146 N.E. 123 | Ind. Ct. App. | 1925
Action by appellant against appellees for partition of certain real estate, which appellant contends is owned by him and appellee, Effie B. Helvie, as tenants in common. From a judgment sustaining a demurrer to the complaint, appellant appeals.
The complaint alleges that George A. Helvie, who died in 1894, by his will executed in 1893 and probated in March, 1894, directed his administrator "to take and pay out $1,000 for real estate" for his son George F. Helvie, and to "take the deed in his name and his wife's name jointly his natural lifetime and in the event of his death leaving children one-half shall go to his wife and one-half go to his children and if there is no children one-half goes to C.W. Casper." Pursuant to the directions in said will, the executor purchased the real estate described in the complaint, the deed therefor being lost. On July 11, 1903, pursuant to an order of the Delaware Circuit Court, a new deed was made by a commissioner to take the place of said lost deed. By this deed, such commissioner conveyed the real estate "to George F. Helvie and Effie B. Helvie, his wife, jointly, for and during the life of said George F. Helvie; an undivided one-half interest in fee simple to Effie B. Helvie, subject to said life estate aforesaid; and an undivided one-half interest in fee simple to the surviving legitimate children of George F. Helvie or to Charles W. Casper, subject to said life estate aforesaid, on the following conditions, namely, that if the said George F. Helvie die leaving children, him surviving, then and in that event the undivided one-half in fee simple to his children him surviving, but if he die childless, then and in that event the undivided one-half in fee simple to Charles W. Casper." George F. Helvie died without having had any child born to him. He did, however, *168 on April 10, 1908, adopt Jessie E. Helvie, who was then and still is a minor under the age of twenty-one and who is not related to said testator. Charles W. Casper is a grandson of the testator.
Appellant, by his complaint, after alleging the above facts, asked that he be adjudged the owner of an undivided one-half of the real estate described and for partition.
Appellant contends that the word "children" as used by the testator in his will and as carried into the deed must be construed as meaning children born to George F. Helvie and not adopted children and that appellee Jessie, being an adopted child, is not the owner of any part of the real estate involved. Appellees contend that appellee Jessie, by virtue of the adoption, became the child of her adopting parent George F. Helvie to all intent and purpose the same as if she was a natural born child and that the testator must be presumed to have used the word "children" as meaning children by adoption as well as by birth.
All parties agree that the intention of the testator must control. Appellant refers to the fact that appellee Jessie was not born until long after the death of the testator and was not adopted until after the execution of the deed, and says it is clear the testator could not have intended to include her in the term children, and that the fact that she is not of common blood with the testator is also an important fact in determining the intention of the testator.
There is no question but that appellee Effie is the owner of a one-half interest in the real estate in question. The controversy is between appellant and appellee Jessie, and, in our discussion of the questions involved, we shall refer to her and treat her as if she were the only appellee.
Section 915 Burns 1926, § 870 Burns 1914, Acts 1883 *169 p. 61, provides that a child after adoption shall "be entitled to and receive all the rights and interest in the estate of such adopting father and mother, by descent or otherwise, that such child would if the natural heir of such adopting father or mother." This is followed by a provision to the effect that if an adopted child dies without leaving a husband or wife, or issue, seized or owning any property by gift, devise or descent from the adopting parent, such property shall descend to the heirs of the adopting parents. Section 916 Burns 1926, § 871 Burns 1914, Acts 1885 p. 122, provides that: "After the adoption of such child, such adopted father and mother shall occupy the same position towards 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."
Appellee cites Markover v. Krause (1892),
Appellee cites and relies upon Bray v. Miles (1899),
In Power v. Hafley, supra, the court held that the word children is not "necessarily confined to children born in lawful wedlock," and that the word may include children born in lawful wedlock, children made legitimate by the marriage of their parents, and children by adoption.
In Keegan v. Geraghty, supra, one Michael Keegan and wife, while living in Wisconsin and having no children, adopted Mary Anna Keegan. They later moved to Illinois. This wife died and Michael married a second time and had one child born to him as a result of this marriage, to whom he by will gave all his property. This daughter died leaving as her only possible heirs a grandfather and the adopted child, Mary Anna Keegan, who claimed to be a half-sister and the sole heir of the deceased child. The court, in discussing the effect of the adoption, said: "The proceeding of adoption is one entirely between such parents and the child, at the instance, by the consent, and upon the petition of the parent or parents. The artificial relation from adoption is established between these parties, and the statute defines what shall be the duties and rights of the parties from this relation between them. As we construe the statute, as between the parties to the transaction the adopted child is deemed, for the purpose of inheritance from the adoptive parents, their child, the same as if he had been born to them in lawful wedlock." And it was there held that the adopted child could not inherit from the natural child of the adoptive father, the court saying: "As against the adopted *172 child the statute should be strictly construed, because it is in derogation of the general law of inheritance, which is founded on natural relationship, and is a rule of succession according to nature, which has prevailed from time immemorial." Stanley v.Chandler, supra, does not discuss the question and does not support the statement.
The rule on this subject, is, in our judgment, correctly stated in 40 Cyc 1452 as follows: "The word `children' does not usually include an adopted child, notwithstanding a statutory 1. provision investing an adopted child with the rights of inheritance from the adopting parent, unless it is manifest from the language of the will and the surrounding circumstances, as in connection with a statute, that the testator intended to include such child."
Martin v. Aetna Ins. Co. (1881),
In Munie v. Gruenwald (1919),
In re Truman (1905),
In Woodcock's Appeal (1907),
In Lichter v. Thiers (1909),
In Schafer v. Eneu (1867),
In re Puterbaugh (1918),
In Wallace v. Noland (1910),
In Phillips, Exr., v. McConica, Gdn. (1898),
In Davis v. Fogle, supra, where the contention was that the adoption of a child revoked a will made before the adoption, the court, after reviewing several of the causes relied on by appellee herein, said: "These decisions go as far, it would seem, in holding the legal status of the adopted child to be the same as a natural child, as is warranted by the statute; * * * These decisions go no further than to hold that the surviving adopting father or mother inherits from the adopted child such property as it inherited from the deceased adopting father or mother. * * * There is a material difference in the matter of inheritance by an adopted and natural child; also, as to the descent of property owned by them. An adopted child inherits from its natural parents, but not from the relatives of *178 the adopting parents." And on page 46, the court, in speaking of children born to one and children adopted, said: "The statute gives to the one certain rights, and imposes certain obligations on the adopting parents, but it does not make it the legitimate child and issue of the adopting parents, or a child born to them. One becomes an heir by birth, the other by a judgment of a court."
In Nickerson v. Hoover, Admr., supra, the testator had four sons and three daughters. The sons and two of the daughters were married and had children when the will was executed. The other daughter was married but had no children. To the sons and daughters who had children, the testator gave certain property absolutely. To the daughter having no children, he gave certain property "forever provided she have heirs, if not then at her death" over. The court viewing the entire will in the light of surrounding circumstances, held that the phrase "provided she have heirs" meant provided children should be born to her, and that the condition was not satisfied by the adoption of a child. In this connection, the court, at page 359, said: "An examination of the decided cases will disclose also that force is given to certain extraneous circumstances, as whether the testator knew that his devisee had adopted a child; whether the adoption preceded his death; whether the adopted child was a stranger to the blood of the testator, and the like. It follows that to an extent each case must be determined from a consideration of the circumstances which it involves, including the language of the will before the court for construction."
Bray v. Miles, supra, was distinguished from the case then being considered, and attention was called to the fact that the court in the Bray case gave force to the *179 fact that the child there involved had been adopted by the testator's daughter prior to the testator's death.
The will in the instant case bears evidence of having been written by the testator himself, or by some one with a very limited education and unlearned in the law. And it is only 2. reasonable to suppose that the testator used the word children as ordinarily and commonly used, meaning a descendant in the first degree, the immediate progeny or offspring. And unless there is something in the will or the situation of the testator or other circumstances indicating otherwise, it is our duty to give the words used by the testator their usual and common meaning. West v. Rassman (1893),
As was held in Harle v. Harle (1918), 109 Texas 214 [
As was said in White v. Rowland (1881),
Where one makes provision for his own "child or children" by that designation, it is quite proper that he should be held to have included an adopted child, and it is the settled law 4. in this state that, in such a case, the word child will include an adopted child, unless there is something in the will to show an intention to exclude an adopted child. But we hold that where a person makes provision in a will for a "child or children" of some person other than the testator, an adopted child is not included unless other language in the will makes it clear that it was intended to be included. In addition to the authorities heretofore cited, see Russell v. Russell (1887),
As heretofore stated, the testator in the instant case died fourteen years before the adoption of appellee, not knowing his son contemplated the adoption of a child. There is nothing 5. in the will or the circumstances connected with its execution to indicate that the testator intended to use the word "children" in any sense other than to indicate one standing in the relation of the direct offspring of the son — a child born to *181 the son. There being nothing to indicate an intention on the part of the testator to use the word children as including possible adopted children, we hold the court erred in sustaining the demurrer to the complaint.
Barring the one incident of husband and wife's right by reason of the marital relation, our laws of descent and distribution are built on and around the idea of blood kinship. So the fact that the testator made provision for the son and his wife during their joint lives, and that the property was to go to a blood relative of the testator if the son died without children, with the exception that he made provision for the son's wife in case she survived her husband, should not be overlooked in seeking the intention of the testator but should be given some consideration.
Bray v. Miles, supra, in so far as it is in conflict with this opinion, is overruled.
Judgment reversed, with directions to overrule the demurrer to the complaint and for further proceedings in accordance with this opinion.