Citation Numbers: 43 S.W.2d 556, 328 Mo. 966
Judges: FRANK, J.
Filed Date: 11/17/1931
Status: Precedential
Modified Date: 1/12/2023
In this State the power to create artificially the status of parent and child, to which the law will *Page 977
attach the same incidents, rights, privileges, duties and obligations it attaches to the status growing out of the natural relation, does not exist in the absence of an express statute conferring it. This, because "adoption" was unknown to the common law. For nearly a hundred years there was a statute in force in this State which provided that any person might adopt any child, as his or her heir, by deed duly acknowledged and recorded; and that the child so adopted should have and enjoy all the rights and privileges as against the person executing the deed of adoption, as a child has by law against the lawful parents. [Secs. 1671, 1673, R.S. 1909.] There have been a number of cases in which this court has approved decrees in equity decreeing the status of parent and child through adoption. But in every instance the decision, in its final analysis, was bottomed on the existence of the statute just referred to. Two cases will illustrate: Lynn v. Hockaday,
"And as there was no common law adoption the argument is that it must be done as the statute requires, or it cannot be done at all. But since the statute has made the adoption of a childlawful, the law, for the same reasons that it sometimes enforces oral contracts affecting real estate, will not allow the mere failure of one party to do his duty to work an irreparable wrong to one who has fully performed his part."
In the second (p. 590):
"While with us it is a statutory right, it is not to be considered as an infringement upon the natural rights of individuals, but must be regarded, like the statutes which regulate the distribution of the estates of individuals, as a declaration of governmental policy in a matter of purely legislative cognizance, to be construed with reference to the intention, object, and purpose of the Legislature.
"For the purposes of this case it matters little whether we regard the act of adoption as a status voluntarily assumed with the parental duties and burdens implied by the statute with the corresponding benefits inuring to the adopted child (R.S. 1899, Sec. 5248), or as a contract of which the child is the beneficiary."
These cases could not have been written as they were had there been no statute conferring upon individuals the right to adopt children by deed or contract. And so with all the other cases cited in the majority opinion, the decisions in which are based, it is said, on equitable principles. They all assume, in view of the statute, the competency of the alleged adoptive parent to create by contract the status of parent and child. But in 1917 (Laws 1917, p. 193) the Legislature repealed outright the adoption statute above referred to and in lien of it enacted one providing for the adoption of children through and by means of an elaborate judicial proceeding. *Page 978 In so doing it withdrew from the realm of contract the creation of the status of parent and child. The majority opinion affirms that this action on the part of the Legislature is without significance and that courts of equity can, and will, still enforce contracts, or quasi-contracts, for adoption.
What has been said is with reference to the legal status of parent and child, from which flows, among others, the right of inheritance. This cannot now be created by contract in this State. Contracts attempting to create such status should not be confused with contracts wherein one person, upon a valuable consideration, agrees that upon his death his property shall go to another as though his heir, or that he will his property to such other. Contracts of this latter character can of course be enforced on common law principles. [Gupton v. Gupton,
Where one upon a valuable consideration agrees that if he dies intestate his property shall go to another, the latter takes under the contract and not by inheritance. The right to take property by descent is a creation of the law. [Carroll's Estate,
"When a child is adopted in accordance with the provisions ofthis article, . . . said . . . child shall be capable of inheriting of said parents as fully as though born to them in lawful wedlock."
Arnold Drake was not a blood relative of James G. Drake, nor was he ever adopted by James G. Drake in accordance with the provisions of the statute: it follows that he could not inherit the latter's property.
As the alleged oral contract made no reference to the disposition of James G. Drake's lands or other property at his death, and as Arnold Drake could not inherit from him, it is clear that the latter has no title to the land sought to be partitioned in this proceeding.
For the reasons herein set forth I am unable to give my concurrence to the majority opinion. White, J., concurs in these views.
Fred Kuchenig v. The California Company , 410 F.2d 222 ( 1969 )
Capps v. Adamson , 362 Mo. 539 ( 1951 )
Hegger v. Kausler , 303 S.W.2d 81 ( 1957 )
Hogane v. Ottersbach , 269 S.W.2d 9 ( 1954 )
Matter of Estate of Van Cleave , 610 S.W.2d 620 ( 1981 )
Long v. Willey , 391 S.W.2d 301 ( 1965 )
Coon Ex Rel. Coon v. American Compressed Steel , 133 S.W.3d 75 ( 2004 )
Goldberg v. Robertson , 615 S.W.2d 59 ( 1981 )
Holland v. Martin , 355 Mo. 767 ( 1946 )
In Re Adoption of Duren , 355 Mo. 1222 ( 1947 )
Menees v. Cowgill , 359 Mo. 697 ( 1949 )
Gamache v. Doering , 354 Mo. 544 ( 1945 )
Ahern v. Matthews , 337 Mo. 362 ( 1935 )
Thompson v. Moseley , 344 Mo. 240 ( 1939 )
Keller v. Lewis County , 345 Mo. 536 ( 1939 )
Benjamin v. Cronan , 338 Mo. 1177 ( 1936 )
Weber v. Griffiths , 349 Mo. 145 ( 1941 )
Bland v. Buoy , 335 Mo. 967 ( 1934 )
Weidner v. American Family Mutual Insurance Co. , 928 S.W.2d 401 ( 1996 )