HELEN WEBER V. JOHN T. GRIFFITHS, Administrаtor of the Estate of BESSIE H. GRIFFITHS, Appellant.
Division Two
December 16, 1941
Rehearing Denied, March 13, 1942
159 S. W. (2d) 670
Rehearing Denied, March 13, 1942.
Max Sigoloff and Julius A. Razovsky for respondent; Sigmund J. Barack on the brief.
Respondent, in her brief, attacks the motion for new trial and the abstract and the brief of appellant. This is a suit in equity. The motion for new trial included, among others, the assignments set out and held “abundantly sufficient” in Abernathy v. Hampe (Mo. App.), 53 S. W. (2d) 1090, 1094[9]. They attacked the findings and decree nisi on the ground they were against the evidence, against the weight of the evidence, contrary to law and equity and to the evidence, еtc. See also Findley v. Johnson (Mo.), 142 S. W. (2d) 61, 62[1]; Bank of Brimson v. Graham, 335 Mo. 1196, 1204[3], 76 S. W. (2d) 376, 380[3, 4]. Appellant‘s brief, in separate assignments, specifically alleges that, under the evidence adduced, the court erred among other things in finding and decreeing respondent to have been adopted and in finding and decreeing respondent entitled to share as a sister in the estate of Bessie H. Griffiths, deceased, and also repeats, in substance, the above referred to broadly worded assignments of the motion for new trial. They are carried forward in appellant‘s points, with citation of authority; for instance, a point that one “adoptеd prior to the enactment of the present adoption laws of Missouri, and not in accordance with the provisions and requirements thereof, cannot inherit from the kindred of the adopted parents.” This is sufficient. Consult Bank of Brimson v. Graham, supra; Shaw v. Butler (Mo.), 78 S. W. (2d) 420, 421[1]. Our
We deem it unnecessary to extend this opinion by a narration of the evidence bearing on the issue of an adoption of respondent by Sylvester and Lena Hawkins. Sylvester and Lena Hawkins had departed this life and the decree did not undertake to operate upon any property of either. The portion of the finding and decree with reference tо respondent‘s adoption by said Sylvester and Lena, although essential to respondent‘s case, is but incidental to the main purpose and object of respondent‘s petition - a decree entitling respondent to share as a sister in the estate of Bessie H. Griffiths, deceased, and operating against the property of her estate and those entitled under our laws of descent and distribution to share therein. Assuming then, expressly without so holding, that respondent‘s adoption by Sylvester and Lena Hawkins was established by competent evidence, the issue still remains whether respondent is entitled to share in the estate of Bessie H. Griffiths, deceased, as her sister.
We think our course charted by the case of McIntyre v. Hardesty (Div. II, 1941), 347 Mo. 805, 149 S. W. (2d) 334. That case called for a consideration of certain provisions of our law (the essential provisions involved being quoted infra) relating to the adoption of children prior and subsequent to the effective date of the changes therein made by the Act of 1917. The prior law provided for the adoption of children by deed, executed and acknowledged by the adopting parent or parents and recorded (
“From the time of filing the deed with the recorder, the child or children adopted shall have the same right against the person or persons executing the same, for support and maintenance and for proper and humane treatment, as a child has, by law, against lawful parents; and such adopted child shall have, in all respects, and enjoy all such rights and privileges as against the persons exeсuting the deed of adoption. This provision shall not extend to other parties, but is wholly confined to parties executing the deed of adoption.” [
Sec. 1673, R. S. 1909 ;Sec. 5248, R. S. 1899 .]
Effective June 18, 1917, our General Assembly provided for the adoption of children by reputable persons upon petition to the juvenile division of the cirсuit court (
“When a child is adopted in accordance with the provisions of this article, all legal relationship, and all rights and duties, between such child and its natural parents, shall cease and determine. 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. . . .” [
Sec. 9614, R. S. 1939 ,Mo. St. Ann., p. 826, Sec. 14079 ;Laws 1917, p. 194, Sec. 1677 .]
In McIntyre v. Hardesty, Albert Wm. McIntyre (born Howard Henry) sought to be decreed the adopted son of Bert L. McIntyre by virtue of a deed of adoption signed and acknowledged by Bert L. McIntyre on March 20, 1917, but never recorded as required by the then law, and entitled tо share in the estate of Tabitha T. Cunningham, the grandmother of Bert L. McIntyre, as a great-grandson of Tabitha T. Cunningham, contending, not being mentioned in said Tabitha‘s will, he was a pretermitted heir. Bert L. McIntyre died in 1921. Mrs. Cunningham died in 1933. In considering that Albert Wm. McIntyre was the adopted son of Bert L. McIntyre and entitled to inherit from him but was not an heir and was not entitled to inherit from Bert L. McIntyre‘s grandmother, we held, so far as essential to this review, said plaintiff‘s adoption occurring prior to the 1917 Act, that the Missouri General Assembly intended the Act of 1917, “to apply altogether prospectively . . .” (1. c. 337 [2]).
St. Louis Union Trust Co. v. Hill (Banc, 1934), 336 Mo. 17, 76 S. W. (2d) 685, had before it for construction the will, executed April 4, 1918, of a testator dying September 5, 1918, and the rights of parties adopted in 1929, in conformity with the Act of 1917, by said testator‘s son to take under said father‘s will as remaindermen of said son. The court in upholding the contention of said adopted children observed that the Legislature had radically chаnged the rights of adopted children from that which existed prior to 1917 (l. c. 25 and 688, respectively); remarking: “The Legislature had a right to and did in strong and emphatic language change the blood stream of an adopted child. . . . In other words, the adopted child is taken out of the blood stream of its natural parеnts and placed, by the operation of law, in the blood stream of its adopting parents, if adopted under the provisions of our present statutes” (l. c. 25 and 689, respectively). The instant respondent seeks the application of this ruling. However, said opinion also used the following language: “As to whether the appellants [the adopted children were his - the son‘s] heirs at law at the time of his death depends upon the statutes of descent and distribution in force and effect at the time of his death, and the statutes on adoption that were in force at the time the appellants were adopted by Frank W. Hill, Jr. [the son]” (l. c. 23 and 687, respectively). (Italics ours.)
Our cases hold, in harmony with the statute, that a child adopted under the law prior to the Act of 1917, while entitled to in-
Notwithstanding respondent‘s contention contra, we think McIntyre v. Hardesty good law. That the Act of 1917 was intended to apply prospectively is to be gathered from a reading of its different provisions and the Act as a whole. The words of said
Respondent directs our attention to the closing provisions of
Respondent asserts she established her adoption by Sylvester and Lena Hawkins under the doctrine of equitable estoppel. The basic reasoning underlying observations that adopting parents (and others to the extent they claim under them) are estopped in equity from denying the reciprocal obligations springing from the relation is that it would be inequitable and unfair to permit a repudiation of the status of parent and child on account of a failure to comply with statutory formalities and permit guilty persons to profit by their own wrong after the child had performed everything - such as bestowing love, affection, companionship, comfort and service - contemplated by such relationship at an age when the child had no will or choice of its own in the matter. Drake v. Drake, 328 Mo. 966, 973, 43 S. W. (2d) 556, 559 [3];
Respondent contends that the right to take property by descent is not a natural right but a statutory right and subject to change at any time before the death of the owner; that rights of inheritance flow frоm the legal status of the persons, and that once this status has been established, the law supplies the rule of descent to be applied at the death of the intestate. Respondent‘s status as an adopted child was established, if established, under the law in effect prior to said Act of 1917. Under that law, as has been pointed out, “the door of inheritance is shut and its bolt shot at that precise point” where the adopted child receives its full inheritance from the adopting parent. Our statutes covering adoption fix the status of the adopted child. It is a civil or contractual - an artificial - as сontradistinguished from a natural status. To that status the adopting parent or parents consent by the act of adoption. One might adopt a child under laws conferring certain rights upon the child but withhold the requisite consent if the law confer different or additional rights on the child. Would not a statutory change conferring upon the child rights against the adopting parent‘s kindred at least require a new consent on the part of the adopter to be legally binding? We think so.
There is no merit in the contention that McIntyre v. Hardesty, supra, is to be distinguished from the instant case by reason of the fact respondent was the daughter of Anna Hurd Callaway, a sister of Lena Hawkins, and not a stranger tо the blood. Respondent points to no provision in our statutes relating to the adoption of children making any distinction between adopted children not strangers to the adopting parent‘s blood and children who are strangers to the blood.
Respondent contends McIntyre v. Hardesty, supra, is in conflict with Drake v. Drake (Banc, 1931), 328 Mo. 966, 43 S. W. (2d) 556, and Shepherd v. Murphy, 332 Mo. 1176, 61 S. W. (2d) 746. The Drake case is to the effect that courts of equity may decree an adoption although the formalities of the Act of 1917 be not complied with, and involved only the right of the adopted child to share in the estate of the adopting parent. The Shepherd case involved an adoption of 1929, complying with all the formalities of the 1917 Act, and upon the death of the adopted child, the right of the natural mother to inherit from the child. In neither case did the court have occasion to nor did it discuss the issues involved in the McIntyre case. Consult State ex rel. v. Higbee, 328 Mo. 1066, 1078, 43 S. W. (2d) 825, 831[11]; State ex rel. v. St. Louis, 241 Mo. 231, 238 (I), 145 S. W. 801, 803(I).
Accordingly, the judgment is reversed and the cause remanded with directions to deny the relief asked in respondent‘s petition.
Westhues and Barrett, CC., concur.
PER CURIAM: -The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.