23 Ind. App. 432 | Ind. Ct. App. | 1899
Lead Opinion
The questions submitted to the court in this case involve the construction of the statute of this
“(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
“(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
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
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
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,
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
- “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.
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
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
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 speci
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
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.
Dissenting Opinion
Dissenting Opinion.
I am unable to concur in the conclusions reached as announced in the prevailing opinion. To sustain that conclusion, a construction must be given to the will of John Miles, which, in my judgment, is so foreign to the manifest intention of the testator, as expressed by the entire will, that violence is done to such intention and object of the testator, and his estate, in part at least, is diverted from the purpose and channel plainly expressed. To hold that appellant, under subdivision twelve of the will, is entitled to share that part of the residue of the estate which Martha Walker, the daughter of the testator, would be entitled to share if-she were living, is to hold that it was the manifest intention of the testator by that provision to ' give to her (appellant), who was alien blood to him, an entire stranger, in fact, not in legal existence at the time the will was made, and within its meaning, an equal share of his. estate.
It seems to me that the crucial test in the construction of wills — the primary and universal rule of .construction, to wit, that the intention of the testator must prevail, has been entirely overlooked by my associates in the prevailing opinion. It is fundamental in the construction of a will that the intention of the testator must prevail, and in arriving at that
In the majority opinion, only parts of the will .are set out, but in view of the general rules and principles relating to the construction of walls, which I have referred to, I deem it important that the entire will here in controversy appear in full in this dissenting opinion. It is as follows:
“Item 1. I will and direct that all my just debts and funeral expenses be promptly paid.
“Item 2. I -will 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 comfortable maintenance and support in sickness and in health and a comfortable and suitable home so long as they or any of them shall
“In performance of the duties imposed by the provisions of my will I hereby authorize my said sons, Thomas J. Miles and John A. Miles, or whomsoever may act in their stead as aforesaid, to dispose of my salable personal property át 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 shall be allowed fair and reasonable compensation for their services, to be allowed and approved by said court.
“Item 3. I give'and devise to my daughter, Martha A. Walker, for and during her natural life, the full and free occupation and possession and all the rents, issues, incomes and profits of the following described real estate situated in the county of Hendricks and State of Indiana, viz.: The east half of the northeast quarter of section twelve, and the east half of the southwest quarter of section eleven, both in township fourteen north, of range one west, and also of the lands included in the following boundaries: Beginning at the half mile stake on the north side of section ten, township and range aforesaid; then south with section bearing 229 93.100 poles to a line cutting off seventy acres on the north side of the southwest quarter of said section ten; thence west with said line 45 93.100 poles to the section line; thence east with said line 45 93.100 poles to the beginning. Also, the west half of the northeast quarter of section ten, in township fourteen north, of range one west, and the west half of
“Item 4. In the event that my said son-in-law, Columbus Walker, shall survive his wife, I give and bequeath the sum of $1,000 to be paid out of any surplus in the hands of my executors.
“Item 5. I give and devise to my son, Thomas J. Miles, the following lands in said county of Hendricks and State of Indiana, viz.: The west half of the southwest quarter of section thirty-six, township fifteen north, in range one west, and twenty acres off of the south end of the east half of the northwest quarter of section thirty-six; also the east half of of the southwest quarter of section thirty-six; also the northwest quarter of said section thirty-six, also the northeast quarter of section twenty-six in said township and range. Also, all that part of the west half of the southeast quarter of section twenty-three, and all that part of the southwest quarter of section twenty-three, which lies south of the middle of White Lick creek and which belongs to me. And also, all the lands I own in the northeast quarter of section thirty-six, township fifteen north, range one west.
“Item 1. I give and devise to my son Samuel W. Miles, the following lands situated in the county of Hendricks and State of Indiana, viz.: The west half of the southwest quarter of section two, township fourteen north, range one west, and so much of the southwest quarter of the northwest quarter of said section two as lies south of the public road leading from Belleville to Clayton. Also, the east half of the southeast quarter of section three, township.fourteen, range one west; also the west half of the northwest quarter of section eleven; and the southeast quarter of the northwest quarter of said section eleven; also the east half of the northeast quarter of section ten, township fourteen north, range one west.
“Item 8. It is my will and I hereby direct that the lands hereinbefore devised to my three sons, to wit, Thomas J. Miles, John A. Miles, and Samuel W. Miles, shall be appraised within a reasonable time after my decease by three disinterested men to be agreed upon by my said sons who shall fix and set upon said several tracts of land the cash value thereof, without taking into account any buildings or perishable improvements thereon. And that if there be a difference in the value thereof, those of my said sons who receive the least in value of said lands shall be made equal with the other out of my estate as hereinafter provided.
“Item 9. I will and direct that my executors hereinafter named shall make sale either at public or. private sale, as they may deem best, of the following lands situated in said county of Hendricks and State of Indiana, viz.: A part of the northwest quarter of section one, township fourteen
“Item 10. I give and devise to Oscar Stierwalt, $100, to be paid out of any surplus at any time in the hands of my executors.
“Item 11. It is my will, and I hereby expressly declare it 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 duly 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 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 the real estate which is hereby devised to my children.
“Item 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 all 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.
“Item 13. I hereby nominate and appoint my two sons, Thomas J. Miles and John A. Miles, the executors of this my last will and testament.”
From the special finding of facts, and the will itself, it appears that the will was executed June 2, 1883; that
When a child is legally adopted under the law of this State, the relation of parent and child is thereby created, and such adopted child will inherit under the laws of descent from its adopting parent as though it were a child lawfully bom to such parent. As to this proposition, there seems to be no doubt. Davis v. Fogle, 124 Ind. 41, 7 L. R. A. 485; Humphries v. Davis, 100 Ind. 274. I think it equally plain also that such an adopted child cannot, under the laws' of descent, .inherit from the ancestors of the adopting parent. This is obvious by analogous reasoning when we consider the fact that a parent of a natural child, who dies without issue, inherits the property of such child regardless of the source from which it was acquired; while the adopting parent only inherits such property as has come to the adopted child through the adopting parent, and all other property of the adopted child goes to its kinsmen of the same blood. Humphries v. Davis, supra; Davis v. Fogle, supra. An additional instance showing the status and rights of a nat
As stated in the majority opinion, the common law made no provision for the adoption of children, and at common law the adoption of children was unknown. As to the rights and status of an adopted child, we must therefore look to the statutes, under which the relations of the adopting parent and the adopted child are created. At common law, the right of inheritance was recognized, and it only existed' in the line of natural blood. The right of inheritance, therefore, -which follows' from the relations created by the statute authorizing the adoption of children, is a right in derogation of the common law, and such statutory -rights, together with the statutes creating them, must be strictly construed against the person asserting such rights. The law of descent in this State is regulated by statute, and like the common law of inheritance it is based upon natural or blood relationship, as a rule of succession according to nature, which has prevailed for all time. An heir, in legal contemplation, is a creature of common law, while a child by adoption is a creature of statutory -law. Keegan v. Geraghty, 101 Ill. 26; Wallace v. Rappleye, 103 Ill. 229; In re Jessup’s Estate, 81 Cal. 408, 21 Pac. 976, 6 L. R. A. 594.
It has been held, and I think correctly, that ah adopted child remains only such, and obtains such right of inheritance only as is prescribed by statute, but yet does not become
In Vol. 24 Am. & Eng. Ency. of Law 424, referring to statutory enactments for the adoption of children, it is said: “The general effect of these statutes is that the adopted child becomes entitled to succeed to the estate of the adopting parent in the same manner as if it had been a child of the blood of such parent. * * * And, indeed, the general effect of the decisions is to deny the right of the adopted child to succeed to the estate of any member of the adopting family other than the adopting parents. So, it has'been held that an adopted child does not succeed to the estate of the adopting parent’s ancestors, nor to the estate of children
Children born to the adopting parents do not become brothers or sisters, as the case may be, to the adopted child, and neither can the one inherit from the other. While a child acquires certain additional rights because of the adoption under a statute, there is nothing in the act of adoption which takes away existing rights, and, on becoming entitled to inherit from its adopting parents, the adopted child does not thereby lose its right to inherit from its natural parents. Vol. 24 Am. & Eng. Ency. of Law, 425; Wagner v. Varner, 50 Iowa 532.
It might be profitable to review the statutory provisions of some of the states relating to the adoption of children in comparison to our own statute upon that subject, but time forbids. As was said in Markover v. Krauss, 132 Ind. 294, 17 L. R. A. 806: “There is, however, but little, if any, uniformity in the various statutory provisions, and a study of the several statutes, with the constructions given them by the courts, gives us but little light on the point of difficulty.” The provisions of our statute, so far as the questions here involved are concerned, are as follows: §837 Burns 1894: That “from and aftér the adoption of such child it shall take the name in which it is adopted and be entitled to and receive all the rights and interest in the estate of such adopting father or mother, by descent or otherwise, that such child would if the. natural heir of such adopting father or mother.” And the following section provides: “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.”
In the several .cases of Barnes v. Allen, supra, Isenhour v. Isenhour, 52 Ind. 328, Keith v. Ault, 144 Ind. 626,
It is true, as shown in the prevailing opinion, that in Sewall v. Roberts, 115 Mass. 262, a rule of construction was announced directly opposite to that announced in Schafer v. Eneu, supra. An examination of that case, however, discloses the fact that the statutory provision in Massachusetts regulating the adoption of children is much broader, and confers additional rights upon an adopted child, which are not given either by the statute in Pennsylvania or this State. The Massachusetts statute declares that an adopted child “shall be deemed, for the purposes of inheritance by such child and all other legal consequences and incidents of the
It seems clear to me that the subsequent amendment of the'statute was made by the legislature because it had been demonstrated by the construction placed upon it in Sewall v. Roberts, supra, that it was too broad and comprehensive and conferred rights upon adopted children that the legislature did not intend to confer, and the amendment was made to avoid the consequent evil which might result1 therefrom. "While the decision in that case declared the law, as applied to the particular facts and the statute as it then existed, yet, in my judgment, the rule there announced is not binding here, and is not authority. In a later case, after the statute was amended, the last cited statute and the Bewail v. Roberts case were under consideration, and the court said: “These provisions made a material change in the law as to the rights of adopted children, and therefore the decision of Sewall v. Roberts, 115 Mass. 262, does not aid us in the present inquiry.” Wyeth, v. Stone, 144 Mass. 441. While this case does not decide the question at issue, the reasoning of the court in discussing the facts is so forcible and able that it is worthy of some space in this opinion. The facts, as fairly stated by counsel for appellee, are as follows: In this case one Jaiel Baker died in 1813, leaving a widow and no children except an adopted daughter, Eliza Stone. By his will he left all his property to a trustee who was directed to pay all the income to his wife during her life, and by the second clause of his will he gave, at the death of his wife, certain pecuniary legacies to her nephews and nieces. The. third clause of the will is as follows: “After payment of the foregoing legacies, I give, bequeath and devise all the remainder of my estate to my adopted daughter, Eliza Stone, wife of Howard Stone, of said Waltham, in her own right; but if
The ease of Keegan v. Geraghty, 101 Ill. 26, is instructive as to the relations between an adopted child and the adopting parent.' The question at issue in that case was one of descent under the statute of Illinois, as to the right of an adopted child to inherit from children by birth of the adopting parent, and illustrates with what strictness such statutes will be construed as against the adopted child. In the opinion, the court said:- “But a majority of the states of the Union have enacted statutes of adoption. There is not uniformity in such statutes. In no two of them, perhaps, are the new rights and obligations precisely the same. * * * Our statute of adoption provides that the child adopted shall be deemed, for the purpose of inheritance by such child, the child of the parents by adoption, etc. ‘For the purpose of inheritance of such child/ from whom? The statute does not say, but we say, from the adoptive parents. We think it must be so limited from the nature of the proceeding, the
Appellant has cited many cases involving the right of an adopted child to inherit from its adopting parent. The rule fixed by the decisions in those eases, I most heartily concede, and cheerfully accept as the law; but such cases do not throw any light upon the question here presented. In the prevailing opinion, many of those cases are cited and commented upon, and as they are not of controlling importance here, I do not deem it necessary to refer to them or to discuss them at any length. There is one case, however, I desire to mention, Van Matre v. Sankey, 148 Ill. 536, 36 N. E. 628, 23 L. R. A. 665, 39 Am. St. 196. The question at issue there was one of descent from the adopting parent to the adopted child. Eollowing the decision in that ease, as reported in the last cited report, is the following note: “Very often, in wills, property is devised to a specified person, and, after his death, to his heirs or next of kin, or to his heirs at law, and then in the event of his having an adopted child, the question is, whether such child is included within these words, and therefore entitled to the benefit of the devise or bequest.' In the absence of circumstances tending to show that the testator anticipated' the adoption,' or knew that it had already taken place, and therefore probably intended to treat the person adopted as a possible beneficiary, the decisions generally exclude the adopted child from the benefit of the will.” Jenkins v. Jenkins, 64 N. H. 407, 14 Atl. 557; Morrison v. Sessions, 70 Mich. 297, 38 N. W. 249, 14 Am. St. 500; Reinders v. Koppelman, 94 Mo. 338, 7 S. W. 288; Schafer v. Eneu, 54 Pa. St. 304; Wyeth v. Stone, 144 Mass. 441, 11 N. E. 729. In Jenkins v. Jenkins, supra, it was said: “If the adopted child, not'being an
heir, can by statute be created one for the purpose of inheritance, such a statute can not be used to defeat the manifest intention of the testator, which is controlling in the construction of wills.” In many cases it is correctly held that
I have tried to show in this dissenting opinion, and feel that I am abundantly sustained by the great weight of the' authorities, that the word “child”, as used in thé will; does not include the adopted child of a residuary legatee, who is made by the will a distributee under it. I am clearly of the opinion that under all the rules for the construction' of wills, appellant can not, by the will itself, be designated or identified as a legatee. It is the rule that words occurring more than once in a will must be presumed to be used in the same sense, unless a contrary intention appears by the context. Thus in Jarman on Wills, in his chapter on general rules of construction, it is said: “That words occurring more than once in a will shall be presumed to be used always in the same sense, unless a contrary intention appears by the context, unless the words be applied to different subjects.” And it was so held in State Bank v. Ewing, 17 Ind. 68. On examination of the will in this case, it will be found that'the word “children” occurs four times, and only in item twelve.1 After the several bequests made, preceding item twelve, which disposed of all the testator’s estate except an undetermined surplus, he first directs that such surplus shall be distributed among his several children, Martha, Thomas J., John A. and Samuel W., and that they shall share alike in such distribution. Then the will provides that in the' event of the death of either of the parties named, the shares due such as are deceased shall go to the children of such deceased person, if there be children, and if there be no such children, then such shares shall go to the survivors. It will
When the will in question is measured by the general principles I have stated and discussed, and which are supported by the authorities, and when we apply to it the rules of construction adhered to by the courts, I do not see how it is possible to construe it as expressed in the prevailing opinion, so that appellant can become a legatee under the provisions of item twelve. To my mind, and according to my judgment, the construction so placed upon it is a forced one, and does violence to the manifest and clear intention of the testator. John Miles had accumulated a comfortable fortune, both in real and personal property. He had raised a family of four children, who had grown to manhood and womanhood. These children had doubtless labored for him and by their labor materially aided him in amassing his fortune. By his will, he disposed of all his property. Throughout the entire instrument, the fact that the particular, special and, with two exceptions, the full and whole
In concluding this dissenting opinion, which has been extended far beyond my first intention, I conclude by again saying that the intention of the testator is to be collected from the whole will together, and the language used is to be construed in reference to and in connection with the circumstances surrounding the testator at the time of the execution. Every will also should be interpreted, as far ds possible, from the standpoint apparently occupied by the' testator. In addition to the authorities above, I cite the following: Schouler on Wills, §§466, 469; Smith v. Bell, 6 Pet. 68; Blake v. Hawkins, 95 U. S. 315; Brown v. Thorndike, 15 Pick. 388; Postlethwaite’s Appeal, 68 Pa. St. 477. Taking and construing the will as a whole, interpreting it as far as possible from the standpoint of John Miles, looking at and considering the circumstances surrounding
Entertaining, as I do, no doubt respecting the intention of the testator, as plainly, clearly and manifestly expressed in his will, to give in equal portions the residue of his property to his own children, and the children of those who might die, and that it was not his intention to include appellant, who was not known to -him, who was of alien blood, an entire stranger, I hold that she has no claim upon his estate as a legatee, or otherwise, and' is not entitled to share in its distribution. The judgment should be affirmed.
Dissenting Opinion
Appellees have petitioned for a rehearing and have based the same upon six grounds, viz.: (1) That the court erred in construing the statute of the State concerning the adoption of children; (2) that the court erred in construing the will of John Miles; (3) that the court erred in holding that the word “children”, as used in the will, meant and included the adopted child (appellant) of the testator’s .daughter, Martha Walker; (4) that the court erred in that it did not, in the construction of the will, give effect to the intention of the testator, but on the contrary defeated his intention; (5) that the court erred in holding that appellant is a devisee or legatee of the testator, John Miles, and (6) that the court erred in adjudging that the facts specially found entitled appellant to judgment.
The petition for a rehearing is supported by a very able brief, and in view oí the fact that the majority of my associates still adhere to the conclusions reached in the prevailing opinion, and hence affirm as the law the several propositions thereby established, I deem it important and proper to make some additional observations upon the very important and interesting questions at issue. I am so thoroughly convinced that the rules announced in the prevailing opinion are in conflict with the law, as established by the great weight of authorities, that I can not let them pass without more fully expressing my views.
In my original dissenting opinion I stated that the construction placed upon the will .of John Miles in the majority opinion was so foreign to the manifest intention of the testator, as plainly expressed by his whole will, that violence was thereby done to such intention; and also to hold that under the will appellant was entitled to share in the residue of the estate to which Martha Walker would be entitled, if living, was to hold that it was the manifest intention of the-
In Jackson v. Hoover, 26 Ind. 511, the court quoted approvingly from Jarman on Wills as follows: “That all parts of a will are to be construed.in relation to- each other, and so as, if possible, to form one consistent whole. Courts will look to the circumstances under which the devisor makes his will, as the state of his property, of his family and the like.” In no sense could the heirs of Martha Walker be the heirs of John Miles, unless they were of his blood. When he used the-words “my heirs at law”, he meant simply what the law implies, — heirs of his own blood. It is only by extending the word “child” far beyond its primary, etymological and legal signification that it can be held that John Miles said by -his will, and thereby intended to say, that a child of an entire stranger to him was to him his daughter’s child in the sense of being entitled to share in'
Taking the meaning of the word as thus defined, how is it possible, within the light of the authorities, to single out the word “children” in item twelve, and conclude that appellant was one toward which the testator’s mind was1 directed; or that with great earnestness, and of choice, his mind fixed its view on appellant, when he executed his will? Yet this must be done before appellant can be included in the word .thus used. Such reasoning is seems to me is paradoxical. To go entirely outside of the meaning of the word “children”, and against the unmistakable evidence of the intention of the testator, as expressed by the general terms and provisions of his will, it appears to me that there is neither reason nor legal precedent by which the court can single out a detached and isolated word, or provision, and by that declare that because the testator used the word “children” he meant to go outside of the class of persons hé uni
In Edgerly v. Barker, 66 N. H. 434, 28 L. R. A. 328, the court on page 449 used the following language: “Correct construction is not insured by correct views of the law. A testator’s right to use the words in the sense in which they are commonly understood may be infringed when that sense is not known to his judicial interpreters, or is disparaged by their educational bias. The professional and official sense sometimes introduced by construction is in effect a scholastic dialect not used by the mass of the people.” As I showed in my former opinion, the intention of the testator, as gathered from the will itself, when the will is read in the light of the circumstances and environments at the time of its execution, is in the last analysis and in every instance the objective point of judicial inquiry. The law will not deny to the reader of an instrument the same light that the writer had. In view of this rule, the inquiry naturally suggests itself, what did the word “children” mean to John Miles, when he signed the will? I have no doubt, in the light of the whole will, and the circumstances and, environments that surrounded him, that it ineant to him just what the ordinary man understands it to mean, and, as used by him, it meant the natural offspring of his children. It certainly did not mean to him artificial children. ~We can not presume that he employed the word in any technical or professional sense. There is an expression in the Bible to the effect that the sins of the father shall be visited upon the “children’s children to the third and fourth generations.” If we construe the word in the light of the prevailing opinion, then the sins of John Miles are to be visited upon the adopted child
When we consider the meaning of the word “children” to be natural offspring, as fixed by law writers and judges of great learning, and as used by the sages of the law for centuries, it does not appear to me that when John Miles, who was ignorant of the law and unversed in its technicalities, but who used the word as he understood it, and in its primary, usual, and ordinary sense, such meaning as he gave it should be allowed to stand, and that his intention, as expressed by his will, ought not to be subverted by a forced and technical construction.
Appellees’ reasons for a rehearing are, in my judgment, well taken, and the petition should be granted.
Rehearing
On Petition fob Reheabing.
The learned and forceful brief in support of the petition for a rehearing would seem to exhaust the authorities and reasons to be adduced in support of appellee’s view of this cause. While additional citations are given and instructive comment made upon the.numerous authorities referred to, it is proper to say that the court by oral argument and able briefs had had urged upon its consideration the reasons for affirming the judgment of the lower court presented in support of the petition for a rehearing. For this reason we do not deem it necessary, however interesting it might be, to consider in detail the same propositions so ably re-discussed. Let it suffice to say that after a review of the authorities and a careful consideration of the reasons set out in the petition, and the briefs in support thereof, we are of the opinion that the decision should stand. Petition overruled.