Bray v. Miles

• Decision Date: 30 June 1899
• Docket Number: 2,767
• Citation: 54 N.E. 446,23 Ind.App. 432
• Parties: BRAY v. MILES, EXECUTOR, ET AL
• Court: Indiana Appellate Court

54 N.E. 446

23 Ind.App. 432

BRAY v. MILES, EXECUTOR, ET AL

No. 2,767

Court of Appeals of Indiana

June 30, 1899

Rehearing denied November 29, 1899, Reported at: 23 Ind.App 432 at 475.

From the Hendricks Circuit Court.

Reversed.

G. W Brill, G. C. Harvey, R. W. McBride and C. S. Denny, for appellant.

E. G. Hogate, J. L. Clark, T. J. Cofer and R. T. Hollowell, for appellees.

COMSTOCK, C. J. WILEY, J., dissents.

OPINION

COMSTOCK, C. J.

The questions submitted to the court in this case involve the construction of the statute of this State, concerning the adoption of heirs, and the application of that statute to the will of John Miles, who died testate, at Hendricks county, Indiana, June 23, 1896, and whose will was duly probated in that county. In order to present the question, we quote three items from the will, a copy of which is set out in the record:

"(2) I will, give, and bequeath to my two sons, Thomas J. Miles and John A. Miles, in trust, all my personal estate, including money on hand and due me from every source, the same to be safely and prudently used and invested so as to yield an income; and from said personal estate and the income therefrom I desire and direct that my wife, Elizabeth Miles, and my two invalid daughters, to wit, Emily Miles and Jane Miles, shall be provided with a comfortable maintenance and support in sickness and in health, and a comfortable and suitable home so long as they or any of them shall live; and in the event that for any cause my sons above named fail to execute this clause of my will, I direct that the Hendricks Circuit Court shall appoint some competent and suitable person who shall fully execute this trust, and shall give bond for the faithful performance of his duties in relation thereto. In the performance of the duties imposed by this provision of my will, I hereby authorize my said sons, Thomas J. Miles and John Miles, or whomsoever may act in their stead as aforesaid, to dispose of my salable personal property at such time and in such manner as will in their judgment best subserve the purpose hereinbefore specified, but such executors shall make a complete inventory of said personal estate, as required by law, to be filed with the clerk of the Hendricks Circuit Court, and shall report to said court at least once in every two years a true and complete account of all money received and paid out by them; and said executors shall be allowed fair and reasonable compensation for their services, to be allowed and approved by said court.

"(11) It is my will, and I hereby expressly declare it to be the first object of this will, that my said wife, Elizabeth Miles, and my two invalid daughters aforesaid, Emily Miles and Jane Miles, shall be fully and comfortably provided and supplied with all the necessaries and ordinary comforts of life, including a comfortable home, and that my wife shall keep and retain in her possession all such household goods as they may need, and if my personal estate shall not be sufficient to so maintain them so long as they or any of them shall live, then, and in such case, they or any of them, shall have and hold a lien upon all of the real estate which is hereby devised to my children.

"(12) I hereby will and direct that all of the surplus of my estate, after the execution of the several items and clauses of this will above mentioned, shall be distributed among my several children, Martha, Thomas J., John A., and Samuel W. Miles, so as to make them equal in the distribution thereof, and in the event of the death of any one of the last above named the shares due such as may be deceased shall go to the children of such deceased person, if there be children; and if there be no children, then such share shall go to the survivors."

The testator survived his wife. All of the children named in the clauses above quoted survived the maker of the will, but the two invalid daughters are now dead. The daughter Martha, who is named in item twelve of the will, is also dead. The testator's three sons, Thomas J., John A. and Samuel W. are living, and have wives and children living. Martha was, when the will was made, and when she died, a married woman, the wife of one Columbus Walker, but never bore any children. During the lifetime of John Miles, the maker of the will, she, with the knowledge of the testator, adopted the appellant, the adoption having been duly and regularly made under and by virtue of the statutes of this State, concerning the adoption of heirs. The appellant, as such adopted daughter, claims that she is in law the child of and is entitled to the share of her adopted mother, under item twelve of the will. Martha was born January 14, 1841, became the wife of Columbus Walker, named in the will, on October 27, 1870, and was his wife at the time of her death on December 2, 1891. At the time of the marriage she was twenty-nine years old. She had been married thirteen years when the will was made. Thomas J. Miles, the only one of the executors named in the will who seems to have acted, filed a final report, showing the death of the widow and the two invalid daughters, claiming that he had fully acquitted himself of the trust created in their behalf by the will, and that there remained for distribution under item twelve of the will $ 40,663.83, which was represented by notes and bank stock. He further showed the death of his sister Martha; that she had borne no children, but had adopted the appellant, who survived her; that he and his two brothers named in item twelve of the will, with said Martha, as residuary legatees, having concluded that their sister's adopted daughter was not her child, and that she was not entitled to share in the distribution of said sum, had agreed upon a division of the same among themselves, which they asked the court to approve and confirm, ignoring the appellant as having no right to share in the distribution. The appellant filed exceptions to this report, showing the fact, the time, and the manner of her adoption, and asking that she be allowed to share in the distribution. The court, upon the motion of the executor, struck out her exceptions. This ruling is assigned as one of the errors. Thereupon the appellant filed her petition for distribution. When the final report of the executor and the petition for distribution were submitted to the court for hearing, the court was requested by the parties to make a special finding of the facts, and state its conclusions of law thereon, and did so. The appellant excepted to the conclusions of law, which were adverse to her. If the appellant, as the adopted child of Martha Walker, is entitled to take the share of her adoptive mother, the action of the trial court was erroneous and the case should be reversed.

Appellant claims that by virtue of her adoption, and in law, and in everything which concerns her property rights, she is the child of Martha Walker. That Martha Walker being dead when the time came for the distribution of the surplus under item twelve of the will, the appellant as such child was entitled to the distributive share which would have gone to her adoptive mother if she were then living.

The will designates a class, children, as beneficiaries. The question presented, therefore, is whether under the statute appellant is a child of Martha, the daughter of the testator. Can she be identified as a beneficiary named in the will? It is conceded that she cannot take by inheritance from the decedent. Adoption has been defined to be "the act by which a person appoints as his heir the child of another. Abney v. DeLoach, 84 Ala. 393, 4 So. 757. The object of adoption is to place as nearly as possible the child adopted in the place of a natural one; to give it the position in the family as the child both of the husband and wife, conferring on it rights and privileges of a child. Among other consequences, the effect of adoption is to cast succession upon the adopted in case of the intestacy of the adopting father. Adoption was unknown to the common law. It was regulated by law in Greece and Rome. In Rome the system was in vogue before the time of Justinian. He reduced the system, which prior to his time was encumbered with formal ceremonies, to a code which simplified the proceeding, and from which modern legislation upon the subject has derived its chief features, adapting them to our wants. It was introduced as a part of the civil law in this country from France and Spain respectively to Louisiana and Texas. For the reason that it is purely statutory and in derogation of the common law, it has frequently been said that it is to be strictly construed. This expression occurs in the reported cases in which the jurisdiction of the officer or tribunal or the regularity of the proceedings of adoption have been called in question. The statute is not to be so strictly construed as to defeat its purposes. § 838 Burns 1894, § 826 Horner 1897, reads: "After the adoption of such child, such adopted father or mother shall occupy the same position toward such child that he or she would if the natural father or mother, and be liable for the maintenance, education and every other way responsible as a natural father or mother." The name of the child is changed; its identity is lost in that of the adopting parents; it becomes in all but blood their child.

In Martin v. Aetna Ins. Co., 73 Me. 25, it was held that an adopted child falls within the terms "children" when there is no other person that answers that description.

In 5 Am. & Eng. Ency. of Law, p. 1098, it is stated that the words "child" or "children" usually include an adopted child, citing Power v. Hafley, 85 Ky. 671, 4 S.W. 683; Stanley v. Chandler, 53 Vt. 619; Keegan v. Geraghty, 101 Ill. 26.

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