*1 witness, therefore, there was no bar, Blake was not In the case at taking appellant’s not consent to direct evidence that did any competent evidence of circum- oars, and boat. Nor is nets there property was taken without stances that would tend to show that upon by relied State show Blake’s consent. purported confession that he killed appellant’s lack of consent was There no just Blake. We ruled this was not admissible. alleged property. evidence that tried to conceal the stolen anyone by. contrary, passed plain On the it was in view This larceny (36 914), Corpus is insufficient to a conviction of Juris sustain appellant’s demurrer to evidence should be sustained. judgment From what we have it follows that trial discharged. prisoner court should be It is so ordered. reversed and Leedy, JJ., Ellison concur result. Wm. Hardesty,
Albert Appellant, Pearl Clementine Evans, Taylor, William Thomas Oscar Goldie Tingle Myrtle Vancil, Burress, Mabel Bell Jones Jones Way Hardesty. 149 Elwood W. Thomas
April 3, 1941. Sizer, Kelsey E. P. Norman, Henry K. Lee and Warten for Alfred appellant. *2 respondents.
C. S. Walden for COOLEY, sought plaintiff this action decreed C. McIntyre, great-grandson Bert L. as such the deceased, Cunningham, of Tabitha T. and entitled to share Cunningham in her (Mrs. interchangeably estate. called Tabitha.) Tbe court denied tbe relief record Tobitha and circuit prayed has appealed. age. Cunningham at an advanced She had
Mrs. died testate in children, daughters birth four son dis- to five son. many appeared years ago has since heard of. Two been daughters mother, leaving predeceased their descendants. daughters, Taylor other two Jennie survive. One the deceased son, claimed, left L. who it is Bert de- plaintiff, wherefore it is claimed should be Cunning- great-grandson creed to be his heir son and a of Mrs. ham, having grandson. said Bert L. L. her Bert died in 1921.
In 1926 Cunningham disposing estate, Mrs. her made will which was considerable personal property. and consisted both real and daughters grandson, Two of her were then dead and her Bert L. Mc- *3 Intyre, Later, codicils, material, was dead. two not here were added. Cunningham her will provision Mrs. made for her de- various scendants, original but did not in or either the will the codicils mention appellant, will, he pretermitted therefore is a heir. The contends with codicils, duly its probated. was
Plaintiff He, was born about March 1917. then called Howard Henry, very immediately, soon, was almost or at lease committed an Home, by institution operated called the Childrens’ a board called Board, Home Joplin, McIntyre Childrens’ at Missouri. Bert L. wife, and his Alma, adopt were childless and wanted to a child. The got Board them, resulting above mentioned in plain- touch with that tiff was to them. changed His name was to be and was to Albert McIntyre. William A deed of whereby out was made relinquished McIntyres Board plaintiff who, by deed, agreed said to adopt they plaintiff and said did as their child and heir “as they as by are empowered law support, to do” and educate and maintain him and bestow him care and “the treat- ’’ ment due from knowledged by signed to child. That document was and ac- McIntyre Mrs. March 17, 1917, by on L. Bert McIntyre on recorded, March It was never as the then law, See. B. required. (now Plaintiff’s mother foster Ferguson') Mrs. Meade, testified a Mr. that of the Childrens’ Home Board, with whom husband, she and her then McIntyre, nego- Bert L. tiated for adoption, them advised not to record it because there was then pending Assembly the Missouri proposed General enlarge law that privileges would child. The “proposed” law was later enacted and will be referred to hereinafter.
Plaintiff was McIntyres, taken to the home of the where he thereafter lived as a family, conducting member of son, himself as a dutiful being by son, held out treated them as known by their name know till not he did is said Albert William son of not the
shortly was this suit was filed that he before no doubt be there can all the evidence parents.’ said foster Under would be McIntyre, the former plaintiff as Bert L. between McIntyre. Bert L. said entitling him to take from entitled to a decree For the We shall refer to trial court so found. later.] [The tending it is detail the reasons indicated parents. foster plaintiff and his show the relations between is the plaintiff The learned trial court found fact accomplished an McIntyre L. was Bert and that taken as be 1917; date (it on immaterial whether March is when Mrs. 17th, March when the was made verbal Bert L. 20th, McIntyre deed,” March when signed “adoption the it); was the plaintiff force McIntyre signed the law then in him, but not L.'McIntyre heir of to inherit Bert entitled “enlarged” ancestors; entitled inherit from his not conferred on inheritance created the 1917 law were thereafter persons limited to who are class are those adopted in accordance 1917; never plaintiff said Act of latter is with Act of Court. decree Juvenile [The adjudged conceded therefore court fact.] Bert L. Cunningham) entitled (Mrs. inherit from ancestress complains, adjudged against plaintiff. Neither side finding or under court’s complain, the evidence can father, adopted child, would foster take, entitled to his is, McIntyre. Bert L. take can he Cunningham? Because, if grandmother, foster father’s Mrs. heir. Bert L. to "inherit from it must as her her *4 dead, when was made. was not when testatrix her will the died question to this: Plaintiff does
It seems to us the narrows statutory contend, adoption. contend, not cannot that there was ever 1673, adoption law,” 1909, 1671, Under a deed of the “old R. S. secs. though recorded, But, not had to was recorded. and this one be recorded, adopt, be which a it could evidence of an Matthews, 362, court of 337 Mo. equity Ahern v. enforce. [See found, (2d) assuming 85 But, that, S. W. as the trial court 377.] the occupy was entitled to be decreed status of McIntyre him, make him Bert L. and to does that inherit McIntyre’s This of said ancestors or collateral kin? Hockaday opinion by J., was in learned in discussed Lamm, Lynn, 456, 585, 200 Mo. an adopt 98 W. wherein it was held that S. law,” ed under what we called the “old —while child— become an adopting to inherit from his did not thus parent, heir of adopter’s the collateral kin. And such is the con So, 1673, struction of “old R. even law.” S. [See 1909.] statutory if plaintiff actually adopted had been in under said manner not, law,” adoption” he was was never “old since “deed 1671, Matthews, 1673, 1909, Sections R. Ahern v. recorded—see S. adopter’s conld uot thus have an heir of an supra become —He Therefore, kin. cestors or collateral [Hoekaday though, found, even as the trial court he was an entitled to decreed Bert L. adopted son of and entitled to “inherit” or take 306, from Mm under our (Sec. Statute of Descents and Distribution 1929, Ann., p. 194), necessarily R. S. Mo. Stat. it does not follow that McIntyre’s he was entitled to as an heir from Bert L. an inherit said lawyer cestress or collateral kindred. A friend of the writer used say, “property thought emphasized, blood.” That I follows think, Hockaday in Lynn, supra, construing in then statute. present adoption law 1917, part of Missouri is the Act of now 125,
of Chapter seq., Article et Mo. Stat. Ann., p. 822, seq. by Assembly et It was enacted the General at its session, approved 10, 1917, was April Governor became effective appears force, June 1917. It thus it was not had Assembly, been enacted even General when it is claimed plaintiff’s “adoption” adoptive to made on March 17 or March pointed “adop As we have out that accomplished statutory tion” was not under the then existing any statute and there was never under the of the 1917 Act.
Plaintiff jurisdictions cites numerous holding, cases from other effect, Legislature lawmaking body may confer —the — right, capacity, to inherit as of the date of decedent, the death though right capacity did not exist under the law in force at the Most of time them are statutory cases where had there stat- creating utes relation of parent and child between adopter adopted. necssary analyze We do not believe it those decisions or the they statutes on which are based. Our own stat- govern. ute must found,
Grant as the trial court was entitled to be de- creed the McIntyre. son and heir of Bert L. As we have McIntyre’s cannot take as Bert L. heir, but, all, if at as Mrs. Cunningham’s heir. In St. Louis Union Trust Co. v. 336 Mo. court, banc, en said in effect, substance and that the lawmaking body (at least for inherit- —the —can able purposes), “change the blood an adopted stream” of child. Grant *5 that. Legislature Grant also that the has the prescribe to how property the of a disposed decedent shall be of. I can make a stranger my to my blood heir, I, child and but can without sanc- tion,- make person my heir of brother or sister or other collateral kin, not even know of the adopted existence of such person ?
810 Ilookaday out not, supra., T v. bears this I and think think conclusion. to of 1917 law and its come then consideration the
We the In v. possible effect in instant case. St. Louis Union Trust Co. Hill, supra, rights adopted court said of children are the 14079, 1929, Ann., (contained R. p. forth S. Mo. Stat. 826 set Act), section, quoted portion 1917 and a emphasizing in the quote, which here as thereof we follows: “When a provisions child is in accordance with the of this article, rights all and .all relationship, duties, between such parents, child and shall its natural cease and determine. Said child every shall thereafter deemed held to be for child purpose, the parent by adoption, parents though its or born to them ’’ in lawful wedlock. quoted The court old 1673, 1909, also said that the repealed law, 1917 Act said former l. c. Mo. (2d) S. W. l. c. 688:
“By comparing these we Legislature sought two sections see that the radically change rights the children from that year prior existed 1917, 1917. Under the statute in force legal by of adoption, made deed and the stat- expressly ute relation parent stated was confined child parties to the deed. excluded all collateral adoption. It kin procedure required provisions under the present terms of our adoption statutes are such complete constitute new and Code governing adoption rights of children and flowing and relations ’’ therefrom.
In said ease of St. Hill, Louis Trust Union Co. v. the court cited approval with Shepherd Murphy, 332 Mo. (2d) 61 S. W. (61 wherein “Eeverting l. c. 748 it is said: [3-4]) to the section (Sec. 14079, above set out E. S. it will supra) noted therein expressly declared that after (Italics . . ours) .” the adopted child shall be deemed every purpose” (Italics case, supra) court’s the Hill “for parent parents by child its or Act, Prior the 1917 could aby child adoption, deed of executed and re corded as the required, then statute asking obtaining without consent the child’s affecting natural and without the inherit able between the child his or her parents. natural [See Hockaday Lynn, supra; St. Louis Union Trust Co. v. radically Act changed the relationship of an child (adopted pursuant provisions Act) of to his or her adoptive parent parent. but to or her Shepherd In Murphy, supra, was held that the natural (adopted Act) of the could inherit the child. apparent So Act of *6 radically “sought change rights that to of children from year existed to the 1917.” v. that Trust Co. Louis Union [St. procedure changed Not was the but for rights adoption pursuant to that statute arising and relations radically changed. were
Grant, as we have Trust as was held in St. Louis Union Hill, supra, “change Co. has the were, blood stream” purposes, keeping for inheritable mind, also, according humanity instincts of (see Hockaday country based thereon Lynn, statutes supra) consanguinity given has been important recognition so effect in (see Hockaday Statutes of Descent supra), should it not be legislative held that a radically changing Act so relations adoptive child to adopting par- also to such parent his ents’ collateral kindred should show such intent? We quoted certain provisions have supra,
. “when a child adopted'in is provisions accordance with the of this article,” etc. Other may of the Act appropriately be re By ferred to. Sec. Mo. Ann., (unless Stat. p. otherwise indicated references (Mo.) hereinafter will be to R. S. 1929, Mo. Ann., p. 822, Stat. seq.), provided any et person is desiring adopt another his petition the Juvenile Division of Court, etc., permission the Circuit for so to do. brev [For ity we call this the Juvenile If age the child is over Court.] years he twelve must consent twenty-one to the If under years age, guardian must consent. [Sec. 14074.] are certain exceptions regarding consent, not here [There material.] Section 14075 provision makes for certain to whom chil institutions dren been committed act in adoption proceedings. By Sec. 14076, if the requisite given, consent has been the court must require notice to parties interested, specified. as therein 14077, provision Sec. ad appointment is made for guardian of a litem for child, necessary. By if provided when the preliminary steps consent, as to notice, etc., have taken, court, if hearing” “after due adop satisfied that tion should decreed, may make a “setting decree forth the facts the date ordering decree the child shall, to all intents and purposes, be the child of the petitioner or peti ” tioners, (Italics ours.) etc.
Appellant argues all Act conferred children a class, whether previously or thereafter adopted, the same inheritance, both adopting parent from the parent’s such kindred. We doubt contention, whether sustained, if could aid appellant’s cause, because he adopted according was not statutory requirements, under either the “old law” or 1917 Act. peti- His ple.ads agreement tion which he'was entitled to have en- bjr equity. The a court of
forced showed such grant, was entitled to have it that gument’s enforced. If we ar- for sake, was entitled to have the court that he decree *7 occupied yet the status of an child, thus 1917 Act and do not could, we believe the court decree- ing agreement, enforcement of such make heir of the adopting father’s kindred. Such decree would appellant, we take, may say said, to we child, the same as natural from the think, adopter, adopter’s not as heir of the we kindred. change usually has what has been country considered in the natural this course of property, descent of prescribe a different course of And, again, grant devolution. were, "change it it the blood stream” for inheritable purposes, as wás said in St. Louis Union Trust supra, Co. v. yet, us, greatly enlarged rights seems to if of adopted children might say well curtailment —we destruction —of the re lations to the child of (see its natural Shepherd Murphy, — supra, Hill, supra) right St. Louis Union Trust Co. v. anof —and adopted child to inherit from the kindred of adopter, was in lawmaking body made, tended to be appear should so in the making change. Act In opinion our it does not so appear Act, Act. That us, seems to was intended to altogether apply prospectively and persons adopted according to requirements of the Appellant Act. was never so adopted. interesting
An right discussion adopter’s child to inherit from the kindred is found in Re Estate of Bradley, 185 Wis. 201 N. W. 38 A. L. R. where numerous cited, note, eases are and in an beginning extensive R., p. A. L. 8. principal opinion We think both the in that case weight and the authority indicated in support the annotations the conclusion we have reached in case. In opinion judgment our of the circuit court is correct and should be affirmed. It is so ordered. Westimes GO., Bohling, concur.
PER foregoing opinion Cooley, C., CURIAM: The is adopted of the court. All opinion judges as the concur. alias Bob and Homer Rice, Rice, Edward Hight,
The State v. Appellants. Two, April 3, 1941.
Division