Atchison v. Atchison's Ex'rs

• Decision Date: 30 January 1890
• Parties: ATCHISON v. ATCHISON'S EX'RS.
• Court: Kentucky Court of Appeals

12 S.W. 942

89 Ky. 488

ATCHISON v. ATCHISON'S EX'RS.

Court of Appeals of Kentucky.

January 30, 1890

Appeal from circuit court, Bath county.

"To be officially reported."

Action by the executors and devisees of Jesse Atchison against Charlotte Atchison for order of distribution. The defendant appeals from an order allowing her one-third of the estate instead of one-half.

A Duvall and R. Gudgell, for appellant.

J. J Nesbitt, for appellees.

PRYOR J.

By section 17 of the General Statutes, (chapter 31,) "any person twenty-one years of age may, by petition filed in the circuit court of the county of his residence, state, in substance, that he is desirous of adopting a person, and making him capable of inheriting as heir at law of such petitioner, and said court shall have authority to make an order declaring such person heir at law of such petitioner, and, as such, capable of inheriting as though such person were the child of such petitioner; but no such order shall be made, if the petitioner be a married man or woman, unless the husband or the wife join in the petition." Under this statute, Jesse Atchison and his wife, Charlotte, adopted Mary Ann Myers heir at law, and, as such, capable of inheriting as though she was the natural child of Jesse and Charlotte Atchison. Atchison and his wife had no children, but undertook the care and custody of this adopted daughter. The daughter married one Anderson, and had by him one child, named W. S. Anderson. She died in the lifetime of her father, Jesse Atchison, leaving her son surviving her. In the year 1887, Jesse Atchison died, leaving a last will, by which he disposed of his entire estate. He devised to the son of his adopted daughter a valuable tract of land, and the balance of his estate he gave to his collateral kindred, restricting his widow, by the provisions of his will, to that portion of his estate to which she was entitled under the statute. The widow renounced the provisions of the will, and claims, as there was no issue born of the marriage, she is entitled to one-half of the personalty; the statute providing, as to personalty, that "if the intestate leaves issue his widow shall have one-third, and, if no issue, one-half, of such surplus." The executors and devisees brought this action, asking to be advised as to the manner of distribution, and the court below held that the act of adoption precluded the widow from a greater interest than one-third of the surplus personalty; and from that judgment she has appealed.

It appears from the petition filed by the appellant and her husband, in 1877, that both husband and wife desired to recognize as their child Mary Ann Myers, and to make her capable of inheriting as though she was their natural child. For this purpose, and no other, the petition was filed; and the child became entitled to inherit as if she had been their natural offspring. The mode of descent and distribution is regulated by the statute under which all of these parties would have taken; and, if there had been no will, where the adopted father dies intestate, the child, inheriting as if in fact the child of the decedent, can take in no other mode than that pointed out by the statute. What interest, then has the widow of the adoptive father in her husband's estate? If he left a child to inherit his estate, then the widow, in distributing the personalty, would be entitled to one-third of the surplus, and, if no child, to one-half. In determining the extent of the widow's interest in the personalty, regardless of the statute, the word "issue" has always been construed to mean a child or children, or their descendants, born of the marriage, and capable of taking at the death of the intestate; but the statute in question has intervened,...