Bernero v. Goodwin
| Decision Date | 31 March 1916 |
| Parties | LOUIS BERNERO, An Infant, by His Curatrix, LORAINE T. BERNERO, Appellant, v. THERESA L. GOODWIN et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Hugo Muench Judge.
Reversed and remanded.
Thomas D. Cannon, Moses N. Sale, D. Goldsmith, E. P. McCarthy and John A. Burke for appellant.
(1) The legal status of the child of an adopted child is that of grandchild to the adoptive parent. R. S. 1909, secs. 332 1671, 1672, 1673; Healey v. Simpson, 113 Mo. 340; Gray v. Holmes, 57 Kan. 217; Power v Hafley, 85 Ky. 671; Pace v. Klink, 51 Ga. 220; In re Estate of Walworth, 85 Vt. 322; In re Winchester's Estate, 140 Cal. 468; Harle v. Harle, 166 S.W. 676; Fiske v. Lawton, 124 Minn. 85; Vidal v. Commagere, 13 La. Ann. 516; Note to 118 Am. St. 688; Humphries v. Davis, 100 Ind. 274; Gilliam v. Trust Co., 186 N.Y. 127; 1 Corpus Juris, 1367, p. 1401; 1 R. C. L. 613. (2) The legal status in this State of an adopted child is the same as that of a child born in lawful wedlock with respect to the statute of descent and distribution. R. S. 1909, secs. 332, 1671, 1672, 1673; Fosburg v. Rogers, 114 Mo. 122; Moran v. Stewart, 122 Mo. 299; In re Estate of Moran, 151 Mo. 557; Thomas v. Maloney, 142 Mo.App. 198; Horton v. Troll, 183 Mo.App. 693. (3) The law places no limit upon the age of the child adopted. The child adopted may be over the age of twenty-one years. In re Estate of Moran, 151 Mo. 557.
McShane & Goodwin and Stewart, Bryan & Williams for respondents; John M. Goodwin and George H. Williams on brief.
(1) Where one inherits a share in an estate which his deceased parent would have inherited, he inherits not from the latter, but directly from the intestate. Barnum v. Barnum, 119 Mo. 67; Records v. Fields, 155 Mo. 325; Heady v. Crouse, 203 Mo. 119; Wattenbarger v. Payne, 162 Mo.App. 436; Hockaday v. Lynn, 200 Mo. 470. (2) Sec. 332, R. S. 1909, does the same thing for the grandchildren of an intestate that section 546 does for the grandchildren of a testate; the latter makes the child of a deceased parent an original legatee of the grandfather, and the former makes him an heir, taking in his own right directly from the intestate by virtue of their propinquity of blood. Wattenbarger v. Payne, 162 Mo.App. 434; Hockaday v. Lynn, 200 Mo. 470. (3) The right of inheritance is purely statutory, and he who claims a share in the inheritance must point to the law which transmits it to him. Goldstein v. Hammell, 236 Pa. St. 309; Wattenbarger v. Payne, 162 Mo.App. 440. (4) The statutes of adoption being in derogation of the common law are strictly construed as against the adopted child. Hockaday v. Lynn, 200 Mo. 464; Reinders v. Koppelmann, 68 Mo. 482; Clarkson v. Hatton, 143 Mo. 58; Sarazin v. Railroad, 153 Mo. 485; Beach v. Bryan, 155 Mo.App. 50; Furguson v. Jones, 17 Ore. 204; Baker v. Clowser, 43 L. R. A. (N. S.) 1056; Thomas v. Maloney, 142 Mo.App. 197; Van Der Lyn v. Mack, 137 Mich. 146; Phillips v. McConica, 59 Ohio St. 9. (5) Consanguinity is so fundamental in statutes of descent and distribution that it should only be ignored by construction when courts are forced so to do either by terms of express statute or by inexorable implication. (6) The general statutes of inheritance are modified and set aside by statutes regulating the effect of adoption, only so far as there is some specific provision in the statutes of adoption inconsistent with the application in such cases of the general inheritance statutes. Like an invading force upon a hostile domain, the adoption law prevails only so far as its lines extend. Beyond those limits all remains under the original control. Baker v. Clowser, 43 L. R. A. (N. S.) 1056; In re Jobson, 164 Cal. 312, 43 L. R. A. (N. S.) 1065; Reinders v. Koppelmann, 68 Mo. 482; Clarkson v. Hatton, 143 Mo. 47. (7) The Missouri statute of adoption is silent as to the children of adopted children. Laws 1856-7, p. 59, secs. 1-4; G. S. 1865, p. 478, secs. 1-4; R. S. 1879, secs. 599-602; R. S. 1889; secs. 968-971; R. S. 1899, secs. 5246-5249; R. S. 1909, secs. 1671-1674; Reinders v. Koppelmann, 68 Mo. 496; Beach v. Bryan, 155 Mo.App. 53. (8) Where the statute is silent, since nothing can be supplied except by inexorable implication, the right of inheritance must be determined by the statutes of descent and distribution and against the children of the deceased adopted child. Phillip's Estate, 17 Pa. S.Ct. 103; Goldstein v. Hammell, 236 Pa. St. 305; Reinders v. Koppelmann, 68 Mo. 482; Hockaday v. Lynn, 200 Mo. 456; Clarkson v. Hatton, 143 Mo. 47; Van Der Lyn v. Mack, 137 Mich. 146; Phillips v. McConica, 59 Ohio St. 9. (9) The adopted child is let into inheritance only for the purpose of preserving in full its right of inheritance from its adopting parent; and the door to inheritance is shut and its bolt shot at that precise point. Hockaday v. Lynn, 200 Mo. 468; Phillip's Estate, 17 Pa.Super. Ct. 103. (10) There is no shooting of bolts as to "kindred" or "relatives by blood" under the statutes of descent and distribution; under those statutes all property of an intestate "shall descend and be distributed to his kindred without end." R. S. 1909, sec. 332. (11) By the act of adoption the child is entitled to inherit from his adoptive parent as his heir in the degree of a child. Hockaday v. Lynn, 200 Mo. 465. (12) The act of adoption creates a contractual relation between the adopter and adoptive. Reinders v. Koppelmann, 94 Mo. 344; Clarkson v. Hatton, 143 Mo. 58; Hockaday v. Lynn, 200 Mo. 473. (13) And this contractual relation is purely personal to the foster-parent and the child. Helms v. Elliott, 89 Tenn. 446; Merritt v. Morton, 136 S.W. 429; Kettel v. Baxter, 100 N.Y.S. 529; Lawson on Contracts, sec. 115. (14) The laws of Missouri recognize two classes of persons to whom rights of inheritance go: (1) Those who are designated as heirs by our statutes of descent and distribution called "heirs at law," "heirs by law" or "right heirs;" (2) those who take as an heir by contract of adoption called "heirs by contract." Both classes are separate and distinct, and heirs by contract of adoption do not partake of any of the rights or attributes of heirs at law, unless the statute authorizing such contracts and the contract itself gives such right. Reinders v. Koppelmann, 68 Mo. 482, 94 Mo. 338; Clarkson v. Hatton, 143 Mo. 47; Hockaday v. Lynn, 200 Mo. 456. (15) The adopted child, by the event of the adoption, has itself ex contractu the right of inheritance from its adoptive parent, and nothing more. Hockaday v. Lynn, 200 Mo. 473; Thomas v. Maloney, 142 Mo.App. 198.
This is a suit to contest the validity of what purports to be the last will and testament of Theresa Bernero, deceased, on the ground of undue influence and unsoundness of mind. The proceeding was instituted in the circuit court of the city of St. Louis. Some of the defendants filed a pleading in the nature of a plea in abatement, which alleged that plaintiff would have no interest in the estate of deceased in the event there had been no will and, therefore, he did not have such an interest as to entitle him to bring the suit. Trial was had by the court which resulted in a judgment finding that plaintiff did not have such an interest in the estate as would entitle him to maintain the action to contest the will. The plaintiff thereupon duly perfected an appeal to this court.
The facts are undisputed and may be stated, substantially, as follows:
Louis Bernero, Sr., and Theresa Bernero (the alleged testatrix) were husband and wife. The husband died in August, 1904. On April 10, 1905, said Theresa Bernero, by deed of adoption, executed and acknowledged as provided by the statutes, adopted Emanuel C. Bernero as her child and heir. The deed of adoption recites that said Theresa and her husband, in 1880, while in Italy, agreed with the parents of said Emanuel to adopt him and brought him home with them to the city of St. Louis, where he lived with them as their child and as a member of the family, but no deed of adoption was ever recorded as required by the statutes. The deed of adoption further recites that it was made so as to comply with said statutes.
At the time of the deed of adoption, Emanuel Bernero, the adopted child, was twenty-eight years of age. On November 30, 1904, said Emanuel Bernero, the adopted son, married Loraine Thompson, now Loraine T. Bernero, appearing as the curatrix of the plaintiff infant in this suit. There was born of this marriage, on October 14, 1905, Louis Bernero, plaintiff in this case. Emanuel Bernero, the natural father of plaintiff, died in April, 1910, leaving surviving him his widow and his son Louis Bernero, the plaintiff. On July 15, 1911, said Theresa Bernero (alleged testatrix) died in the city of St. Louis. It does not appear that she left any natural children or their descendants surviving her, but that she left surviving her two sisters. After her death, her alleged will, dated June 25, 1910, was admitted to probate by the probate court of the city of St. Louis. The present plaintiff was made beneficiary under the will in the sum of ten thousand dollars. The remainder of her property was left to several different legatees and devisees.
The condensed facts, therefore, appearing from the record necessary to a determination of the question here raised, are that an adopted child died during the life of his adopting parent and left surviving him a natural child (the plaintiff herein), and, thereafter, the adopting parent died, leaving a will. Plaintiff brings this suit to contest the validity of the will. Defendants raise the issue that plaintiff could not inherit from the adopting parent in...
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