Cast on demurrer lodged below, plaintiff stood on ber petition, submitted to judgment and appealed.
The case is this:
In 1900 William E. Lynn, a bachelor, died intestate, seized of an undivided half interest in a farm of 295 acres in Cass county, leaving surviving him a brother, Cicero, and nephews and nieces (the children of a deceased brother and the children of a deceased sister) and their descendants. The deceased brother (James Lynn) diedin 1896, leaving one son and also an heir by adoption, the plaintiff, now intermarried with one Hockaday.
Plaintiff’s theory being that she was an heir of her adoptive father’s brother, William E. Lynn, she sued Cicero and said surviving nephews and nieces (and the descendants of those dead) in partition.
In addition to conventional averments, plaintiff pleaded her adoption, her intermarriage with Hockaday, and further set forth an adjudication in her favor establishing her right as an adopted child of said James Lynn. [See Lynn v. Hockaday,
Defendants ’ theory being that plaintiff took nothing as heir to the brother of her adoptive father, and all the facts appearing in her petition, they demurred with the result aforesaid. Such demurrer conceded the truth of every averment well pleaded in the petition, hence the issue below became one of law. It is, moreover, one of first impression in this State, and may be formulated, thus:
Does an adopted child, by reason of such adoption, become an heir to the real estate of a brother of her adopting parent who died after such parent, intestate?
Or, put another way, as formulated by defend-ants’counsel: “Does the adoption make her an heir only to the property of James Lynn, the adopting parent, or does the adoption make her an heir by representation in all the property which might have come to
The question presented being new, its answer must be got at by attending to the history of the law of adoption, its growth, the Statute of Adoption, the Statute of Descents and Distributions, the analogies of the law to be searched out in cases decided by this court on related questions, and to the persuasive authority of the pronouncements of the highest courts of other States.
Adoption was unknown to the old common law of England. [Ross v. Ross, 129 Mass. l. c. 262; Schouler’s Dom. Rel. (5 Ed.), sec. 232.] It was known to the Roman law, was attended by ceremonial dignity and was of deep meaning and far-reaching* results — a notable historical example of which is cited by Napton, J., in Reinders v. Koppelmann, 68 Mo. l. c. 496 (from the leading* case of Vidal v. Commagere,
“Adoption,” says Merrick, C. J., in Vidal v. Commagere, supra, “was known to the Athenians and Spartans, as well as the Romans and ancient Germans, and was familiar to the writers of the New, if not the Old Testament.” [See, also, In the Matter of Upton,
It seems to have taken root in Egypt (Exodus 2:10). Paul, himself a lawyer profoundly instructed in Hebrew jurisprudence, assumed the doctrine of adoption to be well known to his readers, and borrows the use of the doctrine as a hammer to clinch nails driven by him on matters of faith. [Rom. 8; 16, 17. q. v.] The doctrine was not unknown to the Babylonians — witness the Code of Hammurabi, compiled from 2285 to 2242 B. O. Sections 185 to 193 inclusive of that code are curious and read as follows:
“Section 185. If a man has taken a young child*462 ‘from his waters’ ” (like Moses was taken by tbe daughter of Pharaoh,-possibly, g_. v.) “to sonship, and has reared him np, no one has any claim against that nursling.
“Section 186. If a man has taken a young child to sonship, and when he took him his father and mother rebelled, that nursling shall return to his father’s house.
‘ ‘ Section 187. The son of a NER-SE-G-A, a palace warder, or the son of a vowed woman no one has any claim upon.
“Section 188. If an artisan has taken a son to bring up, and has caused him to learn his handicraft, no one has any claim.
“Section 189. If he has not caused him to learn his handicraft, that nursling shall return to his father’s house.
“Section 190. If a man the child whom he took to his sonship and has brought him up, has not numbered him with his sons, that nursling shall return to his father’s house.
‘ ‘ Section 191. If a man, after a young- child whom he has taken to his sonship and brought him up, has made a house for Mmself and acquired children, and has set his face to cut off the nursling, that child shall not go his way, the- father that brought him up shall give to him from Ms goods one-third of his sonship, and he shall go off; from field, garden, and house he shall not give him.
“Section 192. If a son of a palace warder, or of a vowed woman, to the father that brought him up, and the mother that brought him up, has said ‘thou art not my father, thou art not my mother,’ one shall cut out his tongue.
“Section 198. If a son of a palace warder, or of a vowed woman, has known his father’s house, and has hated the father that brought him up or the mother that*463 brought him up, and has gone off to the house of his father, one shall tear out his eye.”
Adoption was also an incident of Spanish law, was incorporated into the Code Napoleon, and from that code (or the Spanish law) found its way through Louisiana and Texas into the statutes of their sister States. [Tiffany’s Per. & Dom. Rel. sec. 112; Ross v. Ross, supra; Reinders v. Koppelmann, supra.]
As shown by Napton, J., in the Reinders case, our statute was not directly borrowed from the Roman law, and is, therefore, not attended with all the incidents of that law — one incident of which was that the adopted child took on the full rights of a child in its new family and lost its birth rights, becoming a stranger and an alien in the family of its origin.
Prom the twilight of remotest time it was considered that the “life of the flesh was in the blood.” [Lev. 17: 10,11, 12.] Blood was of the mysterious essence of religious rites. The blood atonement, the blood tie, to have the same blood run in one’s veins, to be bone of the bone, flesh of the flesh, were of the essential elements of things, earthly and spiritual. Hence, when the Mingo chief exclaimed, “There runs not a drop- of my blood in the veins of any living creature,” the picture of his savage desolation was made complete at one stroke.
Nevertheless, it is pointed out by those scholars who have dug up the origin of things from the dust of the past that the yoke of the blood tie, in this age or that, lay loosely on ancient peoples. It is shown that children might be lawfully exposed (devoted) to death, fed to beasts, burned in the red hot bowels of war idols, sacrificed to vows — witness the fate of Jepthah’s daughter and the fate of Iphigenia, the child of Agamemnon ’s loins; and vacancies were filled by transplanting, or, to put it otherwise, grafting was allowed. Especially was this transplanting in vogue during the
Adoption being unknown to the common law and in derogation of it, statutes of adoption have always been more or less strictly construed as against the adopted child. [Keegan v. Geraghty,
Speaking of this plaintiff, Valliant, J., in Lynn v. Hockaday, supra, p. 126, says: “Like a bud that has been cut from its natural stem and grafted into a foreign tree, she grew into the family and became a part of its very life — everything that adoption contemplates was accomplished.” That metaphor, chaste as a gem, does not mean, nor was it intended to mean, that plaintiff passed current as an heir, made such by the mold and stamp of consanguinity. It means that as between her and James Lynn she was given “everything that adoption contemplates” — that and no more. So, too, Black, J., in Moran v. Stewart, 122 Mo. l. c. 299, says: “Eor all the purposes of inheriting from the adopting parent the adopted child becomes, and is, the lawful child of such adopting parent.”
It appears, then, that the event of adoption fixes
Osborn, J., speaking to the point in Barnhizel v. Ferrell, 47 Ind. l. c. 338, says:
“By the act of. adoption, the child is entitled to inherit from his adopted” (adoptive?) “parent as his heir, in the degree, .of a child. [Barnes v. Allen,25 Ind. 222 , 226.] The act does not provide that he shall be the child of the adopting parent, but he shall take the name, and be entitled to take his property by descent or otherwise, the same as he would if he was his child or natural heir, and the adopting parent shall occupy the position toward the . child of a father or mother, and be liable in every way as such. In Schafer v. Eneu, 54 Pa. St. 304, it is said: ‘ The right to inherit from the adopting parent is made complete, but the identity of the child is not .changed; one adopted has the rights of a child without being a child.’ And in Commonwealth v. Nanerede, 32 Pa. St. 389', the same court say: ‘Giving an adopted son a right to inherit, does not make him a son in fact. And he is so regarded in law, only to give the right to inherit. ’ ’ ’
In Schafer v. Eneu, supra, Strong, J., further said: “Adopted children are not children” (i. e., by the law of nature) “of'the person by whom they have been adopted, and the Act of Assembly does not attempt’the impossibility of making them such.” Indeed, it may be asked: Which of you by taking thought can add one cubit to his stature? No more, then, can A, by taking thought (i. e., by making a contract) máke a stranger of blood kin to A’s own kindred — make an adopted child have inheritable blood to A’s collateral kin.
True it is that laws of descent and distribution are subject to arbitrary change by ■ the law-making power, but to arbitrarily change them so as to repudiate or eliminate the basic principle of blood kinship would breed trouble and dismay. So deep does that notion run in the human breast and through our case-made law that if it be ignored in a will the fact of such unhappy and unnatural disposition of property may be put in as evidence tending to show testamentary incapacity, or undue influence, and when united with other facts, may be sufficient to set the will aside. [Meier v. Buchter,
An analysis of Revised Statutes 1899, section 2908, of our Statute of Descents will show how closely it adheres to blood kinship in the devolution of estates. By that section the property (not limited by a marriage settlement) of one who dies intestate is made to descend in parcenary to “Ms kindred,” male and female, subject to the payment of debts and the widow’s dower. The word “kindred,” in its primary legal acceptance, means “relatives by blood.” [Black’s Law Dict., Tit. “Kindred;” Keteltas v. Keteltas,
The idea of blood kinship is sharply accentuated by section 2911 of the same statute. That section directs that when inheritance is directed to pass to the ascending and collateral kindred of the intestate, if part of such collaterals be of the whole blood of the intestate, and the other part of the half blood only, those of the half blood shall only inherit half as much as those of the whole blood, etc.
The Supreme Court of Indiana, in an adoption case, Humphries v. Davis,
Referring to the foregoing general rules for finding a place for a new statute, setting bounds to its orbit, and making it dovetail into and become harmonious with a general system of law, it may be said this court has applied the same principles in effect. Thus, in Moran v. Stewart,
In fact, it may be laid down as a general conclusion that while the Statute of Adoption must be read into the Statute of Dower and that of ■ Descents and Distribution, it is with this singularity, always to be observed, viz., that the adopted, child is so let in only for the purpose of preserving in full its right of inheritance from its adoptive parent; and the door to inheritance is shut and its bolt shot at that precise point.
If we look to our Statute on Adoption it will be found to be writ large there that an adopted child bears only the badge and relation of child to the adopting parent. In Revised Statutes 1899, section 5246, it is provided that “if any person in this State shall desire to adopt any child ... as Ms or her heir or devisee, it shall be lawful for such person to do the same by deed,” etc. The very next section (section 5247) provides that: “A married woman, by joining in the deed of adoption with her husband, shall, with her husband, be capable of adopting any child or children.” It will thus be seen that, in the legislative mind, the effect of the adoption of a child is restricted to the adopting parent, and, hence, the adopted child does not become the child of a married woman by the adoption of her husband, but to become such child the adopition must be joined in by the wife.' If this be true of
Defendants argue that aid for their theory may be had from section 5248, which provides in substance that from the time of filing the deed of adoption with the recorder the adopted child shall have the same right against the person or persons executing the deed, for support and maintenance and for proper and humane treatment, as a child has by law against lawful parents; and shall have and enjoy such rights and privileges against the persons executing the deed of adoption — the last clause of that section reading: “This provision shall not extend to other parties, but is wholly confined to parties executing the deed of adoption.” This section has been up for construction more than once. The most elaborate effort in its exposition was in In. The Matter of Clements, 78 Mo. l. c. 355, where Hough, C. J., for this court, put this construction thereon, to-wit, that its peculiar language refers to the custody and control of the child adopted, and “as the Legislature had no power to authorize one person, whether acting from motives of charity, benevolence or caprice, to transfer to himself at his own electing, the custody and control of the child of another,” nothing in that section should be binding on the natural parents of the adopted child without the consent of such natural parents, which consent might be evidenced by joining in the deed. This section, therefore, throws no light on one side or the-other of this controversy except there may be some ■ slight evidence found therein of the trend of the legislative mind toward binding no one to the event of adoption except the actual parties to the event.
As said heretofore, the exact question presented has not been adjudicated by an appellate court in this State, but by analogy certain postulates may be established, the trend of the judicial mind may be got at and a sound conclusion reached.
Again, it was held in Clarkson v. Hatton,
It was held in Reinders v. Koppelmann, 68 Mo. supra, that the estate of an adopted child (on his death intestate) will go to his blood relations, and not to his relations by adoption. It’s a poor rule, won’t work both ways.
In Reinders v. Koppelmann,
“If, however, the testator had not hung out this light, hy which his meaning may he easily read, it would seem that the very terms, ‘nearest and lawful heirs,’ would he sufficient to exclude the idea of an adopted heir; the status or relation of an adopted heir is a lawful one, since the law sanctions and provides a method for its creation, but the relation is not the creature of the law, hut of the deed of adoption; a child hy adoption is, in a limited sense, made an heir not by the law, hut hy contract evidenced hy deed; adopted heir or heir hy adoption would he appropriately descriptive of such relation; contradistinguished from such an heir are those upon whom the law-casts descent, who are constituted heirs hy law; these are appropriately described as heirs-at-law, or heirs hy the law. This distinction would, of course, he of little value in construing the will of a layman, if it were not almost universally and unconsciously recognized in the affairs of life; and that in common parlance we find that the terms, heirs-at-law and lawful heirs, are used indiscriminately as synonymous and convertible terms, and whenever either is used, they are invariably referred to the heirs upon whom descent is cast hy law, and not to an heir hy adoption. The relation of an heir hy adoption is an exceptional and unusual one, and' does not come within the ordinary and usual meaning of the words, lawful heirs, and those words ought not to he held, ex vi termini, to include an adopted heir, hut when the testator uses the further and qualifying word ‘nearest,’ it would seem that one who is simply and only an heir hy deed, deriving all his rights from the deed of adoption ■executed long after the death of the testator, and none against any person other than his adoptive parent, must, hy the very terms of the will under which he •claims, he held to he excluded.”
Considering the history and Statute of Adoption, "the force of the foregoing rulings, and the reasons un
If we look elsewhere for persuasive authority, we find the exact point (and points involving similar contentions) uniformly held against plaintiff’s theory. To this effect are Van Matre v. Sankey,
The doctrine to be gathered from the foregoing cases is announced to be, in effect, to deny the right of the adopted child to succeed to the estate of any memr ber of the adopting family other than the adopting parent, and that such adopted child does not succeed to the estate of ancestors or collateral kin of the adopting parent, nor to the estate of children bom to the adopting parent. [27 Am. and Eng. Ency. of Law (2 Ed.), 334; 1 Cyc., 933.]
Though plaintiff’s learned counsel have industriously collated cases from other jurisdictions, yet we find on examination they have cited us to no case holding a doctrine contrary to. the above. Those cases apparently squinting at a contrary view, as, for example, Stearns v. Allen,
But, it is argued by plaintiff’s learned counsel that such interpretation of the law puts too sour a complex
It is finally argued that such interpretation puts an adopted child in a worse plight than a bastard — a bastard being allowed to inherit from his mother’s brothers. [Moore v. Moore,
Hence, the judgment below must be affirmed.