567 S.W.2d 389 | Mo. Ct. App. | 1978
This is an action to construe the last will and testament of William Rice Challis, deceased, who died on September 16,1974, the will having been executed by him on June 26, 1943, and his wife, Margaret Challis, having predeceased him.
Item III of the will left to Helen Reagan $1.00. Item V of the will left the residue of the estate, “in equal shares to Madeline Peters, Ruth Jordan, Chloe Jordan, and Vera Wiedmeyer; but in case any of them shall have died in my lifetime leaving issue living at my death such issue shall take the share which his or her parent would have taken had such parent survived; and if no issue shall have survived said named devi-see and beneficiary who died in my lifetime, then I give, devise and bequeath the share given to her to the individuals named in this item who do survive me, to be divided equally among them.”
Ruth Jordan and Chloe Jordan predeceased testator without leaving issue.
This appeal revolves around the construction of the will by the trial court, giving to respondents Peters one-fourth each of the residuary estate (a total of one-half), and each of appellants attack that interest awarded to the Peters.
Sarah Jane Bess presents her contentions in three aspects: First, that respondents Peters, having been adopted by Madeline, are not “issue”; secondly, that the construction of the will must avoid partial intestacy; and thirdly, that the anti-lapse statute, § 474.460, RSMo 1969, applies because Madeline Peters was not a relative of testator, hence the Peters, because of the lapse of the devise to Madeline, cannot take her share. Sarah Jane concludes that she “takes the entire residuary estate, or at worst, if the Peters are ‘issue’ [she] takes ¾ and the Peters divide ⅝ of the residuary estate.” As to the contention that the adopted children are not “issue” as that term is used in the will, Sarah Jane adopts the reasons presented in the brief of Jennie Trantham and Helen Reagan. The matter of whether respondents Peters, having been adopted, are “issue” will first be discussed.
As noted, the will was executed on June 26, 1943. It is the “general rule that whether an adopted child is embraced within the meaning of a described class of beneficiaries in a will is governed by the law in force at the time the will or other instrument was executed. (Citing cases and authority.)” First National Bank of Kansas City v. Sullivan, 394 S.W.2d 273, 281[7] (Mo.1965), and cases and authority there cited. At the time of the execution of the will, and prior to the 1947 amendment to the adoption statute (now § 453.090, RSMo 1969), the Adoption Act of 1917 was in force (L.1917, p. 194). The 1917 Act provided, in essence, that all adopted children shall take, under intestate succession, as would a natural born child, unless the property is expressly limited to “heirs of the body.” [The present statute, § 453.090, extends the inheritance and taking rights to property limited expressly to heirs of the body of parents by adoption.] Cases construing the 1917 Act as to the effect of adoption are these: St. Louis Union Trust Co. v. Hill, 336 Mo. 17, 76 S.W.2d 685 (1934), where the testator made his will and died a year later, leaving a life estate to his children with remainder to their “heirs at law.” Eleven years later a son adopted his wife’s two sons by her previous marriage. The testator’s daughters contended that he intended to limit the remainder to those of his blood, and not to strangers. The court allowed the adoptive children to take their share of the remainder, saying that if the testator “did not want an adopted child to have any of his property he could have easily provided for such contingency in his will by expressly limiting his property to go to the bodily heirs of his son, but he did not do so.” Loe. cit. 76 S.W.2d 689[7], In Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672 (1936), James Brock, who died in 1915, devised land to his son, Samuel, “ ‘to have and to hold, during his natural life and after his death to go to his heirs.’ ” Samuel and his wife, 2½ years before his death, adopted 43 year old Frances' Hickey by judicial decree. Frances deeded the land to her mother, Nora, the plaintiff, by warranty deed prior to Samuel’s death, and by quit-claim deed thereafter. Defendants contended that during the life of James Brock, the law was that the adopted child did not inherit the estate of any member of the adopting family, other than the adopting parent, and so did not inherit the estate of the ancestors or collateral kin of the adopting parent. It was held that Frances Hickey was an “heir”
In this case, the evidence shows that both the Peters, the adopted sons of Madeline Peters, had been adopted when testator made his will, and that he knew the sons. Dr. John F. Townsend testified that he grew up with John and George Peters, and that through them he became acquainted with testator, who, after the Peters grew up, would always inquire how they were doing. Testator kept pictures of the two sons on display in his home. George Peters testified that he and his brother began visiting testator at an early age and that they continued visiting him regularly at his home and their own. They called him Uncle Rice. Testator gave U. S. savings bonds to all three of George’s children. Photographs of the two sons with testator were in evidence, taken from the time they were small until testator’s death. There was also a movie of the three. Under the foregoing cases, these facts showing that the Peters were well known to testator, whose will was executed after they were adopted, and the liberal provisions of the 1917 Adoption Act that “Said child shall thereafter be deemed and held to be for every purpose, the child of its parent or parents by adoption, as fully as though born to them in lawful wedlock. Said child * * * shall be capable of inheriting from, and as the child of said parents as fully as though born to them in lawful wedlock”, there can be no doubt that the Peters are “issue” of Madeline Peters. The contentions of Sarah Jane Bess, Jennie Trantham and Helen Reagan as to this matter are ruled against them.
Sarah Jane Bess makes the further contention that the anti-lapse statute, § 474.460, operates to cut out the Peters because their adoptive mother, Madeline Peters, was not related to testator and predeceased him. Ordinarily, that would be true, but it is a general rule also that “ * * * a testator may, by express provisions of his will, prevent a lapse in case of the death of a legatee or devisee before the testator * * *96 C.J.S. Wills § 1216a, p. 1053. And he may do this “ * * * by the expression of such intention and a provision for the substitution or succession of some other recipient in case of the intermediate death of the first named, donee.” 96 C.J.S. Wills § 1216b, p. 1053. See also 80 Am.Jur.2d, Wills, § 1665, p. 721. Here, the testator has made an express substitution of the issue of his named beneficiaries, thus showing an intent that the gift should not lapse.
The judgment is affirmed.
All concur.