Brock v. Dorman

• Citation: 98 S.W.2d 672,339 Mo. 611
• Parties: Nora Brock v. Mary Frances Dorman, John T. Brock, Lawrence Brock, Samuel Brock, Martin Brock, Margaret E. Sullivan, Josephine Brock, Margaret Brock, Thomas Harold Brock, James L. Brock, Appellants
• Decision Date: 12 November 1936
• Court: United States State Supreme Court of Missouri

98 S.W.2d 672

339 Mo. 611

Nora Brock v. Mary Frances Dorman, John T. Brock, Lawrence Brock, Samuel Brock, Martin Brock, Margaret E. Sullivan, Josephine Brock, Margaret Brock, Thomas Harold Brock, James L. Brock, Appellants

Supreme Court of Missouri

November 12, 1936

Appeal from Clinton Circuit Court; Hon. Richard B Bridgeman, Judge.

Affirmed.

Cowgill & Popham, D. F. Bennett and John F. Cook for appellants.

(1) James Brock's intention by his last will and testament must be determined by the facts and the law existing and in effect at the time of making of that will in the year 1898 and through the period up until his death in 1915, and the fact that the Legislature in the year 1917 changed the adoption laws, two years subsequent to the death of James Brock, cannot be taken into consideration in determining the intent of the testator. St. Louis Union Trust Co. v Hill, 76 S.W.2d 688; Trautz v. Lemp, 329 Mo. 580, 46 S.W.2d 139. The existing law at the time of making of the will and at the time of the testator's death, was Section 1673, Revised Statutes 1909. Adopted child could not succeed to the estate of the ancestors or collateral kin of the adopting parent. Hockaday v. Lynn, 200 Mo. 472; Reinders v. Koppelman, 94 Mo. 343. (2) The intention of James Brock, the testator, as evidenced by the entire will, and the presumption that he knew that any child adopted by Samuel Brock could not inherit from him (James Brock), and that by giving to Samuel Brock only a life estate which Samuel Brock could not convey, either directly or indirectly, whether by adoption or other contract, and all of the facts in evidence, was that the property involved should not go to adopted children but should remain in his own children and grandchildren connected by blood relationship. An adopted child could not inherit from the ancestors or collateral kin of adopting parents, and the intention of the testator always governs. Hockaday v. Lynn, 200 Mo. 456; Reinders v. Koppelman, 94 Mo. 338; Wylder v. Butler, 116 Me. 389; Hall v. Stephens, 65 Mo. 570; Melek v. Curators of the University of Mo., 250 S.W. 614; Brown v. Tuschoff, 138 S.W. 499; In re Puterbaugh's Estate, 104 A. 601.

R. H. Musser and Julian L. O'Malley for respondent.

(1) Only the record proper in this case is before the appellate court for review for the reason that no objections to the introduction of testimony, documentary or oral, on behalf of respondent, were made, and no exceptions saved touching the rulings of the court thereon. Spotts v. Spotts, 331 Mo. 917; Crawford v. Amusement Syndicate, 37 S.W.2d 581; Dougherty v. Manhattan Rubber Mfg. Co., 325 Mo. 656, 29 S.W.2d 126; Syz v. Milk Wagon Drivers' Union, 323 Mo. 130, 18 S.W.2d 441; Wayland v. Kansas City, 321 Mo. 654, 12 S.W.2d 438; Arcadia Timber Co. v. Harris, 285 S.W. 428; Warren v. Zinc Co., 255 Mo. 138, 164 S.W. 208; Blanchard v. Dorman, 236 Mo. 416, 139 S.W. 395; Dawson v. Scott, 300 Mo. 185, 49 S.W.2d 87. (2) Appellants, having made no objections to any of the rulings of the lower court made during the progress of the trial of the cause, may not seek to object and except to such rulings for the first time in their motion for new trial; and consequently, such objections attempted to be saved in such manner are not before the appellate court for review and may not be the subject of an assignment of error. Straub v. Gas Co., 287 S.W. 1061; Harding v. Mo. Pac. Ry. Co., 232 Mo. 444, 134 S.W. 641; Tyon v. Wab. Railroad Co., 207 Mo.App. 322, 232 S.W. 786; State ex rel. Brockman v. Miller, 241 S.W. 920; Boatman v. Love, 298 S.W. 1055; Heinrich Chemical Co. v. Welsh. 300 S.W. 1001.

Hyde, C. Ferguson and Bradley, CC., concur.

OPINION

HYDE

This is an action to try and determine title to real estate in Clinton County. All parties claimed under the will of James Brock, who died in 1915. The case was tried as a jury waived law case, but no findings of fact or declarations of law were asked or made. The court adjudged plaintiff to be the owner in fee simple of the land and defendants have appealed from this judgment.

The will of James Brock devised the land in question to his son Samuel Brock, "to have and to hold, during his natural life and after his death to go to his heirs." He made similar devises of other land to another son and to his daughter. The testator made certain provisions for his wife, in lieu of dower, but, when she died, he made a codicil leaving property, bequeathed to her, to a granddaughter. (He left this granddaughter more property by a later codicil.) Also, "to equalize values of property," he charged each of the two tracts of land, devised to his sons, with $ 1000 to be paid to his daughter. Thereafter, when his other son died, by a second codicil, he created a trust in the land devised to the deceased son for the benefit of this son's six minor children. This trust was to terminate, "when the youngest of said children shall become twenty-one years of age," by sale of the land and division of the proceeds among them or in case of the death of any of them without "descendants," then "among the survivors." This will and the codicils were prepared by lawyers. Defendants are the grandchildren and great-grandchildren of the testator.

Plaintiff is the wife of the testator's son, Samuel Brock, who died after the testator's death. Samuel Brock and his wife had no children, born to them. However, about two and one-half years before his death, Samuel Brock and his wife filed a petition for the adoption of Frances Hickey, then forty-three years old, in the Juvenile Division of the Circuit Court of Jackson County and decree of adoption was there entered adjudging her "to and for all legal intents and purposes become and be the child of Samuel Brock and Nora Brock." She was not related to them but had lived with them at intervals during her childhood. Mrs. Brock said she was adopted "because we had raised her and she was just a daughter to us, and we wanted her to have everything we had." Frances Hickey conveyed to Nora Brock, the land devised to Samuel Brock by his father, both by warranty deed at the time of the adoption decree and by quitclaim deed after Samuel Brock died. She said these deeds were made "so that if anything happened to me before Mrs. Brock's death there would be no question about my interest in it."

Defendants contend that at the time the will was made and all during the remainder of the life of James Brock, the law of Missouri was that an adopted child did not inherit the estate of any member of the adopting family, other than the adopting parent, and so did not inherit the estate of the ancestors or collateral kin of the adopting parent. [Melek v. Curators of University of Missouri, 213 Mo.App. 572, 250 S.W. 614; Hockaday v. Lynn, 200 Mo. 456, 98 S.W. 585; Clarkson v. Hatton, 143 Mo. 47, 44 S.W. 761; Reinders v. Koppelman, 94 Mo. 338, 7 S.W. 288; Sec. 1673, R. S. 1909.] Therefore, they say that "when the whole will is considered it is obvious that James Brock's intention was to devise his property to his own children and grandchildren," because:

First: The testator must be presumed to have prepared his will in the light of the law as it then was, so that, by the devise to Samuel Brock "during his natural life and after his death to go to his heirs," he must have meant that descendants of his own blood should take the property when the life estate terminated, and not adopted grandchildren, who could not then inherit from him.

Second: The testator by using the term "descendants" in the second codicil and by providing therein for defendants, who are children of his deceased son, in the trust thereby created, indicated his intention to have his property go to descendants of his own blood and not to adopted children.

If the testator had provided that, upon the death of the life tenant, the remainder should go to his own heirs, then it might be possible to sustain defendants' contention. But that was not what he said. He provided that it should go to the life tenant's heirs. "The word 'heir' unqualified by any adjective, is a technical word denoting the person on whom the law casts the inheritance on the ancestor's decease." [Gardner v. Vanlandingham, 334 Mo. 1054, 69 S.W.2d 947.] That question is determined by Statutes on Descents, and "it has been held by this court that an adopted child was a child (of the adopting parents) within the meaning of (our) Statute on Descents," although adopted under the deed of adoption statute. [Bernero v. Goodwin, 267 Mo. 427, 184 S.W. 74; Fosburgh v. Rogers, 114 Mo. 122, 21 S.W. 82.] The adoption by deed statute itself said: "If any person in this state shall desire to adopt any child or children, as his or her heir, it shall be lawful for such person to do the same by deed." [Sec. 1671, R. S. 1909.]

The question here is not whether Frances Hickey was capable of inheriting from the testator but whether she can take under the designation therein of "heirs" of Samuel Brock. "In the matter of construing the rights of an adopted child to take under a will, it should be borne in mind that it is not a question of the right of an adopted child to inherit, but simply a question of the testator's intention with respect to those who are to share in his estate." [1 Am. Jur. Adoption of Children, sec. 64.] The expression the testator did make is governed by the rule of construction, stated in Section 562, Revised Statutes 1929, and Section 3110, Revised Statutes 1929, which was the law when this will was made and for a long time prior thereto. Quoting the words applicable here these sections read, as follows:

"Sec 562. If any person, by last will, devise any real estate to any person, for the term of such person's life, and after his or her death, to his or her...