Brewer v. Browning

• Decision Date: 02 July 1917
• Court: Mississippi Supreme Court
• Parties: BREWER ET AL. v. BROWNING ET AL

76 So. 267

115 Miss. 358

BREWER ET AL. v. BROWNING ET AL

Supreme Court of Mississippi

July 2, 1917

March 1917

ON SUGGESTION OF ERROR.

APPEAL from the chancery court of Sunflower county, Hon. JOE MAY Judge.

Case reversed, bill of complainant dismissed. Suggestion of error is overruled.

Flowers Brown, Chambers & Cooper, for appellants.

D. M Quinn, S. F. Davis and J. Holmes Baker, for appellees.

ETHRIDGE, J. COOK, J., took no part in this decision.

SMITH C. J., and SYKES, J., dissenting.

OPINION

ETHRIDGE, J.

On the 15th day of July, 1901, Church W. Rule and his wife, Lula A. Rule, who were then living and having their domicile in Sunflower county, Miss., and then being without children, and being in the state of Kentucky, presumably on a visit there, on said date signed what is called in the record "articles of adoption." This adoption was signed jointly by Church W. Rule and his wife on the one part and the Louisville Baptist Orphans' Home, by its president, on the other part, by which Church W. Rule and his wife, Lula A. Rule, are said to have adopted a child, then about three years of age, and an inmate of said institution, named Lula May Browning. By said adoption the said Rule and wife obligated themselves to adopt the said infant, Lula May Browning, "and do hereby adopt said Lula May Browning, and covenant with said Louisville Baptist Orphans' Home that said Lula May Browning shall bear from this time forward the same legal relation to them as if she had been born unto them, and were their child, especially as to such property as would descend to her were she their child." After signing said articles of adoption, Church W. Rule and his wife took the said infant to their home in Sunflower county, Miss., and there it occupied the relation of child to them, and was treated by them as their child, up to the time of their deaths, respectively.

It appears that the Louisville Baptist Orphans' Home was chartered and incorporated by an act of the General Assembly of Kentucky, approved January 28, 1870 (Laws 1869-70, chapter 197), and amended by an act approved January 31, 1880 (Laws 1879-80, chapter 108), and that by virtue of its charter it was invested with all the rights of parents and natural guardians of any child committed to its care, and that it was also empowered to permit any suitable person to adopt any child in its custody and control as their own child upon proper covenants in writing being executed by such persons and its president, and acknowledged by such persons and its president, and acknowledged or proven in the clerk's office of Jefferson county, Ky., as deeds may be, and by the amendment of 1880 to this charter it was provided that by the articles of adoption, when executed and recorded, "such child shall become the heir at law of such person so adopting him or her, and be as capable of inheriting as though he or she were the child of said person," etc. It appears also that the supreme court of Kentucky has held this act of incorporation constitutional, and that when this contract was executed it amounted there to a complete adoption, and authorized the child adopted to inherit as if it were the natural child of its parents.

On August 9, 1898, Mrs. M. J. Rule, the mother of Church W. Rule, died in Sunflower county, Miss., leaving a considerable body of land which descended upon her death to her children, one of whom was Church W. Rule. Church W. Rule died February 7, 1903, leaving his wife and the adopted child, Lula May Browning, but no children born to himself and wife. In 1903 there was a suit filed in the chancery court of Sunflower county for a partition of the lands left by Mrs. Mary J. Rule, mother of Church W. Rule, among the heirs then surviving, and the widow of Church W. Rule and Lula May Browning Rule were made parties. In this suit in the chancery court the bill of complaint filed contained the following provision with reference to the position or status of Lula May Browning Rule, to wit:

"The said minor, Lula May Browning Rule, was never adopted by any proceedings in court according to the laws of the state of Mississippi, but said Church W. Rule and his wife, Lula A. Rule, made their certain contract in writing with Louisville Baptist Orphans' Home bearing date of 15th of July, 1901, executed in triplicate and signed by the said Church W. Rule and Lula A. Rule and the said Louisville Baptist Orphans' Home. By said contract it was agreed that the said Church W. Rule and his wife, Lula A. Rule, should adopt, and they did thereby adopt, said minor, whose name at that time was Lula May Browning, and that the said Lula May Browning should, from that time forth, bear the same relation to the said Church W. Rule and his wife, Lula A. Rule, as if she had been born unto them and were their child, especially as to such property as would descend to her if she were their child. Complainants file herewith a copy of this contract as a part of this bill, and mark the same 'Exhibit A.' Complainants allege that from that time up to the time of the death of the said Church W. Rule the said Church W. Rule and his said wife have had the care, custody, and control of the said minor, and the said child is now in the care and custody of said Lula A. Rule. Your complainants advise that by said articles of adoption, although there have been no proceedings in the court, the said child is entitled to have a child's part in the said estate of Church W. Rule, but complainant, Lula A. Rule, submits this question for decision of this court: "The said Lula A. Rule is now the legally appointed guardian of the said Lula May Browning Rule. . . . It is asked that your honor may adjudicate whether the minor, Lula May Browning, has an interest in the said estate.' This bill of complaint being filed by Lula A. Rule and others in cause No. 1100 of the chancery court docket of Sunflower county, Miss."

The prayer of the bill, among other things, asks that "your honor may adjudicate whether the said Lula May Browning Rule has an interest in the said estate." A guardian ad litem was appointed for the minors in the suit, including Lula May Browning Rule, and the answers of the guardian ad litem submitting the interests of the minors to the protection of the court and praying that the allegations of the bill be required to be substantiated by strictly legal proof. The Chancellor rendered a written opinion in which he held that Lula May Rule was in fact adopted by Church W. Rule and his wife, and as such adopted child inherited one-half of the estate and lands in Mississippi of Church W. Rule, and in the decree of partition set apart one of the four shares to Lula A. Rule and her adopted child, Lula May Rule, and from this decree there was no appeal prosecuted, and the right to an appeal has long since been barred by the statute of limitations. After this decree, and on the 29th day of November, 1905, the infant, Lula May Browning Rule, died. Mrs. Lula A. Rule, after the death of Church W. Rule, married one J. B. Fisher, and after such marriage Lula A. Rule Fisher, formerly the wife of Church W. Rule, died, leaving her husband, J. B. Fisher, who was one of the parties to the former appeal in this cause, but who since said appeal has disposed of his interest and claims to other appellants in this case. Subsequent to the death of Lula A. Rule Fisher, the brothers and sisters by natural blood of Lula May Browning Rule filed their bill in the chancery court, praying for a partition of the lands set apart to Lula A. Rule and Lula May Browning Rule by the cause No. 1100 jointly to be divided between the brothers and sisters of Lula May Browning Rule by the blood, and the appellants are original defendants in said suit. This bill for a partition came on for hearing in the chancery court of Sunflower county, Miss., and the chancellor adjudged that the brothers and sisters of the blood of Lula May Browning Rule would inherit her interest in the said lands to the exclusion of Lula A. Rule Fisher and her heirs, and ordered a partition of the said property in accordance with the prayer of the bill, from which order an interlocutory appeal was allowed to this court, and was decided by this court in the case of Fisher v. Browning et al., 107 Miss. 729, 66 So. 132, in which opinion this court, as then constituted, adjudged that the decree of the chancellor in cause No. 1100 in Sunflower county adjudicated that Lula May Browning Rule inherited one-half of the estate of Church W. Rule, and that said judgment constituted res adjudicata, but decided that the chancellor was wrong in holding in that cause that Lula May Browning Rule was entitled to inherit from Church W. Rule as to lands under the laws of the state of Mississippi, and that the public policy of Mississippi with reference to inheritance of lands would be violated by adoption of a rule of comity as applied to adopted children in Kentucky, permitting them to inherit as heirs under the laws of this state. They also held that the property allotted to the said Lula May Browning Rule should go to the sisters and brothers of the blood to the exclusion of the adopting parent, Mrs. Lula A. Rule Fisher, and her heirs. The cause was remanded for further proceedings, and partition was made in accordance with the former decree reported to the court and confirmed, and final appeal is prosecuted here from that decree.

Several questions are presented now for consideration, among which the following may be stated: Is the opinion of this court on the former appeal conclusive on the court now under the doctrine of the law of the case? Second. If not, was Lula May Browning entitled to inherit from the adopted parents, Church W. Rule and Lula A. Rule? Third. If she was would the...