143 Mo. 47 | Mo. | 1898
This is an action of ejectment to recover possession of certain land in Mississippi county. The petition was in the usual form. The defense set up in the answer was that defendant-is in possession as curator of the estate of Roy Conyers, a minor, who is averred to be the owner in fee of the land. A reply was filed denying the new matter contained in the answer. The cause was tried before the court without a jury and resulted in a judgment for plaintiff from which defendant appeals. The action was instituted on February 25, 1895, and tried at the ensuing April term of the Mississippi county circuit court. It was admitted that Jabez Clarkson was the common source of title. On November 9, 1858, Jabez Clarkson conveyed the land in question by warranty deed to his son, John Clarkson, and his “bodily heirs.” John Clarkson was in possession of the land at the time said deed was executed, and continued to reside thereon until 1890, at which time he died, leaving his wife, Sarah Clarkson, surviving, who died in 1894, prior to the commencement of this suit. John Clarkson had no children or their descendants living at the date of said deed, and none were born to him after that time. The plaintiffs are the only living brothers and sisters of John Clarkson.
In the recent case of Clarkson v. Clarkson, 125 Mo. 381, this court held that the deed from Jabez Clarkson to John Clarkson created án estate tail, which our statute, eo instanti, converted into a life estate in John Clarkson with remainder in fee to his children. Black, J., who wrote the opinion, after stating the facts, says: “On this state of facts the plaintiffs insist the title passed to them. The question must be determined by section 5, chapter 32 of the Revised Statutes of 1855, the statute in force when the deed was executed. It provides that any conveyance or devise which would have created an estate tail under the statute of the thirteenth Edward First shall vest an estate for life only in such grantee or devisee, who shall possess and have the same power over, and right in, such premises, and no other, as tenants for life thereof would have by law; and upon the death of such grantee or devisee, the said land and tenements shall go and be vested in the children of such grantee or devisee, equally to be divided between them as teneements in common, in fee; and if any child be dead, the part which would have come to him or her shall go to his or her issue, and if there be no issue, then to his or her heirs. This statute disposed of the entire estate conveyed by the deed. It vested in John Clarkson a life estate and no more. As he had no children, or their descendants living, either at the date of the deed or at his death, the remainder vested, according to the last clause of the statute just quoted, in his brother and sisters and the heirs of those who were dead, he having no father or mother living at his death.”
The defendant contends that, as to the land in question, under the statutory estate so created, the remainder after che death of John Clarkson, vested in Roy Conyers, the adopted child of John Clark-son under the word “children” used in the statute above quoted, or the words “heirs” in the last clause of said section. The plaintiffs, however, claim, and the circuit court so held, following Clarkson v. Clarkson., supra, that as John Clarkson had no children living at the time of his death, the remainder vested in his brothers and sisters and their descendants. It is objected further that this deed of adoption is not legal and valid because it does not appear that the father of the adopted child consented to such adoption. The statute under which the deed of adoption was executed
The next inquiry for our determination is, what are the rights of the adopted child? Can the adopted child in this case take property expressly limited to the “heirs of the body” of the parents by adoption? It is argued by counsel for plaintiffs that the decision by this court in Clarkson v. Clarkson, supra, is decisive of that question. In the concluding paragraph of that opinion the court says: “The defendant makes the point that the adopted child of John and Sarah Clark-son was a child within the meaning of the statute, and
Adoption was unknown to the common law, being repugnant to its principles and the institution upon which it was builded, but was recognized by the civil law from its earliest day, and exists in this cou ntry by the statutes of every State so far as we have had occa-' sion to examine. The child becomes in a legal sense the child of the adopting parents; and at the same time remains the child of its natural parents, and is not deprived of its rights of inheritance from them unless expressly so provided by statute. Wagner v. Varner, 50 Iowa, 534. In Moran v. Stewart, 122 Mo. 295, a construction was put upon this statute in conformity
By the act of adoption, Roy Conyers became the child and heir, in a certain sense, of John and Sarah Clarkson, but it does not follow that such adopted child takes the statutory estate created under the Revised Statutes of 1855, the statute in force when the deed in question was executed. The phrase “bodily heirs” is a well-established technical term, and is defined in Anderson’s Dictionary of Law, 508, as “an heir begotten of the body; a lineal descendant.” The words “children,” “issue” and “heirs” are not synonymous terms. The rule of construction is that technical words or phrases which have acquired a peculiar and appropriate meaning in law shall be construed according to such peculiar and appropriate meaning, unless it appears that the words were not used in their technical sense. When words and phrases have received a fixed legal interpretation by repeated decisions, such words and phrases, when employed in deeds or other written instruments, are to receive such fixed
In Reinders v. Koppelman, 94 Mo. 338, it was held in construing the provisions of a will in which the testator gave his wife a life estate in all his property, and at her death one half the remainder to the nearest and lawful heirs of the testator and that of his wife, the testator and his wife each having brothers and sisters living at the date of the will, that an adopted child was not entitled to inherit under the provisions of the will, but that the remainder went to the brothers and sisters of the testator’s wife. Upon this subject the court said: “In common parlance we find the terms heirs-at-law and lawful heirs are used indiscriminately, as synonyms and convertible terms, and wherever either is used they are invariably referred to the heirs upon whom descent is cast by law, and not to an heir by adoption. The relation of an heir by adoption is an exceptional and unusual one, and does not come within the ordinary and usual meaning of the words lawful heirs, and these words ought not to be held ex vi termini to include an adopted heir.” In the concluding paragraph of the opinion, in speaki-ng of the intention of the testator, the court remarked: “It is impossible to believe that he could have intended the child of a stranger manufactured into an heir by deed. The testator devised to his widow a life estate, the remainder to others; in that remainder she had no interest. She could neither convey it by deed nor devise it by will; she had no more power to convey it by deed
When the statute of 1855, now under consideration, was passed, there was no law in this State authoi*izing the adoption of children, the adoption statutes not having been passed until some years later. The language of the statute shows that the legislature intended to use the words “children” or “heirs” in their primary technical sense, as lineal descendantsi when applied to “children” and as heirs upon whom the law cast the estate immediately on the death of the ancestor when applied to heirs, and that a child or heir by adoption was not contemplated. This is unquestionably in line with the drift of modern judicial thought. John Clarkson, having only a life estate in the premises in controversy, was powerless to convey the remainder by deed of adoption or by any other method known to law. If, then, he could not convey or in anywise dispose of the remainder, it would be illogical to say that by the contractural rights conferred by the deed of adoption he could convert a mere stranger into an heir, so as to work a result which was not in his power to effect by usual methods, and thereby change the dissent and devolution of such remainder.
It was not in the power of John Clarkson to take away the statutory estate so created and vested in his brothers and sisters, if he had no bodily heirs, and confer the same upon an adopted child. The right to inherit by virtue of a deed of adoption does not make the beneficiary a - “bodily heir,” a child in fact of the adopting parent or parents. In Schafer v. Eneu, 54 Pa. St. 304, it was held that the adopted children are not children of the persons by whom they have been adopted, and that the act of the legislature in passing
But it is insisted that the court erred in refusing the seventh instruction asked in behalf of defendant, to the effect that the plaintiff was not entitled to recover rents and profits for any period preceding the com
It is conceded that there was no evidence of such knowledge in this case. The law applicable to questions of this nature has been so often declared in favor of the contention of appellant that it is scarcely necessary to repeat it. See Robidoux v. Casseleggi, 81 Mo. 459, and cases cited. For the refusal to give plaintiffs’ seventh instruction the case is reversed and remanded with directions that judgment be entered in accordance with the views herein expressed, computing rents and profits from February 25, 1895, the date of the institution of this suit.