*1 ' 110.0
jury judgment in the declaratory suit in court on Borchard, 400, 401. Declaratory Judgments, facts. pp. She would right trial deprived jury merely of her constitutional to a because declaratory judgment, action form suit for of a by way recovery cross-action seek “further relief” she should policy delay. on the and for Blair v. Acacia Mut. Life vexatious See (Mo. App.), App. 193, Ins. Co. where the cause was jury. tried will be These matters the consideration trial court later. (cid:127) For the reasons stated the writ of mandamus alternative hereto- quashed. All fore issued is concur. Henry Arends, Mildred Hed
Louise Weber Crawford Arends Arends, Smith, rick, Lawrence, Barth Alma H. Smith Marie LeMarr, Appellants. and Irene 37998. 176 S. W. Smith No. (2d) 1. Banc, Court en November Opinion Modify filed, Motion to November *2 McVey Glagett appellants. H. & Paul Jenree respondent. John Grover for James G. Kimbrell and C. *3 ELLISON, plaintiff-respondent quiet in J. The title suit adjudged county court circuit of Jackson be the owner in fee simple of an undivided in interest the real herein 5/196 after described. She and the defendants-appellants akl owner claim through ship the will Weber, of Emma deceased, Arends a resident ’ of The dispute Kansas. interest in that devised will said Weber, Frank cousins, J. of testatrix’ predeceased one who her
leaving Respondent no natural issue. claims that interest adopted child of 528, 1939, Weber R. S. Mo. R. S. 528, provides that, which any “when estate shall be any devised to . . . relative the testator, and sudh devisee shall die before the testator, leaving lineal descendants, such descendants shall take the estate ... as such devisee would in have done case he had sur vived Respondent testator.” became contends she a “lineal des cendant” Weber adoption virtue statutes force this state the time adoption. at her provisions The of the will and pleaded deed of in ap- pellants’ answer were in respondent’s admitted reply correct. are sequence dates and of events also conceded. Each side filed a The judgment pleadings, questions raising only motion for thereby on appellants’ The trial court motion and law. overruled sustained accordingly. entering judgment From the respondent’s, outset these Respondent their dates are to be events and remembered. At
in Missouri March 1916. time the statutes deed dated .that adoptions Chap. 20, governing were Art. such included Sections 1673 and 1675 of revision. The will later on Frank years April Weber, about 17 1933. executed only adoptive died months thereafter on June 1933. The testatrix died her will became effective nearly eight years February 2, Chapter including after that on 1675, supra, repealed Sec’s new statutes thereof, by 1917, p. enacted in Laws lieu But the changed agree operated only, that these statutes as prospectively, do not fix status.
Respondent’s brief reminds the testatrix us died resident Kansas, suggests may drawn will with the law they say recognizes of that state mind—which only lineal descendant. But further concede this bears mtention; controlling. the testatrix’ that the Kansas is not law pleaded. Neither was it The statutes, case briefed the Missouri respondent’s adoption, and those in force at the time of must govern. question
Another preliminary must be settled going further into the deciding facts law. When the ease the trial court general made finding Respondent o'f facts. therefore judgment must any sustain the below it can be done on reasonable theory fact, quiet of law and which is true. brought title suit was *4 under broad “hear statute, the and determine” Sec. Mo. R. S. Respondent further view of that fact the is litigants issue which of adversary has the “best title” as themselves, citing (Mo. Barr between v. Stone 242 2), Div. 661, 664(6) (Mo. W. and 2), S. Barnett v. Hastain 256 Div. S. W. 750, 752(2). Appellants reply respondent by since that answer disputed claims title to by interest and seeks affirmative relief litigants declaring, judgment so on both sides stand in same position, and neither can win proving without of ownership some title. think Johnson, We Cullen correct. v. Mo. (2d) 39, 46(7); 29 S. Weare, W. Brown 145(9), (2d) W. 655(17), 136 A. L. R. 286.
Now, pleaded duly facts. getting The deed of adoption, acknowledged recorded, by and was executed The Children’s Home Missouri, Society of a non-sectarian duly benevolent association char- Missouri, tered the law of Frank J. Weber and his wife. It recited that the Probate County Court of Jackson by in- lawful of writing strument surrendered and respondent delivered Mary being a female child named Jack- Society April she on county February,
son, about the second -of born in said and “onvor preliminarily child had been then recited A. D. 1915.” It county, Society where in the home of the Webers said by the placed attached days; Webers become for 90 that the had had remained she child,” give their adopt her “as own her and desired to treatment, have Education would and Christian her such change wedlock, her name been born to them lawful recited part of the deed declaring Weber. to Louise Roland Then Society thereby by did of the the Webers and with consent rights, child, conferring her “all adopt respondent as their own responsibilities pertain her if she had which privileges wedlock, change her name been born to them lawful to Louise Roland Weber.” deed,
At the date of the execution of specifically governing adoptions, provided (italics such institutional ours) : any age years,
“Whenever minor child below of seven intrusted by any parents custody its or either of them to the care and of legally incorporated custody institution in this state for the care of minor any institution, children, may or to individual who conduct such an period parents years, shall have been abandoned for a such two n o’r have therein for whenever such institution shall care received custody, age aforesaid, a minor child which shall thereafter parents period years, have abandoned its been such may, principal officer, institution its ap- and with the proval county the probate court of the or in which city such in- located, stitution execute a deed with the force and parent, proper person effect of a any persons or in this state who adopt child, join shall desire to such who shall in the execution such purpose; deed for that executed, and such deed ac- shall be knowledged, and recorded in the county city or wherein such in- located, stitution is and from filing and after the time of the same recorder, with the the child or children aforesaid, shall rights have and to all be entitled children their of lawful adopted parent parents, adopted parent and such and be entitled to all rights lawful parents against children, any child or rights such exclusion of its parents.” lawful
Appellants their brief contention in the trial rights was that her court as an child were based statute, foregoing they argue Sec. 1675. Then the statute forbids *5 adoption the execution of such a deed the child unless was aban- by parents period years doned its for a of two either before or after they was to the intrusted institution. And that show requirements case, those not and could not met in were have been this adoption respondent because the deed of recites the was born on or 1915; court intrusted her 2, probate February that about months April only about half Society on two Home adoption was on March about the deed executed later; and appellants assert re- her thirteen months after birth. From this years by parents abandoned her two spondent could not have been deed; adoption, that her before execution instead adoption for in Sec. ordinary provided was an under See. being supra. Respondent’s replies pleaded brief appellants that their answer she they estopped was are now under Sec.
dispute they it. see Appellants’ We cannot did. answer did that Frank respondent adoption, state that Weber deed by pursuant to the “then law” did not commit themselves to the contention adoption specific that the based on that section. was plead adoption legal. Neither did they was It would do violence say by appellants whole record that their answer and trial theory respondent legally adopted although conceded their main — position was, here, legally probably below it is she that even if were adopted, Weber, it did not make lineal Frank her a descendant of so adopted parent that she would take share of her deceased supra. the will Emma Arends Weber virtue alleged But aside from estoppel, respondent her brief argues adoption that affirmatively was under Sec. 1675. calls She that only attention fact the deed of said she was bom February 2, 1915;” “on about generalization this contends was sufficiently support finding broad the trial court that parents she been abandoned years for two before execution of the of adoption. deed does satisfy But the statute? Does the first (as adverbial appellants it) clause mean that construe must years have been abandoned its for two isit committed to the institution? The second adverbial clause before clearly contemplates year a two abandonment the institution' after If mean, received the that what child. the two clauses do then the year period cannot time both and after the child combine before committed, respondent go seems to think. we will no't into But question, theory even because on there could not year period been an executed, have over-all two before the deed was since the child born; could been before abandoned and her birth on February occurred thirteen months before the execution of the deed March finding respondent years
A that the was born two before the deed executed, require setting of that eleven months date pleaded February 2, expression date 1916. The “on or in the preceding about” deed pleaded date of birth cannot given interpretation an elastic. say supposed If one were centenarian was born or about year latitude perhaps some year. would be allowable as to the exact Or if one *6 1106
there indicate too birth either event necessity of is used near.” and means must be R. S. earlier. spondent’s says the Sec. far to 1675. again aof several way from the 1909; So “in 29 Words & based on the The words adopted child child construe we rights approximately, reciting the date of there However, being bound and we years before it conclude, was on or is stated with would might be Phrases that statement “on or about” specified general statute therefore shall not (italics ours) “shall have been if she had been by the statement of passing, happened in or about do about, (Perm. Ed.) permissible month. But appellants, an occurrence approximate without specified do not observe that Sec. covering a date force variance “On substantial put when it stop about the day, have and certainty. The phrase at the or About” ... exact date it is of a adopted time at is said' inquire time, month of variance eleven going month or two be entitled 1675 p. the recent escape Sec. large, 455. what re . entirely months merely from, July, . ,. adopted parent or their against children rights of lawful all the it, against to-the ex corresponding rights latter parents,” and the every pur “for But it does parents. of the natural clusion law, Mo. R. pose,” as does the 1917 now ours) (italics : general 9614. The 1671 is as follows Section any adopt or any person “If in this state shall desire to child heir, person as his it for such to do the children or shall be lawful acknowledged deed, by the same which deed shall be executed and person adopting county such or children recorded child executing same, person as in the case of of the residence of conveyance of estate.” real adopted It rights 1673 o'f such children.
And Section declares the says (italics ours) : recorder, the or filing
“From time of child deed with the right against person children have the adopted shall same same, persons support and maintenance and executing for by law, against proper treatment, has, and humane lawful as a child have, respects, enjoy parents; and such in all child rights executing all such deed privileges persons adoption. provision parties, This but is shall not to other extend ’’ wholly parties executing adoption. confined to deed of always
Section 1671 construed to mean the child would inherit as an heir of the adopting'parent the same as born in lawful Stewart, 962, 963; wedlock. id., Moran 122 26 v. Mo. S. W. 207, 217, uniformly 173 Mo. 73 S. W. it But held that rights of the child as an limited to heir were the estate of that'parent parents, make the an heir did not child representation property adopting parent, kin of collateral kinsman, which the latter if he would had survived such inherited Hockaday Lynn, 200 585, 118 Rep. 672, Mo. 98 Am. W. St. 8 (N. S.) Ann. 775/ Neither would the adoptive R. A. Cas. L. but, adopted -child, the heir of the latter
parent be heirs, Koppelmann, pass blood Reinders v. to its Hatton, held in Clarkson v. Similarly Rep. Am. 761, 762, adopted- 143 Mo. 44 S. W. that an would inherit parents,- from both its and its but would not adoptive natural *7 “bodily designation the,.adopting parent. the heirs” of come within 338, Reinders-Koppelmann case, In in 94 appeal a second the Mo. 290, 344, 288, appeared one- 7 S. W. devised the.testator and
half the remainder his land his “nearest and to lawful-heirs” hinged those of his wife. The ease on the those construction of words will, laws, opinion they and not on the intestate but the ruled in the adopted not include an the testator and his did another of child law, wife, holding they were heirs not the the contractual but adoption. Dorman, 611, A similar is Brock v. deed 613, case Mo. 674, (2d) 98 W. where the testator left a life 672, S. estate son, his land to remainder to the latter’s heirs. took opinion The cognizance foregoing decisions, question the held the was one of construction, testamentary intestacy, not adopted the son ruled contemplated came wdthin the the class the testator “heirs”.of case, life tenant. a Hill, Still Louis Union Trust Co. third v. St. (2d) 336 Mo. 76 S. W. construed a will which equal a life shares to all the children, left testator’s re mainder to their heirs' at law. One of the children had adopted opinion sons. The held were “heirs” of that within the child meaning of the That adoption will. law, under-the 1917 now’ R. Mo. opinion S. The *8 adopter’s kindred.
an heir of the the A other decisions are referred to few Respondent’s theory space them. to discuss take the time cannot an here hold be that since all the decisions seems to reviewed parent adopting heir of law child was the 1917, even under the the he therefore was the “lineal descendant” of within that think so'. This statute shows meaning of See. We do not the adop recognize former blood lines did those the same intention testamentary apply See. 528 does even devise tion statutes. not The unless- the named devisee was a blood the testator. relative of predecease if such a devisee testator his lineal statute the descend that share. It is' an-unnatural construction to this means ants take thereby stranger in to the testa diverted blood the devise parent, the an made the foster in which tor because of may nothing. he testator no' voice and which have known had about point calling discussion, briefly, The other the real here respondent’s property is contention that involved exempted residuary the clause the will in con specifically from of residuary sequence appellants of thereto as which no'title can legatees. Respondent evidently is This erroneous. has wholly will, mind 10 of real piece which deals with another of clause estate in Kansas. of the will It residuary The is clause 9. clause residuary Arends; appellant Henry leaves the one-third life, one-third to the testator’s brother Arends for the re William to, pass appellant mainder in that interest two-thirds to Mildred appellant Arends Hedrick and H. Barth one-third to Arends. remaining residuary go one-third under the clause was to Smith, sister Clara Arends predeceased testator’s who the testator alleged petition, leaving appellants in the as her issue Alma and Irene Smith Smith Smith, Marie LeMarr.. Lawrenc.e n judgment of circuit court reversed the reasons stated For proceedings to ascertain and remanded for further cause and the appllants under this fractional interests respective declare suit, described as follows: Lots which is real estate opinion Kansas, City an addition to the in East in Block 11 and also, 3I-V2, Missouri; feet of Lot City, the south Kansas, Kansas now City Kansas, now Swope’s Addition Lot 15 and : City, Missouri. Kansas remanded. Judgment reversed cause foregoing J., in'Division opinion PER CURIAM: The Ellison, opinion the Court' en Bane. All concur ex-
Two, adopted as the Gantt, J., absent. cept Clarify Opinion. Modify Motion to PER CURIAM on —The Crawford to be
judgment plaintiff-respondent below declared in land as lineal descendant interest owner of undivided deceased, meaning within the of Sec. Weber, Frank J. to him Mo., The land had been devised R. sec. 528. Weber, predeceased but he cousin, Emma Arends his first the will of the devise under that statute In these circumstances textatrix. natural or blood But he left no his “lineal descendants.” go question his child. The heirs; respondent merely was [7] Weber descendant” of such, a “lineal whether, as she was the case was not, in fact meaning We held view of the statute. within the adopted March when See’s been these two sections force, taking the view that 1909 were give rights of a blood together did considered heir Frank Weber as the testatrix. adoption in 1916 the year after But within *9 by thereof, Laws ones enacted in repealed and new lieu
statutes one, which is now. Sec. Particularly Mo., p. 194. provisions than the broader 1939, Mo., R. S. contains be child “shall thereafter deemed law, saying former by parents every parent its or purpose, the child of be for to held wedlock;” and fully though born them lawful as to adoption, as ‘‘ from, of said inheriting the child capable of as shall be ’’ though to them as born in lawful wedlock. fully as at trial below stated, conceded already it was As so) govern respondent’s correctly (and this Sec. 9614 did enacted; had been before was rights because she 1909 law. theory, applying case principal opinion rules the that, days July 20, Five delivered on 1943. opinion Assembly (Laws July 15, General a new statute enacted follows: 353) See, 9616a, reading as be known p. agreement adoption adoption or adopted by deed of “Any person filed for instrument was wherein said writing prior be be deemed and hereafter held July 1, shall prior to record adoption parents by its purpose for every wedlock, adoption and such though in lawful fully to them born adoption the pro- force and effect as under the same ’’ rights. including inheritance chapter, visions this she was the terms of this Act since within Respondent comes filed deed was prior written deed July 1, prior to 1917. The cause was transferred for record opinion written, for where the en banc from Division court to file a motion to permitting counsel purpose sole It respect with the new Act. will modify clarify opinion adopted person “shall be noticed the section hereafter refers held,” “her’eafter” as thus word used deemed etc. The Ed.), (Perm. &Phrases the Act takes effect. Words date when and the p. 389. It is obvious that the construction of statute been a matter respondent’s rights it were not and could not have adjudication court; is here the trial since this record appeal are cannot treat confined issues in that court. We original proceeding meaning the cause as an and determine effect of the statute. modify clarify
The motion to dr overruled. All concur therefore except Gantt, absent.
Minnie E. Administratrix of the Estate of Samuel Johnson, Railway Johnson, Deceased, Corpo v. Southern Company, Appellant. (2d)
ration, 38571. 175 S. W. 802. No. One,
Division October 1943. Rehearing Denied, November Overruled, Motion to to Banc December Transfer notes law, observing radical between that prior difference statute -the .and that under the latter the relation of was confined child kin-, deed of all excluding collateral present whereas the statute makes it become the adoptive child of the n every purpose. opinion In this connection the said the for Legislature right had the “change stream,” thus though blood adopted an child would still “an heir body.” not be of the All these changes presumed been known to the testator he when made his will. Leeper Leeper, 442, 448(2), In (2d) 660, 147 S. W. 662(2), father while Sec’s 1671 supra, were in force, L life, to his deeded land son remainder “to his heirs, but should die without children he then his full brothers their ’’ Later, heirs. after the adoption law, the -1-917 grantee L adopted Held, a son. reviewing after nearly
Notes
[6] 'cited
cases
here,
grantor
that the
did not intend to
include L’s
a remainderman.
comparatively
case,
In a
McIntyre
recent
v. Hardesty,