109 Iowa 159 | Iowa | 1899
I. On the 4th day of October, 1884, Henry G. Bernard and his wife, the defendant Catherine Olaude, duly executed a joint will, in which they devised to each other all property which either might own at the time of his
III. Said section 2309 also provides that such instruments as that in question “shall be recorded in the recorder’s office in the county where the person adopting resides, and shall be indexed with the name of the parents by adoption as grantor, and the child as grantee, in, its original name, if stated in the instrument.” This instrument was duly filed for record March 23, 1889, and was. indexed under the letter B, as follows: “Bernard, Emma Sophia, adopted, 69,” — and under the letter II, as follows: “Ilazelman, Emma Sophia,
IV. This brings us to consider whether this legal adoption of the plaintiff has the effect of revoking the previously
“See. 2307. Any person competent to make a will is authorized in manner hereafter set forth, to adopt as his own the minor child of another, conferring thereby upon such ichild all the rights, privileges, and responsibilities which would pertain to the child if born to the person adopting in lawful wedlock.”
“Sec. 2310. IJpon the execution, acknowledgment, and filing for record of such instrument the rights, duties, and relations between the parent and child by adoption, shall, thereafter, in all respects, including the right of inheritance, be the same that exist by law between parent and child by lawful birth.
“Section 2311. * * . * But no action of the court ip. tiie premises shall affect or diminish the acquired right*165 of inheritance on the part of the child, to the extent of such right in a natural child of lawful birth.”
Jf deceased had left no will, there could be no question of plaintiffs right to share in his estate as his child, under section 2453. Plaintiff’s contention is that her adoption by the deceased has the same effect upon his previously executed will as if she had been bom to him in lawful wedlock at the time of her adoption. Defendants cite section 2329 of said Code, as follows: “Wills can be revoked in whole or in part, only by being canceled or destroyed by the act or direction of the testator with the intention of so revoking them, or by the execution of subsequent wills.” They insist that wills cannot be otherwise revoked, and that, as this, one was not so revoked, it is in full force. In Alden v. Johnson, 63 Iowa, 126, this court said: “The sole question in the case, namely, whether the birth of the daughter after the execution of tire will, in law, operated to revoke it, is presented upon the pleadings in the case, which need not be particularly recited. This court has often ruled that the birth of a child of the testator operates as a revocation of a will before made,”— citing cases. This is conceded to be the law in this state, and it is clear therefrom that formerly the revocation of wills was not limited to the modes provided in said section 2329. Section 3216 of the present Code provides that “the subsequent birth of a legitimate child to the testator before his death will operate as a revocation.” Under section 2335, Code 1873 (section 3279, present Code), the birth of posthumous children does not revoke the will, but the interests of heirs, devisees, and legatees are charged ratably in favor of,the child.
Y. Having found under the Code of. 1873 the subsequent birth of a legitimate child to the testator before his death operated as a revocation of his prior wills, we now