabeth Miles, and my two invalid daughters, to wit, Emily Miles and Jane Miles, shall be provided with a comfortable maintenance and support in sickness and in health, and a comfortable and suitable home so long as they or any of them shall live; and in the event that for any cause my sons above named fail to execute this clause of my will, I direct that the Hendricks Circuit Court shall appoint some competent and suitable person who shall fully execute this trust, and shall give bond for the faithful performance of his-duties in relation thereto. In the performance of the duties imposed by this provision of my will, I hereby authorize my said sons, Thomas J. Miles and John Miles, or whomsoever may act in their stead as aforesaid, to dispose of my salable personal property at such time and in such manner as will in their judgment best subserve the purpose hereinbefore specified, but such executors shall make a complete inventory of said personal estate, as required by law, to be filed with the clerk of the Hendricks Circuit Court, and shall report to said court at least once in every two years a true and complete account of all money received and paid out by them; and said executors shalLbe allowed fair and reasonable compensation for their services, to be allowed and approved by said court. .

“(11) It is my will, and I hereby expressly declare if to be the first object of this will, that my said wife, Elizabeth Miles, and my two invalid daughters aforesaid, Emily Miles and Jane Miles, shall be fully and comfortably provided and supplied with all the necessaries and ordinary comforts of life, including a comfortable home, and that my wife shall keep and retain in her possession all such household goods as they may need, and if my personal estate shall not be sufficient to so maintain them so long as they or any of them shall live, then, and in such case, they or any of them, shall have and hold a lien upon all of the real estate which is hereby devised to my children.

“(12) ■ I hereby will and direct that all of the surplus of my estate, after the execution of the several items and clauses of this will above mentioned, shall be distributed among my several children, Martha, Thomas J., John A., and Samuel "W. Miles, so as to make them equal in the distribution thereof, and in the event of the death of any one of the last above named the shares due such as may be deceased shall go to the children of such deceased person, if there be.children; and if there be no children, then such share shall go to the survivors.”

The testator survived his wife. All of the children named in the clauses above quoted survived the maker of the will, but the two invalid daughters are now dead. The daughter Martha, who is named in item twelve of the will, is also dead. The testator’s three sons, Thomas J., John A. and Samuel W. are living, and have v'ives and children living. Martha was, when the will was made, and when she died, a married woman, the wife of one Columbus Walker, but never bore any children. During the lifetime of John Miles, the maker of the will, she, with the knowdedge of the testator, adopted the appellant, the adoption having been duly and regularly made under and by virtue of the statutes of this State, concerning the adoption of heirs. The appellant, as such adopted daughter, claims that she is in’ law the child of and is entitled to the share of her adopted mother, under item twelve of the will. Martha was born January 14, 1841, became the wife of Columbus "Walker, named in the will, on October 27, 1870, and was his wife at the time of her death <*a December 2, 1891. At the time of the marriage she was twenty-nine years old. She had been married thirteen years when the will was made. Thomas J. Miles, the only one of the executors named in the will who seems to have acted, filed a final report, showing the death of the widow and the two invalid daughters, claiming that he had fully acquitted himself of the trust created in their behalf by the will, and that there remained for distribution under item twelve of the will $40,603.83, which was represented by notes and bank stock. He further showed the death of his sister Martha; that she had borne no children, but had adopted the appellant, who survived her; that he and his two brothers named in item twelve of the will, with said Martha, as residuary legatees, having concluded that their sister’s adopted daughter was not her child, and that she was not entitled to share in the distribution of said sum, had agreed upon a division of the same among themselves, which they asked the court to approve and confirm, ignoring the appellant as having no right to share in the distribution. The appellant filed exceptions to this report, showing the fact, the time, and the manner of her adoption, and asking that ,she be allowed to share in the distribution. The court, upon the motion of the executor, struck out her exceptions. This ruling is assigned as one of the errors. Thereupon the appellant filed her petition for distribution. When the final report of the executor and the petition for distribution were submitted to the court for lie'aring, the court was requested by the parties to make a special finding of the facts, and state its conclusions of law thereon, and did so. The appellant excepted to the conclusions of law, which were adverse to her. If the appellant, as the adopted child of Martha Walker, is entitled to take the share, of her adoptive mother, the action of the trial court was erroneous and the case should be reversed.

Appellant claims that by virtue of her adoption, and in law, and in everything which concerns her property rights, 'she is the child of Martha Walker. That Martha Walker being dead when the time came for the distribution of the surplus under item twelve of the will, the appellant as such ’ child was entitled to the distributive share which would have gone to her adoptive mother if she were then living.

The will designates a class, children, as beneficiaries. The question presented, therefore, is whether under the statute appellant is a child of Martha, the daughter of the testator. Can she be identified as a beneficiary named in the will? It is conceded that she cannot take by inheritance from the decedent. Adoption has been defined to be “the act by which a person appoints as his he'ir the child of another. Abney v. DeLoach, 84 Ala. 393, 4 South. 557. The object of adoption is' to place as nearly as possible the child adopted in the place of a natural one; to give it the position in the family as the child both of the husband and wife, conferring on it rights and privileges of a child. Among other consequences, thd effect of adoption is to cast succession upon the adopted in case of the intestacy of the adopting father. Adoption was unknown to the common law. It was regulated by law in Greece and Rome. In Rome'the system was in vogue before the time of Justinian. He reduced the system, which prior to his time was encumbered with formal ceremonies, to a code which simplified the proceeding, and from which modem legislation upon the subject has derived its chief features, adapting them to our wants. It was introduced as a part of the civil lawr in this country from France and Spain respectively to Louisiana and Texas. For‘the reason that it is purely statutory' and in derogation of the common law, it has frequently been said that it is to be strictly construed. This .expression occurs in the reported oases in which the jurisdiction of the officer or tribunal or the regularity of the proceedings' of adoption have been called in question. The statute is not to be so strictly construed as to defeat its purposes. §838 Burns 1894, §826 Horner 1897, reads: “After the adoption of such child, such adopted father or mother shall occupy the same position toward such child that he or she would if the natural father Or mother, and be liable for the maintenance, education and every other way responsible as a natural father or mother.” The name of the child is changed; its identity is lost -in that of the adopting parents; it becomes in all but blood their child.

In Martin v. Aetna Ins. Co., 73 Me. 25, it was held that ■an adopted child falls within the terms “children” when there is no other person that answers that description.

In 5 Am. & Eng. Ency. of Law, p. 1098, it is stated that the words “child” or “children” usually include an adopted child,’citing Power v. Hafley, 85 Ky. 671, 4 S. W. 683; Stanley v. Chandler, 53 Vt. 624; Keegan v. Geraghty, 101 Ill. 40.

In Clifton v. Goodbun, L. R. 6 Eq. 277, the word “children,” in the will of a bachelor was held to mean illegitimate children, as he could have no other.

In Vidal v. Commagere, 13 La. Ann. 516, the court held, under a statute which allowed a married couple to adopt an orphan child, that when adopted the child became to all intents and purposes the child of the adopting couple. The court said: “We conclude, therefore, that, as by the common acceptation of the word adoption, the relationship of parent and child with all the consequences of that relationship is understood, as such was the legal meaning of the word under the former laws of Louisiana, and as such is its acceptation among civilians and those conversant with the sources of our laws, we cannot say that the legislature used the word in a more restrained sense; in a sense not understood in common parlance, not given in any dictionary, and not known in any system of laws. As by the former laws of Louisiana, the person adopted bore the relation of child to the person adopting, and inherited his estate, 'So we think the legislature, by the solemn expression of its will, intended to' confer the same right upon the plaintiff to the estate of those who were authorized to adopt her.”

In Estate of Wardell, 57 Cal. 484, in construing the wore1 “children” in the statute of descent, the .court says, it “must relate to status, not to origin — to the capacity to inherit * * * its meaning includes all children upon whom has been conferred by law the capacity of inheritance.” In this case, a woman’s will was set aside because it made no provision for an illegitimate daughter, the statute providing that “When any testator omits to provide in his will for any of his children, or for the issue of any deceased child, unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator as if he had died intestate.”

In Power v. Hafley, supra, the court, in discussing numerous cases upon the subject of adoption, said: “When the statute authorizes a full and complete adoption, the child adopted thereunder acquires all of tjie legal rights and capacities, including that of inheritance, of a natural child, and is under the same duties.”

The Supreme Court of this State has construed the statute in the following and other cases: Barnes v. Allen, 25 Ind. 222; Markover v. Krauss, 132 Ind. 294, 17 L. R. A. 806; Humphries v. Davis, 100 Ind. 274, 50 Am. Rep. 788; Krug v. Davis, 87 Ind. 590; Davis v. Krug, 95 Ind. 1; Humphries v. Davis, 100 Ind. 369; Paul v. Davis, 100 Ind. 422; Isenhour v. Isenhour, 52 Ind. 328; Keith v. Ault, 144 Ind. 626; Patterson v. Browning, 146 Ind. 160.

In Markover v. Krauss, supra, the court said: “ {He who is either adopted or arrogated is assimilated in many points to a son born in lawful matrimony.’ * * * Adoptive children, so long as they are held in ádoption, are in the position of children born to us. * * * The adopted child, while held in the bonds of adoption, was still in the position of a natural child, or a child born to the adopting father. Not, as is said in Humphries v. Davis, supra, that the law contemplated to do the work of nature and create a child of one’s blood out of a stranger, but, that the law could, and did make the legal status of the one in every respect that of the other. Thus, the son of the adopted son was by the law made the grandson of the adopting father, with 'all the legal rights incident to that relation.” After quoting from Vidal v. Commagere, supra, the court says: “Viewing this statute in the light of the civil law, it seems clear to us that the legislative intention was to give to adopted children the same relation to adopted parents that was given them by the civil law; that, in so far as property rights are concerned, it was the intention to give to them the same rights as if they were their natural children, or children of their blood; and, when the adoption is joint, that they should, as to all property right's, be, in the eye of the law, children of the adoptive father by the adoptive mother.” The court in the same case declined to consider a construction of the statute which would favor natural as against adopted children in the following language: “If, however, they are all adopted children,'under the construction contended for by the appellant, the widow will take one-third in fee, thus excluding them from all participation in that portion of the estate. The effect of such a construction would be to discriminate in favor of natural and against adopted children, and, in the face of the plain, unequivocal language of the statute, and of the established rules of the civil law, to deny to adopted children the equal rights said to be theirs by virtue of their adoption.”

In Barnes v. Allen, supra, the court said: “Under §3 of the 'act regulating the adoption of heirs’ supra, they were the heirs of the adopting father, in the degree of children.”

In Krug v. Davis, supra, the court said: “The obvious purpose of the statute before us was to authorize the incorporation of the children of other persons into families desirous of assuming control over them, and in that way to sanction the formation of new and artificial family relations between persons not necessarily of the same blood. It evidently contemplates that persons desirous of adopting children under it shall be of suitable age to enter into parental relations, but as to such persons it applies as well to those who are married as to those who are unmarried. It would be inconsistent with the general scope and purpose of this statute to permit two or more persons representing different families to jointly or concurrently adopt the same child, but that objection, in our estimation, does not apply to joint proceedings by husband and wife for the adoption of a child. On the contrary, the better and more reasonable construction appears to us to be that a wife may unite with her husband in such a proceeding as, from the very nature of things, the interests of the entire family are necessarily involved in the object sought to be accomplished by it. There is not only no inconsistency, but a manifest propriety, in the wife thus uniting with her husband, as, by doing so, the adopted child is made to assume, in a general sense, the same position in the family which it would occupy if it were the natural child of both, born in lawful wedlock. * * *.

- “It is clear to us that the leading and controlling purpose of the framers of the statute under examination was to place an adopted child as nearly as possible in the place of a natural one; to give it a position in the family as the child both of the husband and wife. In a matter which so nearly concerns the interests of the wife and so deeply affects the welfare of the child, it is eminently proper that the husband and wife should unite in making the child their own. * * *

■ “The purpose which the statute we are examining was intended to accomplish was to enable parents to adopt as their own the children of others, and to secure for the adopted child the parental affection of both a father and a mother. As the adopted child of both the husband and wife, it would stand much more nearly in the place of a natural child than if it was made the child of only one of them by adoption, and this was where the legislature meant it should stand.

“The effect of our decision is to place a child adopted by a husband and wife jointly in substantially the same position as that of a natural child, and when the child takes this place there are long settled rules which will determine and control the rights of all the interested parties, and there is then neither confusion nor uncertainty.”

In Humphries v. Davis, 100 Ind. 274, the court said: “If, as the civil law so fully provided, a child of the adoptive son stood in the relation of grandchild to the adoptive ■ father, then the son himself must stand as the child of that father.”

Erom the case of Paul v. Davis, 100 Ind. 422, we quote the following: “The adoptive child does become the stirps or stock of inheritance, but to whom does it sustain this relation as to property acquired by inheritance from the adoptive parents? Doubtless, this relation exists between such a child and its children; they are of the original stock of descent, for they bear the relation of 'grandchildren to the adoptive parents. The legal relation does not end with the death of the adoptive child, and so the line of descent goes back, in default of wife or children, to the source from which the property came. * * *.

“In the earlier case of Barnes v. Allen, 25 Ind. 222, it is clearly implied that the relation between the adoptive parent and the adoptive child is that of parent and' child, with the reciprocal right of inheritance.”

The case of Markover v. Krauss, 132 Ind. 294, has been cited and approved, in Keith v. Ault, 144 Ind. 626, and in Patterson v. Browning, 146 Ind. 160. In the former, at page 628, the court says: “It is not questioned that by the statute for the adoption of heirs, already cited, the appellant was ‘entitled to receive all the rights and interest in the estate’ of her adoptive father that she would have received .if she had been his natural child. As a matter of fact, her rights as the child of James H. Lemmon were fully recognized in the partition of his real estate, a child’s full part being set off to her, subject, as in the case of other children, to the payment of her father’s debts. * * * No doubt, if Georgiána had been adopted by both Mr. and Mrs. Lemmon she would have inherited from Mrs. Lemmon as any other child from its parents.”

In Patterson v. Browning, 146 Ind. 160, there was a controversy between natural children and an adopted child, James 0. Inwood adopted one Bessie Miff el as his child, her name being changed at the time to Bessie Inwood. At the time of the adoption he had four natural children. He died seized in fee simple of certain real estate, leaving as his heirs the four natural children, the adopted child, and a childless second wife. The wife took under the statute the one-third of his real estate. She afterwards married one Browning, who adopted the said Bessie Inwood, and her name was changed to Bessie Browning. The widow died, and the natural children of Inwood claimed the one-third of their father’s estate which the widow had taken descended to them to the exclusion of the adopted daughter. The court said: “Upon this state of facts the appellants ■ claim that the real estate in controversy descended to them as the forced heirs of said widow to the exclusion of all others, and especially to the exclusion of the appellee.” The court reached the conclusion that the adopted child was entitled to inherit as a natural child.

Counsel for appellee insist that while the statute of this State fixes the status of the adoptive parent and the adopted child to be that of parent and child under adjudicated cases of our courts, that it by no means follows that they occupy the same relation to each other as to descent of property as a natural parent and child. The following distinctions are pointed out in the status of the adopted and natural child. The parent of a natural child who dies without issue in this State inherits the property of such child regardless of the source from which it was acquired. The adoptive parent only inherits such property as5 has come to the adopted child through the adopting parent, while all other property of such adopted child is inherited hy his natural kinsmen. Humphries v. Davis, 100 Ind. 274; Davis v. Fogle, 124 Ind. 41, 7 L. R. A. 485. Where a natural child-is born after the execution of a will, without- provision being made in the will for such’child, such -fact revokes the will; while the adoption of a child after the execution of a will making no provision for such child does not have that effect. An adopted child inherits from its natural parents, but not from the relatives of the adopting parent. Citing Davis v. Fogle, supra; Humphries v. Davis, supra. Appellant’s learned counsel cite Keegan v. Geraghty, 101 Ill. 26; Miller v. Rappley, 163 Ill. 22; In re Jessup’s Estate, 81 Cal. 408, 21 Pac. 976, and 22 Pac. 742, 6 L. R. A. 594, in support of the proposition that an heir is a creature of the lawT, and so far as the adopted child is concerned, a creation of statutory law, and we recognize the correctness of the position. Appellee cites numerous authorties ,holding that the adopted child does not become the child in fact of the parents making the adoption, and that the statutes upon this subject have generally attempted to fix only the status of the adopted child as to his rights to inherit by descent from them, and that the general rule is that an adopted child cannot take by descent from the ancestors of the adopting parents. The following are the cases cited to sustain appellees’ claim. 24th Am. Eng. Ency. of Law, 424; Meader v. Archer, 65 N. H. 214, 23 Atl. 521; Sunderland’s Estate, 60 Iowa 732, 13 N. W. 655; Keegan v. Geraghty, supra; Davis v. Fogle, supra; Wyeth v. Stone, 144 Mass. 441, 11 N. E. 729; Barnhizel v. Ferrell, 47 Ind. 335; Russell v. Russell, 84 Ala. 48, 3 South. 900; Schafer v. Eneu, 54 Pa. St. 304; Barnes v. Allen, 25 Ind. 222. But, as contended by appellant, and as we conceive the question to be, the property rights of children as an abstract proposition are not involved in this appeal. The question is one of the identification of a legatee. By the terms of thé will, as we have seen, in the event of the death of any of the four children named in item twelve, the shares of those deceased shall go to their children, “if there be children, and if there be no children, then such shares shall go to the survivors.” When the will became operative, Martha was dead, leaving appellant, an adopted child, surviving her. Her rights of inheritance are not material because she is claiming nothing as an inheritance. Her claim is based solely on the will and the statute which makes her, as the adopted child of Martha a legatee, because she is, under the law, the child- of Martha, and, irrespective of any right of inheritance, a legatee. Had Martha left a natural and an adopted child, we think there could be no question but that both would have taken equally as legatees. In such case appellant would have taken only by virtue of the status given her by the adoption. She is none the less the child because Martha left no child of her body. The testator could have named his legatees “children of her body,” “children born to her,” “children of her blood,” or, “to her issue,” or to the “heirs of her body,” or by the use of “apt words” could have excluded the adopted child.

The case of Davis v. Fogle, supra, cited by appellees, involved the construction of §2730 Burns 1894, providing that “if after the making of a will, the testator shall have born to him legitimate issue, who shall survive him, * * * the will will be deemed revoked.” The court decided that an adopted child was not -a child born to the parent adopting it. The will in question did not provide that in case of the death of any of the children named, the share of the deceased should go to his “legitimate issue,” provided he had legitimate issue born to- him who should survive him. Appellees strongly rely upon the case of the New York Life Ins. Co. v. Viele, 22 App. Div. 80, 47 N. Y. Supp. 841. The facts in that case showed that the testatrix, Mary. Griffin, removed from America to Saxony, in the year 1855. She executed a will August 6, 1878, in which, after making several specified bequests in the first clause of the will, by the second clause the testatrix gave all the residue of her estate to her executors in trust; and by the third clause, the executors were directed to invest one-third part of the residuary estate and to apply the net income derived therefrom to the use of her daughter, Emily S. Lengnick, during her lifetime, and upon her decease, the testatrix directed “that the principal of such share be paid over or transferred by my executors to her then ‘living lawful issue,’ if any, and, if she leave her surviving no such issue, I direct that the same shall then be added in equal parts or proportions to the principal of the several shares of my residuary estate, hereinafter directed to be held in trust for my ten grandchildren, hereinafter named.”

Tke testatrix died at Dresden, Saxony, March 9, 1888, where she had resided for many years. ETer daughter Emily was married to Major Lengnick, a citizen of Saxony. Mrs. Lengnick had had two children, both of whom died in 1872. She continued to reside at Dresden, until her death in 1893, having had no children except the two who had died in 1872. At the time of the making of the will, Mrs. Lengnick was about forty years old, and living with her husband at Dresden, but was in poor health. In the year 1873, one year after the death of her two natural children, and about five years before the execution of the will in question, Mrs. Lengnick and her husband adopted, Tinder the laws of the Kingdom of Saxony, a niece of the husband, Olga Eelicate Lengnick, who it is conceded was legally adopted under the provision of the Saxony law, and without any limitation in the contract of adoption against her right to inherit. And she insisted as the adopted daughter of Mrs. Lengnick she was the lawful issue of Mrs. Lengnick, and as such was entitled to the trust estate that was created by the third clause of the will. The court held that it was clear that the testatrix did not intend that this share of her estate, given to her daughter Emily for life, should, upon her death, go to this adopted child. The case is not in point. The adopted child could not take under the will in question, because the beneficiary was described as “the living lawful issue”, a description which could not apply to an adopted child. The bequest over was to the living lawful issue of the primary legatee, Emily Lengnick, wrho died leaving no child except an adopted daughter. The adopted child was not the issue of the primary legatee, nor was issue synonymous with children. One’s issue is necessarily one’s child, but a child in law is not necessarily one’s issue. The legal status of parent and child may -exist between those not of the same blood; a status created by statute. Thus in Patterson v. Browning, 146 Ind. 160, the court says, in effect, that when the legislature uses the word children, without qualification, that the word is broad enough in its significance to include adopted with natural children. It does no violence to the rules of construction to place the same construction upon the word when it occurs in last wills. Counsel for appellee refer to the well settled rule that in every case in which a will is to be construed, the chief object is to ascertain from the language used in the will itself, considering the circumstances surrounding the testator and the objects of his bounty at the time of making the will, the intention and • design of the testator. Appellees contend that there is nothing in the will' itself, or the circumstances surrounding the testator at the time it was made, that tends in the* remotest' degree to indicate an intention upon the part of the testator that appellant should participate in the bequest in question. An examination of the will, together with the circumstances surrounding the testator at the time the will was made, as shown by the finding of the court, reveals the fact that John Miles, during his lifetime, had accumulated a large estate; that he had kept the whole of it in his own right and under his own control until his death; that he pledged every dollar of his large estate for the comfortable maintenance and support óf his wife and two invalid daughters. That, he had three sons, and but one daughter, Martha, besides those that were invalids. That he gave all of his property, after making provision for his wife and invalid daughters, to these three sons and his daughter Martha. That his said daughter Martha, at the 'time of making the will, was more than forty-two years of age, and had been married nearly thirteen years; that she had never had any children born to her;' that the land he gave to his three sons he gave them in fee simple. That he gave an equal amount to his daughter Martha, during the life of herself and husband, which after death of both of them was given to his heirs at law. That they 'were not to sell the timber off of said land. It is claimed that these facts show that John Miles,, at the time the will was made, believed his daughter would die without issue; because, believing thus, he provided that the real estate given his daughter Martha, at her death and the death of her husband should go to his other heirs; that there was a fixed purpose in his mind to keep his property in the line of his own blood.

It must be further remembered that the meaning of a last will is to be ascertained first from its language, when free from ambiguity. The testator knew of the adoption of the appellant nearly eighteen months prior to his death. It is the theory of appellees that he believed that no children would be born to Martha. Had he designed to exclude her from the participation in his estate, the time and opportunity were ample to have made that purpose known. The will-bears evidence of the skill and learning possessed by the attorney drafting it, inconsistent with the theory that apt words were omitted from lack of either. The testator died with the knowledge that appellant, in law, though not in fact, was the child of Martha, and that a portion of the residuum of his .estate would go to the children of Martha upon her death. He must be presumed in using the word “children” with no other designation to have so used that word in view of the statute and its interpretation by the Supreme Court. Johnson’s Appeal, 88 Pa. St. 346; Rowan’s Est., 132 Pa. St. 299, 19 Atl. 82. It must be presumed that he knew a child adopted under the statute was described as the child of the adopting parent, and that the Supreme Court in interpreting the statute had declared that an adopted child was the child’of the adopting parent. Under the statute and the decisions appellant answers the description of and is identified as a beneficiary under the will. The court erred in its conclusions of law. The judgment is reversed, with instructions to restate the conclusions and render judgment in accordance with this opinion.