In re Smith's Will, 95 Vt. 97

95 Vt. 97 | Vt. | 1921

Watson, C. J.

The statute required the instrument of adoption to be filed in the office of the probate court of the district in which the person making the adoption resides, being a resident of the State, and that such instrument should be signed and sealed by each party and acknowledged by each before the probate judge in whose office it is filed. But in the instance under consideration, the person, Yiola Chapell, sought to be adopted, being a minor — she was then only six years of age — the instrument of adoption was to be signed, sealed, and acknowledged on her part by one of her parents, or, if under guardianship, by her guardian; and if the minor had no parent or guardian, or her parents or guardian had abandoned her care and support, or was, in the opinion of the probate court, incompetent to have the care and custody of her, the instrument of adoption could, with the consent of the probate court, be signed, sealed, and acknowledged on the part of the minor by the first selectman of the town in which she resided. G. L. 3757.

It should be borne in mind that adoption by agreement under the provisions of the statute, is not judicial in nature, and so what is commonly said as to the necessity of jurisdictional facts appearing on the face of the record, has no application. In re Camp, 94 Vt. 455, 111 Atl. 565. The question more particularly is: Were the papers executed in such substantial compliance with the form prescribed by statute as legally to effectuate the purpose intended? Bancroft v. Heirs of Bancroft, 53 Vt. 9.

The word “minor” is not used in the agreement of adoption; but the name of the person sought to be adopted is there given, and she is later referred to in the body of the instrument as “said child”. The context prima facie shows the word ‘‘ child ” to be there used in the sense of a young person of an age less than maturity, in other words, a minor, as distinguished from a person of age who may be adopted under the provisions 'of the preceding section, of the statutes. We think the agreement of adoption in this respect is in substantial compliance with the prescribed form, and on its face is sufficient. Abney v. De Loach, 84 Ala. 393, 4 South. 757.

It is further urged that the record (of adoption) ought to show why a selectman signed the adoption paper, instead of a parent or guardian. The statute had the further provision that “if it appears to the probate court that the law has been complied.with, such instrument shall be recorded in the probate office where it was filed.” V. S. 2861, now G. L. 3762. The instrument in question was signed and sealed by the parties, on the part of the minor by the first selectman of the town in which she resided, and, being so sealed and subscribed, it was acknowledged before the judge of probate, in due form required by law. It was then recorded in the probate office where filed.

The acts performed by the judge of probate, although ministerial, were of an official nature, and„the execution of the instrument having been in a manner to be had only in certain circumstances specified by statute, and with the consent of the probate court, and the instrument being recorded in the probate office where filed, we think a case is presented where, clearly, the principle applies that everything is presumed to be rightly performed until the contrary is shown. State v. Potter, 52 Vt. 33; McKillop v. Burton’s Admr., 82 Vt. 403, 74 Atl. 78; In re Hunt, 85 Vt. 345, 82 Atl. 178. See Cook v. Bartlett, 179 Mass. 576, 61 N. E. 266, involving compliance with the provisions of the same statute of this State.

Under the adoption Yiola took the name of Emma Louise Smith, and became the legal heir to the property of the adoptors. She went to live with her adoptive father in the year 1899, thence continuing to live with him until his death in 1918. He left no wife surviving him, and no child other than the said Emma Louise, now by marriage Emma Louise Basso.

Respecting the right of inheritance, it has been held that the words “between the parties,” in the section of the siatute declaring the effect of adoption, are intended to limit such right of the adopted person to inherit from the adoptor or adoptors, and to this end they in effect negative any right to inherit by right of representation. G. L. 3762; In re Walworth’s Est., 85 Vt. 322, 82 Atl. 7, 37 L. R. A. (N. S.) 849, Ann. Cas. 1914 C, 1223. For twenty-five years preceding the making of said will the statute was, and hitherto has been, that the word issue, as applied to the descent of estates, personal as well as real, shall be construed to include all the lawful, lineal descendants of the ancestor. R. S. Chap. 4, Sec. 7; G. L. 11! And not until twenty-eight years after the testator’s death was the child Viola Chapell born. However, the statutes to which reference is here made, and the facts mentioned in connection therewith, are significant only as they bear on the construction to be given to the testamentary clause in question, as to which the intention of the testator is to govern. There is nothing in the will indicating that he had in contemplation the possibility that any one of his children therein mentioned would die leaving an adopted child surviving; nor that by the provision whereby, if any of his said children should decease “leaving issue, the share of said deceased shall be expended for the support of such issue, ’ ’ he intended the word “issue” to include any person or persons other than those who would be entitled to. take under the statute of descent, namely, his own “lawful, lineal descendants.” We think the rule that a gift of personalty to “heirs” merely is primarily to be held to be to those who would be entitled to take under the statute of distributions (Hodges v. Phelps, 65 Vt. 303, 26 Atl. 625; In re Irish’s Will, 89 Vt. 56, 94 Atl. 173, Ann. Cas. 1917 C, 1154), should be applied here; and by it, in the absence of words in the will showing that the testator used the word'“issue” in a sense different from that above indicated, he is presumed to have used it in that sensé. Staymen v. Paxson, 221 Pa. St. 446, 70 Atl. 803; Jenkins v. Jenkins, 64 N. H. 407, 14 Atl. 557.

It follows that Emma Louise Basso is not entitled to any part of the income of the Samuel Smith trust fund, and the decree below cannot be sustained.

Decree reversed, and cause remanded to the probate court for further proceedings in accordance with the views here expressed. Let the appellants recover their costs of this appeal.