76 So. 267 | Miss. | 1917
Lead Opinion
delivered the opinion of the court.
On the 15th day of July, 1901, Church W. Bule and his wife, Lula A. Buie, who were then living and having their domicile in Sunflower county, Miss., and then being without children, and being in the state of Kentucky, presumably on a visit there, on said date signed what is called in the record “articles of adoption.” This adoption was signed jointly by Church W. Buie and his wife on the one part and the Louisville Baptist Orphans’ Home, by its president, on the other part, by which Church W. Bule and his wife, Lula A. Bule, are said to have adopted a child, then about three years of age, and an inmate of said institution, named Lula May Browning. By said adoption the said Bule and wife obligated themselves to adopt the said infant, Lula May Browning, “and do hereby adopt said Lula May Browning, and covenant with said Louisville Baptist Orphans’ Home that said Lula May Browning shall bear from this time forward the same legal relation to them as if she had been born unto them, and were their child, especially as to such property as would descend to her were she their child.”/ After signing said articles' of adoption, Church W. Bule and his wife took the said infant to their home in Sunflower county, Miss., and there it occupied the relation of child to them, and was treated by them as their child, up to the time of their deaths, respectively.
It appears that the Louisville'Baptist Orphans’ Home was chartered and incorporated by an act of the G-eneral Assembly of Kentucky, approved January 28, 1870
On August 9, 1898, Mrs. M. J. Rule, the mother of Church W. Rule, died in Sunflower county, Miss., leaving a considerable body of land which descended upon her death to her children, one of whom was Church W. Rule. Church "W. Rule died February 7, 1903, leaving his wife and the adopted child, Lula May Browning, but no children born to himself and wife. In 1903 there was a suit filed in the chancery court of Sunflower county for a partition of the lands left by Mrs. Mary J. Rule, mother of Church W. Rule,' among the heirs then surviving, and the widow of Church W. Rule and Lula May Browning Rule were made parties. In this suit in the chancery court the bill of complaint filed contained the
“The said minor, Lula May. Browning Rule, was never adopted by any proceedings in court according to fhe laws of the state of Mississippi, but said Church ~W. Rule and his wife, Lula A. Rule, made their certain contract in writing with Louisville Baptist Orphans’ Home bearing date of 15th of July, 1901, executed in ■triplicate and signed by the said Church W. Rule and Lula A. Rule and the said Louisville Baptist Orphans’ Home. By said contract it was agreed that the said Church W. Rule and his wife, Lula A. Rule, should adopt, and they did thereby adopt, said minor, whose name at that time was Lula May Browning, and that the said Lula May Browning should, from that time forth, bear the same relation to the said Church "W. Rule and his wife, Lula A. Rule, as if she had been born unto them and were their child, especially as to such property as would descend to her if she were their child. Complainants file herewith a copy of this contract as a part of this bill, and mark the same ‘Exhibit A.’ Complainants allege that from that time up to the time of the death of the said Church W. Rule the said Church W. Rule and his said wife have had the care, custody, and control of the said minor, and the said child is now in the care and custody of said Lula A. Rule. Tour complainants advise that by said articles of adoption, although there have been no proceedings in the court, the said child is entitled to have a child’s part in the said estate of Church W. Rule, but complainant, Lula A. Rule, submits this question for decision of this court: “The said Lula A. Rule is now the legally appointed guardian of the said Lula May Browning Rule. . It is asked that your honor may adjudicate whether the minor, Lula May Browning, has an interest in the said estate.’ This bill- of complaint being filed by Lula A.*362 Buie and others in cause No. 1100 of the chancery court docket of Sunflower county, Miss.”
The prayer of the bill, among other things, asks that “your honor may adjudicate whether the said Lula May Browning Bule has an interest in the said estate.” A guardian ad litem was appointed for the minors in the suit, including Lula May Browning Bule, and the answers of the guardian ad litem submitting the interests of the minors to the protection of the court and praying that the allegations of the bill be required tó be substantiated by strictly legal proof. The Chancellor rendered a written opinion in which he held that Lula May Buie was in fact adopted by Church W. Bule and his wife, and as such adopted child inherited one-half of the estate and lands in Mississippi of Church W. Bule, and in the decree of partition set apart one of the four shares to Lula A. Bule and her adopted child, Lula May Buie, and from this decree there was no appeal prosecuted, and the right to an appeal has long since been barred by the statute of limitations. After this decree, and on the 29th day of November, 1905, the infant, Lula May Browning Buie, died. Mrs. Lula A. Buie, after the death of Church W. Buie, married one J. B. Fisher, and after such marriage Lula A. Buie Fisher, formerly the wife of Church W. Buie, died, leaving her husband, J. B. Fisher, who was one of the parties to the former appeal in this cause, but who since said appeal has disposed of his interest and claims to other appellants in this case. Subsequent to the death of Lula A. Buie Fisher, the brothers and sisters by natural blood of Lula May Browning Buie filed their bill in the chancery conrt, praying for a partition of the lands set apart to Lula A. Bule and Lula May Browning Buie by the cause No. 1100 jointly to be divided between the brothers and sisters of Lula May Browning Buie by the blood, and the appellants are original defendants in said suit. This bill for a partition.
Several questions are presented now for consideration, among which the following may be stated: Is the opinion of this court on the former appeal conclusive on the court now under the doctrine of the law of the case? Second. If not, was Lula May Browning entitled to inherit from the adopted parents, Church W. Bule and
As to the first ground, whether or not the former decision of this court constitutes the law of the case in such sense as this court on this appeal is bound to follow it is not free from difficulty because of the well-recognized rule that the court, ordinarily, after having laid down principles governing a case on one appeal, will not review its holdings on a subsequent appeal, but will ordinarily adhere to its former decision and not inquire into its correctness. We do not think, however, that this rule is so fixed and binding upon the court that it may not depart from its former decision on a subsequent appeal if the former decision in its judgment after mature consideration is erroneous and wrongful and would lead to unjust results. Where the facts are the same,- and where there has been no chang*e of conditions or situations as that a change of decision would work wrong and. injustice, the court may, on the subsequent appeal, correct its former decision where it is manifestly wrong. In the present case there is no such change of condition as would inflict any hardship upon any party or person, and we are satisfied that the court reached the wrong conclusion in its former opinion. This court has, on more than one occasion, departed from its first announcement on subsequent appeal of the same case where there had been no change of conditions, or accrual of other rights that would be harmed or prejudiced by the other decision. In Maxwell v. Harkleroad, 77 Miss. 456, 27 So. 990, this court said: \
“It is further, in justice to the learned chancellor be-\ low, to be said that the decree rendered by him was induced by the opinion (formerly delivered by the writer*365 hereof) of this court. It is not a duty merely, but a pleasure, to correct error at the earliest possible moment, and we are glad of the opportunity to do this in this case, while it is still pending undetermined.”
See, also 2 E. C. L. p. 226, section 188, where it is said:
“The better rule, and that more in accord with justice, is that, though ordinarily a question considered and determined in the appeal is deemed to be settled and not open to re-examination, on a second appeal it is not an inflexible rule, and if the prior decision is palpably erroneous, it is competent for the court to correct it on the second appeal.”
See, also, Missouri, K. & T. R. Co. v. Merrill, 65 Kan. 436, 70 Pac. 358, 59 L. R. A. 711, 93 Am. St. Rep. 287, where Justice Smith, speaking for the court, says:
“Counsel for defendant in error . . . insists that the former decision must govern on the second appeal. This would come to us with more force if we were not now considering the same case with the same parties before the court. If an erroneous decision has been made, it ought to be corrected speedily, especially when it can be done before the litigation in which the error has been committed has terminated finally. ”
See, also, Ellison v. Georgia Elec. Co., 87 Ga. 691, 13 S. E. 809 (where Bleckley, C. J., says: “The only treatment for a great and glaring error affecting the current administration of justice in all courts of original jurisdiction is to correct it. When an error of this magnitude, and which moves in so wide an orbit, competes with truth in the struggle for existence, the maxim for a supreme court, supreme in the majesty of duty as well as in the majesty of power, is not ‘Stare decisis,’ but ‘Fiat justitia mat coelum’ [Let right be done, though the heavens should fall] ”); Messinger v. Anderson, 225 U. S. 436, 32 Sup. Ct. 740, 56 L. Ed. 1152 (where the supreme court of the United States said: “In the absence of statute, the phrase ‘law of the case,’ as applied to the effect of previous orders on the later action of the court rendering
The opinion of Cook, J., in Johnson v. Machinery Co., 104 Miss. 217, 61 So. 178, 62 So. 4, is pressed on us as being conclusive on us on the law of the case as applied to this appeal.. We. think the language used in that opinion as to the binding effect of a decision on first appeal is too broad. We do not approve of that portion of the opinion which states:
“If the decision of the court upon the original appeal was made upon a record which, in .all substantial particulars, was the same as now before us, we must decide now as we decided then, however wrong we may believe the court was in the first instance. This is the law, and we do not question its wisdom; nor do we wish to evade rules in order to right a real or imaginary wrong.”
We think courts are created and maintained and sworn to administer justice, and not to adhere strictly to arbitrary rules. When a rule of decision defeats justice or seriously impairs it, it should be departed from rather than followed. Rules are made to secure justice, not defeat it. We think the rule of “the law of the case’ is a good rule of practice, and should be followed, except in rare cases where the decision is manifestly and palpably erroneous and to follow it would result in grave injustice being done.
The decree of the chancellor in cause 1100, being res •adjudicata, established the status of adoption between parent and child under the laws of Kentucky! and it was by virtue of this status so established by our state court that the child took the one-half interest in the property of the deceased adoptive father pand by virtue of the same status the adoptive mother took the child’s interest in the property at its death. If the adjudication
As to the second proposition as to whether or not Lulu May Browning Rule, the adopted child, was entitled under the facts stated to inherit from the adoptive parent Church W. Rule, the former opinion held that to permit such inheritance would violate the public policy of this state, and while, under the law of Kentucky the adoption had the effect of conferring upon the adopted child full capacity to inherit lands or personal property in Kentucky as a natural child, still it was contrary to the public policy of Mississippi for such child to inherit lands in Mississippi, and that the rule of comity would not require the state to adopt the Kentucky law upon that subject, or recognize the status of parent and child created under the laws of Kentucky by reason of the adoption. J The court on this subject says:
“We recognize that the weight of authority and trend of modern decisions is to the effect that every other state will recognize the status of the state creating it, and will give effect to it just as if that status were created under the law of the state where it is invoked, but provided always .that the status and the rights flowing from it are by laws of the state which are in harmony and consistent' with the laws and public policy of the state where it is invoked, and that therefore Mississippi will recognize the status of the child, created in Kentucky, as the adopted child of Church W. Rule, and will enforce all the rights of the child in that situation here, provided the rights flowing from that adoption in Kentucky and the laws of that state on the same subject are not inconsistent with or •opposed to the laws or public policy of this state on the same subject. . . . We do not believe, however, that this child was capacitated by the adoption in Kentucky*368 to inherit lands in Mississippi, because the laws of Kentucky are inconsistent with and antagonistic to our Constitution and laws on the same subject, and to the public-policy of Mississippi on that subject, as such public policy is found in our statutes and Constitution, and for that reason we do not believe that Mississippi is bound to recognize this adoption by contract, as it was made in Kentucky, to be valid and binding in Mississippi as to confer upon the child the capacity to inherit lands in Mississippi. ’ ’
If we understand the opinion in the former case, it holds that it would be inconsistent with the laws and Constitution of Mississippi for an adopted child to inherit lands under the statutes of Mississippi; The court seems to-have been of the opinion that it was not possible for an. adopted child, adopted under the laws of Mississippi, to inherit as an heir of the adopting parent. We are at loss, to understand how the court reached this conclusion, in view of the previous decision of W. T. Adams v. America Adams et al., reported in 102 Miss. 259, 59 So. 84 Ann. Cas. 1914D, 235, where this court held that, where a petition was filed under the Code pertaining to the adoption of children, seeking the adoption of a minor, and a decree-was entered providing that the custody of the minor be awarded to the adopting father, and that he be clothed with all the rights and bound by all the obligations with reference to said child as that of a parent, and that said child be clothed with all the rights and bound by all the obligations with reference to the adopting father and his estate, real and personal, at his death, as that of a daughter, and that.the name of the child be changed to that of the adopting father, holding that such a decree under our laws creates a relationship of heir on the part of the-adopted daughter. It is therefore not contrary, to the Constitution,' laws, and public policy of Mississippi for a person to adopt a child so as to make it an heir and capable of inheriting both real and personal property.
“As indicated in those notes, the decision of the . . - court in Finley v. Brown, giving effect to the foreign adoption for the purposes of - inheriting real estate in-Tennessee, is sustained by the weight of authority in this; country.”
See, also, as supporting this doctrine, 17 L. R. A. 435; 65 L. R. A. 186; 8 L. R. A. 747; 8 L. R. A. (N. S.) 117: 19 L. R. A. 201; 20 L. R. A. 199; 21 L. R. A. 380, 483; 23 L. R. A 196, 665; 27 L. R. A. 791; 30 L., R. A. 263; 33 L. R. A. 207, 34 L. R. A. 500; Humphreys v. Davis, 100 Ind. 369, 50 Am. Rep. 788.
In our view it would be unjust to both parent and child under the adoption made such by the law of one state in which they are given full right of parent and child to hold that the mere fact of moving to another state wouM unset and unsettle this relationship. It is of the utmost importance that the status of-this character should be maintained so far as it is possible to do it without doing violence to' the laws and institutions of the state wherein the parties have moved/ It was undoubtedly the intention of Church W. Rule and his wife in adojtinp’ this child to-give the child all the rights of a natural child and this intention should be carried out to the fullest extent permitted by the laws of this state. Under the Kentucky law the adopted child (adopted in the manner this one was),, inherits from the adopting parent as a natural child and is for all legal intents and purposes-the real child of the adopting parent, and under the laws of that state the adopting parents are the heirs of the adopted child in the case of the death of the child without issue and inherit from the child all property which it had derived from the
In Wagner v. Varner, 50 Iowa, 532, the court said that, upon the death of an adopted child intestate and without wife or descendant, may its heirs at law be sought in the family under which it was born or in the family of which it became a part by adoption? Has its relationship with its natural parents been disturbed by the act of adoption by which they relinquish' all control over it and consents that it should become in law the child of others? So far as its rights of inheritance are concerned they probally extend to both families to the extent of entitling it to inherit
Judge Freeman,the able annotator of the American State Beports, in a note to Van Matre v. Sankey, 39 Am. St. Rep. 228, 229, in commenting upon decisions holding that the adopting parents could not inherit from the adopting child said:
“The vice of these decisions, in our judgment, lies in the fact that the courts making them gave too strict a construction to statues of adoption, and were unwilling to 'concede that such statutes had any other object than to confer the benefit of heirship to the adopting parent upon the child adopted. The purpose of these statutes we*373 conceive to extend further than this, and, in effect, to take the child from its parents by birth, and to give it to the parents by adoption, and to create, as between it and such parents, the reciprocal rights and relations of parent and ■child, and to give to the former both the incidental and the ■direct advantages of parentage; and we therefore think that, upon the death of such child intestate and leaving estate which, by statute, vests in its parnts, that the word ■‘parents,’ as thus used, should he deemed to designate the adopting parents,rather than the parents by birth; for, under the law, it is the former, rather than the latter, who ■occupy-the relation of parent to the child at the time of its •death. ”
Judge Elliott, speaking for the supreme court of Indiana, in Humphries v. Davis, 100 Ind. 274, 50 Am. Rep. 788, uses this language:
“It is, as we have seen, the legal status of the person respecting the subject that determines his legal rights. To •again quote from Austin: ‘The law of persons is the law of status or conditions. . . . The rights and duties, •capacities and incapacities, which constitute a status or condition, are commonly considerable in number and various in kind. . . . Such are the rights and duties, ■capacities and incapacities, of husband and wife, parent and child, guardian and ward.’ 2 Austin, Jurs. 709, 711. As the status of the surviving husband and adoptive father is that of father, his interest in the land which the deceased child held in virtue of the rights vested in it by •adoption is that of a father, since it is of that property, as the subject, that the statuts of parent and child is predicated. This is a just as well as a logical result. It is not to be presumed that the legislature meant to violate logical rules by creating the legal relation of child without the corresponding one of parent, nor that they meant to thrust out the surviving husband and father for the benefit of a person that was a stranger to the ancestor who was the .source of title.”
Reversed, and judgment here.
Dissenting Opinion
(dissenting). Every question presented to us for decision by'this record was expressly decided against appellants on the former appeal herein, and should not now be open to review, for it is a rule of general application, heretofore announced and acted upon over arid over again by this court, that:
“The decision of an appellate court in a case is the law of that ease on the points presented throughout all the subsequent proceedings in the case in both the trial and the appellate courts, and no question necessarily involved and decided on that appeal will be considered on a second appeal or writ of error in the same case, provided the facts and issues are substantially the same as those on which the first decision rested.”
The res judicata and law of the case rules are very much akin, were formulated to accomplish the same object, and are each based “upon two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the interest of the state that, there should be an end to litigation, ‘interest reipublicce ut sit finis litum’; the other, the hardship on the individual that he should be vexed twice for the same cause, Nema
There would be no end to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to criticisms on their opinions, or speculate on chances from changes in its members.”
Among the many cases in which the rule has been followed by this court are: McDonald v. Green, 9 S. & M. 138; Green v. McDonald, 13 S. & M. 445; Smith v. Elder, 14 S. & M. 100; Bridgeport et al. v. Gray, 39 Miss. 136; Swan v. Smith, 58 Miss. 875; Still & Still v. Anderson, 63 Miss. 545; Nutt, Adm’x, v. Knut, 84 Miss. 465, 36 So. 689; N. Y. Life Ins. Co. v. McIntosh, 46 So. 401; Johnson v. Success Brick & Machine Co., 104 Miss. 217, 61 So. 178, 62 So. 4; Supreme Lodge, K. P., v. Hines, 109 Miss. 500, 68 So. 485; Cochran v. Latimer, 111 Miss. 192, 71 So. 316.
In the majority opinion the existence of the rule is admitted, but it is said that:
*376 “We do not think, however, that this rule is so fixed and binding upon the court that it may not depart from its former decision on subsequent appeal if the former -decision in its judgment, after mature consideration, is erroneous and wrongful and would lead to unjust results. ’ ’
This statement is in direct conflict with all of the former announcements of this court upon this subject, and it is founded upon a total misconception of the purpose sought to be accomplished by the rule, which is not to prevent the reversal of former judgments unless such judgments are erroneous and mischievous, but to cut ■off any inquiry at all into the rightfulness or wrongfulness thereof. On the second appeal in Swan v. Smith, 58 Miss. 875, the correctness’ of the judgment rendered on the first appeal was called in question by the appellant, and in responding thereto this court said:
‘ ‘ Even if our former decision on this point was wrong, it must be accepted as the law of this case.”
Similar and even more emphatic language was used in Nutt v. Knut, 84 Miss. 465, 36 So. 689; Ins. Co. v. McIntosh, 46 So. 401; Johnson v. Success Brick & Mch. Co., 104 Miss. 217, 61 So. 178.
It is said, however, in the majority opinion that:
“This court has on more than one occasion departed from its first announcement on subsequent appeal of the same case where there had been no change of conditions, or accrual of other rights that would be harmed or prejudiced by the other decision.”
But the only case cited in support of this statement is Maxwell v. Harkleroad, 77 Miss. 456, 27 So. 990. The law of the case rule was not involved on the second appeal in that case, and it constitutes no sort of authority for the statement that this court has heretofore departed therefrom. In that case a bill in chancery was filed by Harkleroad, as guardian, against Maxwell, a
■ “When the case was here before it was presented on ^demurrer, furnishing another of many illustrations of the unsatisfactory nature of such defense, when all the-facts set up by answer would make clear the right decision. This guardian is entitled, as the facts now show, to the highest praise for exceptionally faithful and skillful management of this estate.”
It clearly appears, therefore, that on the second appeal the case presented by the evidence was materially different from that presented by the' allegations of the bill on the first, and no court, so far as I am aware, has ever held that the law of the case rule applies to such a situation. The simple truth of the matter is that the rule does; not meet with the approval of the majority of the judges-of this court as now constituted, and the opinion herein rendered by that majority, while professing not to d-o so,, in fact repudiates the rule, overrules without giving any of them, save one, ‘‘ even the cold courtesy of a passing glance,” the long and unbroken line of decisions of this; court announcing and following it, and aligns this court with those courts which determine whether a decision
Coming now to the former decision in this case, I shall attempt to show that, in so far as it holds that Mrs. Buie did not,inherit the land here in controversy upon the death of Lula May Buie, it is not only not manifestly wrong, and, unless it is, it should not be here departed from, even under the rule announced by the majority opinion, but, on the contrary, that is is manifestly right.
In the beginning I desire to concede that our former opinion was wrong in so far as it holds that Lula May Buie did not inherit the land in controversy on the ■death of her adoptive father, Church W. Buie, but the ground upon which I shall base this concession is consistent with and supports my further opinion that upon the death of Lula May Buie the land was inherited from her, not by Mrs. Buie, her adoptive mother, but by her brothers and sisters. The criticism in the majority opinion upon our former decision that Lula May Buie did
“The court seems to have been of the opinion that it was not possible for an adopted child, adopted under the laws of Mississippi, to inherit as an heir of the adopting parent. We are at loss to understand how the court reached this conclusion in view of the previous decision of W. T. Adams v. America Adams et al., reported in 102 Miss. 259, 59 So. 84, Ann. Cas. 1914D, 235, where this court held,” etc.
On the former appeal we not only did not intimate that we then entertained such an opinion, but expressly pointed out more than once, that a child adopted in Mississippi can inherit property from its adoptive parents, provided the right so to do is conferred by the decree of adoption. The ground upon which we then proceeded was clearly stated in the following language:
“We do not believe, however, that this child was capacitated by the adoption in Kentucky to inherit lands in Mississippi, because the laws of Kentucky are inconsistent with and antagonistic to our Constitution and laws on the same subject, and to the public policy of Mississippi on that subject, as such public policy is found in our statutes and Constitution, and for that reason we do not believe that Mississippi is bound to recognize this adoption by contract, as it was made in Kentucky, to be valid and binding in Mississippi as to confer upon the child the capacity to inherit lands in Mississippi. Its status as an adopted child of Mr. and Mrs. Buie may be recognized here without recognizing its capacity to inherit lands, which is a wholly different thing. ’ ’
The opinion then proceeded to specifically point out wherein we thought that the Kentucky statute was in
The right of inheritance is not a natural, but is a civil, right conferred by law, and in so far as real property is concerned it is universally held that it is determined solely by the law of the place where the property claimed to have been inherited is situated. This is but a branch of that broader universal rule that the title to real property must be determined by the lex rei sites.
The right of one person to inherit land from another depends upon the relation in which such persons stands to that other, or, in other words, upon his status or condition, which status or condition must be determined by the law of the place where it was created (Smith v. Kelly, 23 Miss. 167, 55 Am. Dec. 87); and, second, upon whether a right of inheritance is conferred upon persons having such status by the law of the place where the land is situated. The status created in one state will be recognized in all other states, provided it is not such as is inconsistent with the laws and public policy of such other states, but such right of inheritance only will attach thereto in such other states to land there situated' as would attach had such status been created by the laws thereof. 1 C. J. 1402; 1 R. C. L. 615; Ross v. Ross, 129 Mass. 246, 37 Am. Rep. 321; Finley v. Brown, 25 L. R. A. (N. S.) 1285; Gray v. Holmes, 57 Kan. 217, 45 Pac. 596, 33 L. R. A. 207; Van Matre v. Sankey, 148 Ill. 536, 36 N. E. 628, 23 L. R. A. 665, 39 Am. St. Rep. 196; McColpin v. McColpin; 77 S. W. 238; Shick v. Howe, 137 Iowa, 249, 114 N. W. 916, 14 L. R. A. (N. S.) 980; Melvin v. Martin, 18 R. I. 650, 30 Atl. 467; Smith v. Derrs, Adm’rs, 34 Pa. 126, 75 Am. Dec. 641; Lingen v. Lingen, 45 Ala. 410; Calhoun v. Bryant, 28 S. D. 266, 133 N. W. 266.
The status here claimed for Mrs. Rule and her adopted daughter, which status in fact unquestionably existed,
From these elementary rules, which have heretofore been uniformly acted upon by this court in dealing with "the status created by the marital relations, the birth of •children, etc., and which are equally binding in a case wherein the status is that created by the adoption of a ■child, it necessarily follows: First, as is held by the great weight of authority, that Lula May Buie inherited fhe lands in controversy from her adoptive father, ■Church W. Buie, upon his death, provided the laws of this state permit children adopted under the laws thereof to inherit property from their adoptive parents; and, second, as is held by all of the courts that have dealt with the question, that Mrs. Buie did not inherit the land in controversy on the death of her adopted daughter, Lula May Buie, unless the laws of this state permit an adoptive parent to inherit property from an ■adopted child.
The statute which regulates the adoption of children in this state is section 542, Code 1906, as amended by •chapter 185, Laws of 1910, and by it a child of another may be adopted by means of a proceeding in the chancery court, which, in its decree creating such an adoption, must specify the benefits which the adoptive parent proposes to confer upon the adopted child, to all of which such child shall he thereafter entitled, one of which benefits may be, as has heretofore been held by this court, the right to inherit property from the adop
Coming now to the right of Mrs. Rule to inherit the land on the death of Lula May Rule, and, turning again to section 542 of the Code, it will be. observed that no-right of inheritance whatever is there conferred upon adoptive parents, the only right there conferred upon them being that they “ shall have and exercise over such infant all such power and control as parents have over their own children,” and, under well-settled and most. elementary rules, this court has no rightful* power to confer such a right upon them. In passing I will say that our statute in this respect does not stand alone among the statutes of the states, for practically' all of them as originally drawn confer no such right upon adoptive' parents, though some of them now by amendment or new enactment do so. Section 1649 of the Code confers no such right, for the parents and the children there dealt with are natural and not adoptive parents and children. Since no such right of inheritance is-- K conferred by the laws of this state upon adoptive-parents, it necessarily follows under the rules herein-
The ground upon which the majority opinion, in this connection proceeds is: First, under the laws of Kentucky Lula May Browning, because of her adoption by the Rules in that state, became their lawful child “in the same light as a child born n lawful wedlock;” and, second, by reason thereof, when she dies [died] in infancy without issue, under the inheritance laws of this state, the property descends [descended] to her foster mother who survives [survived] her.” It is said in that opinion that:
“Lula May Browning inherits the property of her adopting father and mother, and why? Because she is their child in legal contemplation. "When the child died intestate Mrs. Rule inherited her property, and why? Because Mrs. Rule in legal contemplations is the mother of the deceased child.”
No statute of this state or decision of any court is referred to in support of the second of these propositions, and it is based, in so far as I can gather from the opinion, upon the attempt by the majority to administer what they call natural justice, losing sight altogether of the universal rule that the right of inheritance is purely legal, and unless conferred by law does not exist. It may be conceded that in Kentucky the adoption of Lula Mayv Browning created reciprocal rights of inheritance between her and her adoptive parents, but since our statutes recognize no such right in an adoptive parent such a right created under the Kentucky statutes cannot be given effect to in this state, for, as hereinbefore pointed out, no right to inherit land attaches to a status created in a state other than that
It may he that an adoptive parent may have the right to inherit from a child adopted under a statute which provides that the reciprocal relations between the adopted child and its adoptive parents shall be, for all purposes, identical with the relations that would have ■existed between them had the child been horn to such parents in lawful wedlock, as to which I am not here ■called npon to express an opinion, for our statute contains no such provision, and no such/delation is created "by the adoption of a child under it./The contrary view “was earnestly pressed upon and rejected by this court in Beaver v. Crump, 76 Miss. 34, 23 So. 432. In that ■case the appellants sought in the court below to establish their claim to an estate left by Seth A. Pool as his legal heirs, and to have the claim of the appellee thereto ■canceled as a cloud upon their title. The appellee made Iher answer a cross-bill, and claimed title to the property by inheritance from Pool, because of the fact that she was his adopted daughter, and prayed that if this claim ■should be rejected by the court, it would then decree the specific performance of a promise, made by Pool in the petition by which he procured from the court the decree •of adoption, to devise to her the land in controversy. The decree of adoption, after reciting Pool’s promise to devise the land, proceeds as follows:
“ ‘It is therefore considered, and so ordered by the •courts, that the said petition be allowed, said adoption .granted, and the name of said Alice Hulsey is hereby changed to Alice Hulsey Pool, and that she he entitled “to all the benefits- conferred and imposed by section 1496, Code of 1880, in that behalf made and approved.’ ”
“By a careful examination of the authorities, fully collated in the two case above given, it will be found that to adopt a minor means something — it brings about the relation and status of parent and child, with all of the obligations and liabilities, as well as all of the benefits, of such a relation. There cannot be a child without the correlative of a parent; where there is one, there is the other, with all that the relation means. ’ ’
Had this argument prevailed with the court, the case would necessarily have been decided in the appellee’s favor, but it did not prevail, and she lost. All the authorities hold, without conflict in so far as I am aware, that the adoption of a child does not vest any of the parties to the adoption with the right to inherit property from the others, unless the statute under ■ which' the proceeding is had so provides, either expressly or by necessary implication/ The assumption here by the majority of the court that the Kentucky statute, under' which this child was adopted, made her for all purposes -the child of the Rules to the same extent that she would have been had she been born to them in lawful wedlock, so that she on the one side, and her adoptive parents on the other, became vested with reciprocal rights of inheritance, has no foundation in fact, as the supreme court of Kentucky has more than once held/ What that court in fact has decided as to the rights of inheritance growing out of • the adoption of a child ■ under the
The ease last cited, Lanferman v. Vanzile, is the one here relied on by the majority of the court, and its conception of what the case held is set forth in a quotation therefrom. This quotation, however, does not appear in the majority opinion in the form in which the language was used by the Kentucky court, and makes the court appear to have decided just the converse of what it in fact did. The first sentence of this quotation as it appears here in the majority opinion is only a part of a sentence quoted by the Kentucky court, and set forth in its opinion at page 752 of 150 Ky., at page 1009 of 150 S. W., Ann. Cas. 1914D, 563, in the official report, from an opinion formerly delivered by it in the case of Power v. Hafley, supra, and refers to the adoption statute. As formulated by that court the sentence reads as follows:
“That it is the event of adoption that fixes, under the law authorizing- the adoption, the legal status of the adopted child; and the child, by the event of adoption, becomes the legal child of the adopting parent, and stands, as to the property of. the adopting parent, in the same light as a child born in lawful wedlock, save in so far as the exceptions in the statute authorizing the adoption declare otherwise.”
As it appears here in the majority opinion, it reads:
*387 “By the event of adoption [the adopted child] becomes the lawful child of the adopting parent, and stands, as to the property of the adopting parent, in the same light as a child born in lawful wedlock.”
The next two sentences of the quotation are taken from page 751 of 150 Ky., page 1008, of 150 S. W., Ann. Cas. 1914D, 563, in the official report of the case, and were used by the court in referring, not to the adoption statute, but to a' section of the Kentucky statutes of' descent and distribution, which places a limitation upon the estate which an infant receives from a parent by gift, devise, or inheritance, and which I shall presently specifically set out. In that case:
“Henry Lanferman and his first wife, Anna Lanferman, by a proceeding duly had, adopted, on June 12, 1891, Albert-Urlage, who was then seventeen months old. His foster parents took him to their house, and reared and educated him as if he was their natural child, he being known as Albert Lanferman. They after-wards had three children of their own. The wife died intestate, and Henry Lanferman married a second time. He then died intestate, leaving property in the city of Covington. After the death of Henry Lanferman, the adopted child, Albert • Lanferman, died unmarried and without issue, in infancy. A partition suit was instituted to divide the estate of Henry Lanferman among his three children. In this proceeding Clara Vanzile, the natural mother of the adopted child, Albert Lanferman, filed her petition, claiming that he took, at the death of his foster father, an undivided one-fourth of the estate, and that this one-fourth descended, at his death, to her. The three children of Henry Lanferman demurred to this pleading. The court overruled their demurrer, and, they failing to plead further, judgment was entered in favor of Mary Vanzile for one-fourth of the property. They appeal.”
“It is not argued in the case at bar anywhere or by anybody that an adopting father has, by virtue of the statute, or by virtue of the relationship, assumed through the statute any right of inheritance from the adopted son such as a natural father would have. It is nowhere claimed that the adopting parent has any such right of inheritance as would a natural parent. It is not claimed anywhere that he is a ‘parent’ in the sense in which we commonly know.that word. So far, therefore, it must be admitted by any reasoning mind -that the one adopting is not the ‘parent’ of the adopted child in the sense that he takes under any statute or any law the right to inherit from'the one whom he has adopted.”
The majority opinion in that case proceeds on the assumption that this is true, and disposes of the question in the following language:
“It is also universally held, under similar statutes, that the person adopting a child does not.thereby become capable of inheriting property frpm the child unless it is so provided in the statute. ’ ’
“If an infant dies without issue, having the title to real estate derived by gift, devise or descent from one of his parents, the whole shall descend to that parent and his or her kindred as hereinbefore directed, if there is any; and if none, then in like manner to the other parent and his or her kindred; but the kindred of one shall not be so excluded by the kindred of the other parent, if the latter is more remote than the grandfather, grandmother, uncles and aunts of the intestate and their descendants.” Ky. St., section 1401.
The court, after holding that an adoptive parent has no right in inheritance in the property of an adopted child by virtue of the Kentucky adoption statutes, proceeded to -determine what effect this statute limiting the estate received by an infant from its parent had upon the controversy then before it, stating that:
“The question here is simply. What is the proper construction of the statute [referring to the adoption statute?] Was it intended to put the adopted child on the same footing as the natural child, and does he take his inheritance subject to the same limitations, if he dies in infancy and without issue ? ”
The court, after giving its reasons therefor, answered these questions by holding that since the adoption statutes provide that the adopted child shall inherit property from its adoptive parent, as though it were the child of such adoptive parent, its estate in the property so inherited is subject to the same limitation as the estate received from its parent by a natural child, and concluded its.opinion as follows:
*390 “The statute [referring to the one limiting the estate of an infant in property received from its parent] does not make the foster father the heir of the adopted child. The ease does not turn on the question. Who is capable of inheriting from the adopted child? It turns on the question, What estate does the adopted child who dies in infancy and without issue take in the estate of his foster parent? The adopted child under the statute is ‘capable of inheriting as though such-person were the child of the petitioner.’ He, therefore, takes under the statute the same estate as the natural child. The estate of the natural child which he inherits from his parent is defeated by his death in infancy without issue, and the property then goes back to the kindred of that parent. The adopted child, inheriting as 'though he were the child of his foster parent, takes subject to the same limitation, and when he dies in infancy and without issue, the property under the statute descends to the kindred of that.parent from whom he received it.”
How the majority of this court, in the case at bar, can understand that case to hold that an adoptive parent has the right in Kentucky to inherit property from the adopted child is beyond my comprehension; and that they will admit that the Kentucky statute, limiting the estate of an infant in property received from its parent by gift, devise, or inheritance, can have no operation in Mississippi I take for granted, in view of the two universal rules that title to real property must be determined by the law of the place where it is situated, and that statutes have no extraterritorial force. If the statute is to be applied here, it must also be applied as a limitation upon the estate of a natural child, born in Kentucky, in land situated in this state, received by it from one of its parents by- gift, devise, or descent, a thingh which I suspect this court would not do. The fact' that the supreme court of Kentucky has expressly
“No principle of law is of more universal acceptation, or stands upon sounder reason, than that the construction put by the proper courts upon the statutes of their own jurisdiction is conclusive of their force and effect, and will be so regarded by all foreign judicatures, when they may become the subject of consideration.”
The estate which Lula May Buie took in the land inherited by'her from her adoptive father was that which she would have taken had she been born to him in lawful wedlock, which under the law of this state is a fee simple ; consequently upon her death the land was inherited under section 1649 of our Code by her brothers and sisters, and should be awarded to them, regardless of whether this court thinks that so to do would be in accord with natural justice or not, for that question is not for its determination, but for the determination of the legislature.
The case of Humphries v. Davis, 100 Ind. 274, 50 Am. Rep. 788, cited in the majority opinion, is of no value here for three reasons: First, that decision simply construed an Indiana statute, the phraseology of which is different from the Kentucky statute here under consideration, and, second, whether the construction put upon the Kentucky statute by the supreme court of that state is right or wrong, it should be accepted and acted upon here; and, third, the right of an adoptive parent
The statute there under consideration (Burns’ Ann. St. 1901, sections 837, 838) after providing the method by which children could be adopted, continued as follows :
“From and after 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 adopted father or mother, by descent or otherwise,’ that such child would do if the natural heir of such adopted father or mother. . . . 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. ’ ’ ■
It came before the supreme court of Indiana for construction in Barnhizel v. Ferrell, 47 Ind. 335, and the court then held that it conferred no right on an adoptive parent to inherit property from the adopted child. In Krug v. Davis, 87 Ind. 590, it was conceded by counsel, and assumed by the court, that the statute conferred no such right, but when that case came again to the court on a second appeal, as Davis v. Krug, 95 Ind. 1, the; court held that the question was not considered and decided by it on the former appeal, and was therefore not within the law of the case rule; that the statute did confer such right of inheritance on an adoptive parent — - and overruled Barnhizel v. Ferrell. Afterwards, the right of the same • adoptive parent to inherit from the same adopted child that was involved in Krug v. Davis, and Davis v. Krug, supra, came before the court in
The California case cited in the majority opinion is of no value here, for the reason, as pointed out in the California court’s opinion, the statute of that state there under consideration is materially different from the statutes of other states. The statute (Civ. Code, sections 228, 229) there construed, as was said by that court, does “not in terms' provide for the inheritance by the adopted child from the adopting parent or vice versa,” but does provide that:
*394 “ ‘A child, when adopted, may take the family name of the person adopting. After adoption, the two shall sustain towards each other the legal relation of parent and child, and have all the /rights and he subject to all the duties of that relation./ . . . The parents of an adopted child are, from the time of the adoption, relieved of all parental duties towards, and all responsibility for, the child so adopted, and have no right over it’ ” and was construed by the court to mean that, when a child is adopted under it, the relations between it and its natural parents are for all legal purposes superseded, and it thereafter becomes for all such purposes the child ■ of the adoptive parents. The Kentucky statute expressly gives the child a right to inherit from its adoptive parents. Our statute provides that such right may be conferred upon it in the decree -of adoption; but in neither of these statutes is a right in the adoptive parent to inherit from the child referred to, and therefore such a right cannot be held to be included therein without violating one of the most elementary rules of construction. “ Expréssio unius est exclusio alterius.” And, moreover, as hereinbefore pointed out, this court has held that under our statutes—and the Kentucky court, has held under the Kentucky statutes—no such relation is created by the adoption of a child.
In conclusion I have only this further to say: That when this case was before us on the former appeal, we held, as has also the supreme court of Kentucky, that under the Kentucky statute under which Lula May Buie was adopted, her adoptive parents were given no right to inherit property from her, which holding, even if this court has the right to construe the Kentucky statute differently from what it has been construed by the Kentucky court, is .supported by the decisions of all the courts which have construed statutes the phraseology of which is similar to that of the statute here under
I am requested by my Brother Sykes to say that he concurs in the views herein expressed.
On Suggestion op Error.
delivered the opinion of the court.
The suggestion of error filed in this case challenges the power of the court to change the decision on the first appeal, on the ground of want of power in the court under constitutional grant of jurisdiction to the court; second, if the court had such power, that its exercise would violate the rules of res ad judicata, “for which neither a principle can be stated nor an authority produced;” third, that to make such a decree is to overrule an unbroken line of decisions in this state, recognizing and enforcing the law of the ease.
The Constitution, in giving jurisdiction to the supreme court, uses the following language:
“The supreme court shall have such jurisdiction as properly belongs to a court of appeals.” Section 146 of the Constitution.
In section 144 the general grant of judicial power is in the following language:
“The judicial power of the state shall be vested in a supreme court and such other courts as are provided for in this Constitution.”
It will be noted from these provisions that the entire judicial power of the state is vested in the supreme court and such other courts as are provided for in the Constitution. Section 146 has been construed to mean that the supreme court has only appellate jurisdiction, and that original jurisdiction cannot be conferred upon it. There is no limit of the appellate jurisdiction that
On the second proposition, that if the court possesses such power the decision would violate the rule of res adjudicata, “for which neither a principle can be stated nor authority produced,” is likewise not well taken. We think we have produced decisions in the former opinion sustaining the power and right of the court to change the decision. Other authorities could be cited, and among the decisions which have accomplished the same result, without making the pronouncement ’in terms, is Field v. Middlesex Banking Co., 77 Miss. 180, 26 So. 365, which later came before the court on second appeal in 84 Miss. 646, 37 So. 139. On the first appeal Judge Woods, as the organ of the court, used some strong language and reversed the case. On the second appeal, a majority of the court reversed the lower court, which followed Judge Woods opinion, and changed the effect of the decision on the first appeal. It is true that Judge Whitfield, one of the members of the court, undertook to show the same result could be accomplished without disturbing Judge Woods opinion; but the court did change the pronouncement of the law as it had been adjudicated on the first appeal. In Judge Woods opin
Numerous authorities have been cited in the suggestion of error, most of which were referred to in the dissenting opinion in the present ease, and in none of them is the precise case here dealt with presented. The only ease that seems to sustain the contention of the suggestion of error is Stewart v. Stebbins, 30 Miss. 66. That case, however, is distinguishable from this case, because the former decision was not in the same case. But the rights growing out of the suit had been adjudicated in the case of Stebbins v. Niles, 25 Miss. 267, and which had, therefore, been finally adjudicated, and constituted res adjudicata, properly speaking, and as distinguished from the law of the case. It is true that the court in the case reported in 30 Miss. 66, uses language that would support the contention; but the language used was not applicable to the facts of the case. In other words, it was broader than the case called for. The decision, ap
The names of great judges of the past, who have adorned-this court, have been brought into honored review, in the suggestion of error, as great names in the judicial history of this state. We revere the memory of these judges, and have great respect and deference for their decisions. Able and eminent as these judges were, they were human and fallible, and, while we would not lightly depart from rules laid down by them, still we must, where they have decided cases which operate to effect injustice or lead to wrong results, apply the corrective as though we had rendered the same decisions. We do not intend to depart lightly from prcedents. We expect to consider and adhere to them where they are sound in principle; but we refuse to crucify justice on the cross of precedent. We do not think the language used in our opinion, “when judicial construction is out of harmony with natural justice the judicial reasoning should withstand the most careful scrutiny and analysis before it should prevail,” and “courts are created, maintained, and sworn to administer justice and not to adhere strictly to arbitrary rules; when a rule or decision defeats justice or seriously impairs it, it should he departed from rather than followed,” is such radical language as need frighten the members of the bar. There may be those who love consistency of utterance and of precedent more than they do the administration of justice, but in our opinion the courts were created solely for the purpose of administering justice. We recognize that precedents are valuable guides, and it is not our purpose to throw them aside entirely and to proceed and blaze a new trail from our personal sense of right and
The first appeal, in the present case, was from, an interlocutory decree, and not from a final decree. Important as it is for the court to adhere to rulings made in settling the principles of litigation before final decree or judgment, it is more important that justice be done; and where the court reached the conclusion that a decision is manifestly wrong, and ought to be overruled, we see no reason to hold a litigant irrevocably bound to the court’s mistake. If a mistake is made, it would be better to correct it at once, while injustice may be prevented. A litigant has no vested interest in a court’s mistake, where the mistake is discovered before the final ending of the litigation.
We are satisfied with the pronouncement in our former opinion on the third proposition above laid down in the suggestion of error, without adding to it.
Suggestion of error is overruled.