Alexander v. Gray

• Decision Date: 29 April 1938
• Docket Number: 5664
• Citation: 181 So. 639
• Court: Court of Appeal of Louisiana — District of US
• Parties: ALEXANDER v. GRAY et al

181 So. 639

ALEXANDER v. GRAY et al

No. 5664

Court of Appeal of Louisiana, Second Circuit.

April 29, 1938

Kennon & Kitchens, of Minden, for appellant.

A. S Drew, of Minden, for appellees.

OPINION

TALIAFERRO Judge.

This is a petitory action in which the plaintiff, Jacob Elmer Alexander, seeks to recover an undivided half interest in and to the S. E. 1/4 of N. E. 1/4 and a strip of 20.00 acres, 110 yards wide, off of the north side of the N. 1/2 of the S. E 1/4 of Section 22, Township 22 North, Range 10 West, containing 60.00 acres, in Webster Parish, Louisiana. His right to recover, if any he has, hinges upon the efficacy of the following instrument as a legal adoption of plaintiff by or an indenture having the effect of substituting him as a legal heir of Joseph E. McClaskey and his wife, Nancy E. McClaskey, signatories thereto:

"Walker Kans, July 5th, 1890.

"Know All Men By These Presents:

"That we, Joseph E. McClaskey and Nancy E. McClaskey, hereby bind ourselves and our executors to the following agreement:

"That arriving at the age of 21 years Jacob Elmer Alexander shall receive the rights and privileges and share the same as our own children, providing always that he shall remain under our control and guidance unless released by our consent.

"James H. Alexander and Mary M. Alexander, the parents of Jacob E. Alexander, hereby agree to the within.

"J. E. McClaskey

"N. E. McClaskey

"J. H. Alexander

"Mary M. Alexander

"Subscribed before me the undersigned a Notary public, this 5th day of July, A. D.1890.

"C. M. Fox

"Commission expires Jan. 11, 1891."

It is alleged that the McClaskeys died intestate in and while residents of the parish of Webster, leaving one child, Laura E. McClaskey, the wife of Charlie B. Watlington; that the above described lands formed the or a part of the succession of said McClaskeys, and at their death title thereto devolved upon petitioner and Mrs. Watlington in equal proportions; that Mrs. Watlington died intestate in Webster parish on or about September 20, 1936 (and subsequent to the death of her parents), leaving as her sole heir and legal representatives a daughter, Mrs. Daisy Mae Watlington Gray, and the minors, Irma Jean and Bettie Ray Watlington, sole heirs of Clyde W. Watlington, a predeceased son. Reference is made to mortuary proceedings in said successions in the parish of Webster disclosing that Mrs. Watlington was recognized as the sole heir of her father and mother and sent into possession of their property, including said land, by judgment of the district court of that parish; and also disclosing that Mrs. Gray and the said two minors have been recognized as the sole heirs of Mrs. Watlington by the said court and sent into possession of said land in the proportion of one-half to Mrs. Gray and one-fourth to each of said minors. Plaintiff was not made a party to any of the said proceedings. Mrs. Gray and the said minors, through their natural tutrix, Mrs. Myrtle Hortman Watlington, are impleaded as defendants.

In his original petition plaintiff relies upon the above quoted instrument as a legal and valid act of adoption, under the laws of the states of Kansas and Louisiana, and avers as an ultimate fact that, by virtue of such adoption, on the death of the McClaskeys the ownership of the assets of their successions vested in him and their only child and legal heir, viz., Mrs. Watlington, equally.

To the petition defendants interposed exceptions of no cause and no right of action. In amplification of the exceptions, but not as the sole ground thereof, it is alleged therein that since the McClaskeys left a forced heir, such heir inherited their entire successions to the exclusion of plaintiff, although he be an adopted child. These exceptions were overruled. Thereafter plaintiff filed an amended petition wherein he alleges that since the filing of suit he has learned that the Probate Records of Ellis County, Kansas, in which is located the town of Walker, where said alleged act of adoption was executed, were destroyed by fire in the year 1890; and further pleads as follows:

"That in the alternative, and in the alternative only, petitioner shows that if the said instrument described in paragraphs 1, 2 and 3 is not held to be a legal act of adoption under the laws of the state of Kansas, then in that event, and in that event only, petitioner would show that same was a binding contract between Joseph E. McClaskey and Nancy E. McClaskey and the parents of petitioner, Jacob Elmer Alexander, namely, James N. Alexander and Mary M. Alexander;

"4. Further pleading in the alternative, and in the alternative only, would show that petitioner lived with the said Joseph E. McClaskey and Nancy E. McClaskey, as their child, until he was more than 21 years of age and was under their control and guidance and was never released by their consent;

"5. Further pleading in the alternative, and in the alternative only, would show that the conditions of said contract were fully carried out by James N. Alexander and Mary M. Alexander and petitioner, Jacob Elmer Alexander, and is fully binding upon the legal heirs of Joseph E. McClaskey and Nancy E. McClaskey, defendants herein, as set forth in said original petition."

The court granted a rehearing on its action overruling defendants' exceptions. Like exceptions were filed as to the supplemental and amended petition. All exceptions were then sustained and the suit dismissed. Plaintiff has appealed.

Defendants' position, as regards the exceptions, is that the instrument relied upon by plaintiff is wholly insufficient and inadequate as an adoption; that it is impotent to serve as the institution of plaintiff as an heir to the McClaskeys because the creation or institution of heirs by contract is not only unknown to the laws of Louisiana, but positively reprobated by them; and lastly, even should said instrument be held to be effective as an adoption, the existence of a forced heir of the McClaskeys at their decease precludes participation by plaintiff in their succession effects.

We shall dispose of these contentions in reverse order. The right of one person to adopt another in this state, within certain limitations, is warranted by Article 214 of the Revised Civil Code, which in part reads as follows:

"Any person may adopt another as his child, except those illegitimate children whom the law prohibits him from acknowledging; but such adoption shall not interfere with the rights of forced heirs. (3)5C "The person adopted shall have all the rights of a legitimate child in the estate of the person adopting him except as above stated." A terse historic account of the origin and foundation of the right of adoption may be found in American Jurisprudence, Volume 1, p. 622, §3, in which it is said: "The right of adoption, while known to the ancients of Greece and Rome, and probably to other ancient peoples, and while practiced among many of the continental nations under the civil law from the remotest antiquity, was unknown to the common law of England, and exists in this country in those jurisdictions having that law as the basis of their jurisprudence, only by virtue of statute. The beneficent public policy involved in such statutes has made of them an essential part of the jurisprudence of the United States." The right to adopt prevailed in Louisiana under the Spanish and French regimes, but was abolished by the Codes of 1808 and 1825 (Title 7, Chap. 4). See Fuselier v. Masse, 4 La. 423. In Adele Vidal v. Commagere, 13 La.Ann. 516, appears a brief but illuminating discussion of adoption from its earliest history to the time of that decision (1858). In that case the court was called upon to determine the meaning of the words "to adopt" employed in an enabling Act of the Legislature whereby Pierre Jean Baptiste Vidal and his wife, Felicite Blanche Power, were authorized "to adopt" a young orphan child, named Adele. In the course of its opinion, the court propounded to itself the following questions:

"What rights did the Legislature intend to confer upon the plaintiff, by authorizing Vidal and wife to adopt her? What was meant by adoption?"

And answered them by saying:

"We are to suppose that the Legislature intended to confer some substantial right by its action; for it cannot be presumed that a formal exertion of the sovereign power was made for a trivial purpose.

"Now, if this formal act is to be construed to confer merely a right to take the orphan into the family to reside, it gives it, as we think, a slight significance. It was a right with which no one would likely interfere, even in the absence of any action of the sovereign power."

The court then briefly reviews the history of the practice of adoption for centuries back, and delivers itself of these most cogent reasonings:

"If we take the most known and usual signification of the words "to adopt,' we find them to mean "to take a stranger into one's family, as son and heir; to take one who is not a child and treat him as one, giving him a title to the privileges and rights of a child.' (3)5C

"Now when in an enabling or permissive statute, the Legislature has used a word so familiar in its ordinary acceptation, and so well known in the sources of our law, does it become the judiciary to say that it has not such meaning, because the lawgiver has not himself expressly defined the sense in which he intended the word should be taken? Can the court say that when he used this comprehensive word, he did not intend it as ordinarily understood? That it only meant to place this helpless orphan under the protection of these friends (who had thus far nourished and protected her) until she should become twenty-one years of age or be married, and that then...