Williams v. Weber

271 Mo. 150 | Mo. | 1917

BOND, P. J.

I. On February 28, 1887, Thomas F. Ackerman and Susan Ackerman, his wife, legally adopted a child whom they named Mary. She afterwards married one Ira C. Cline, and of this marriage seven children wére born, two of whom died in infancy; the other five who survived their mother .are designated herein as the Cline heirs.

After the death of his adopted daughter Mary, Thomas Ackerman executed his last will and testament by which he bequeathed to each of the Cline heirs one dollar ; to his wife Susan all of his personal property, absolutely, with a life estate in all real estate of which he might die possessed, with remainder over to the children of his sister, Elizabeth Perkins. His wife was named as executrix and Charles Williams named in her stead in case of her death or inability to act. She having died before her husband, his will as originally drawn was duly probated on November 28, 1908, Charles Williams qualifying as executor.

During the course of the administration of the estate, John G. Weber, administrator of the estate of Elizabeth Perkins, deceased, represented the interests of the heirs of said Elizabeth Perkins, Benjamin C. Lindsay claimed by right of purchase the interests of the heirs of James Ackerman, deceased, brother of the testator, and the Cline heirs presented their claims as heirs and legatees. One Alice Otter also presented a claim for services, which was allowed and paid, and a further claim by right of gift of a certain note for $1600, together with two interest notes for $45 each, secured by a deed qf trust.

When the executor presented his accounts for final settlement, the court found the amount in which the executor was indebted to the estate, but having been of counsel, refused to order distribution on account of ■ the above adverse claims to said fund. Thereupon the executor filed this bill in equity in the circuit court and prayed that the several claimants be compelled to interplead. Thé decree so ordered and commanded executor Williams to pay the fund of $11,239.47 into court.

Thereafter interpleas were duly filed and the court, having taken the case under advisement, rendered judgment against the Cline heirs and Alice Otter, and ordered the clerk of the court to pay one-half of the fund to inter-pleader John G. Weber, as administrator in charge of the estate of Elizabeth Perkins, deceased, and one-half to interpleader Benjamin C. Lindsay. The Cline heirs and Alice Otter appealed separately.

Heirs: Children of Adopted Child.

II. There,being no dispute as to the facts in this case, the main issue presented resolves itself into a question of law: whether the children of an adopted child, who died before her adopting parents, can take under the statute of descent the same estate which their mother would have taken had she outlived her adopting parents?

This question is determinable by a consideration of the first clause of the statute of descents, viz., “First to his children, or their descendants” (R. S. 1909, sec. 332), which has been interpreted in Bernero v. Goodwin, 267 Mo. l. c. 454 et seq., to include, under the terms “to his children” in the first subdivision thereof, an adopted child as well as a natural child. It necessarily follows from that ruling that the alternative terms of said statute, viz., “or their descendants,” likewise embrace the children of an adopted, as well as a natural child. Hence in case of the death of an adopted child prior to the death of the adopting parent, such child stands in the same relation of heirship to the estate possessed by the adopting parent at the time of bis or her death, that a’ natural and lawfully born child would occupy undpr similar circumstances. Applying this principle to the facts in the instant case, the result is that the Cline children, whose mother was lawfully adopted both by Thomas P. Ackerman and his wife Susan, are entitled to inherit the undisposed estate of either of her adopting parents at the time of their respective deaths, just as if they were natural and lawful grandchildren of the adopting parents of their mother. There was no residuary clause in the will of Thomas P. Ackerman; neither did his wife Susan Ackerman make any testament. It follows that the personal estate which was devised absolutely to his wife under the will of Thomas P. Ackerman, descended, upon the death of his wife, to the Cline children as the lawful “descendants” of Mary Cline, the adopted daughter of the deceased wife. The decision in the Benero case had not been rendered when this cause was submitted to the learned circuit judge. Under the authority of that case, the judgment against the Cline heirs is reversed and the cause remanded with directions to enter a judgment in their favor for the amount of the estate now subject to distribution. It is so ordered.

All concur.