Brock v. Dorman, No. 34185.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtHyde
Citation98 S.W.2d 672
PartiesNORA 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 Date12 November 1936
Docket NumberNo. 34185.
98 S.W.2d 672
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.
No. 34185.
Supreme Court of Missouri.
Division One, November 12, 1936.

[98 S.W.2d 673]

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 Atl. 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.


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,

98 S.W.2d 674

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...

To continue reading

Request your trial
23 practice notes
  • Hughes v. Neely, Nos. 47287
    • United States
    • United States State Supreme Court of Missouri
    • January 11, 1960
    ...be the heirs of the life tenant (Sec. 442.490) who take as purchasers, in fee simple and not by descent. Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672; see also Cook v. Daniels, Mo.Sup., 306 S.W.2d 573; Thomas v. Higginbotham, Mo.Sup., 318 S.W.2d 234. As pointed out in the Brock case (98 S.W.......
  • Eder v. Appeal from Probate, CV146045533S
    • United States
    • Superior Court of Connecticut
    • March 2, 2016
    ...such as adult step-children." The Davis court relied on what it said was a " leading case in this area, " Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672 (Mo., 1936). Davis said Brock is consistent with " our conclusion that only individuals with familial ties to the adopting parent should be i......
  • Mississippi Valley Trust Co. v. Palms, No. 41459
    • United States
    • United States State Supreme Court of Missouri
    • May 8, 1950
    ...at the time of Dickson's death. Tevis v. Tevis, 259 Mo. 19, 167 S.W. 1003, 1007, Ann.Cas.1917A, 865. But in Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672, 674, we said: '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 ......
  • Evans v. McCoy, No. 115
    • United States
    • Court of Appeals of Maryland
    • October 23, 1981
    ...perpetrate a fraud on those who would otherwise take the land. A subterfuge argument was also advanced in Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672 (1936) where the gift was to the testator's son for life and after his death to the son's heirs. The rule in Shelley's case had been abolishe......
  • Request a trial to view additional results
23 cases
  • Hughes v. Neely, Nos. 47287
    • United States
    • United States State Supreme Court of Missouri
    • January 11, 1960
    ...be the heirs of the life tenant (Sec. 442.490) who take as purchasers, in fee simple and not by descent. Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672; see also Cook v. Daniels, Mo.Sup., 306 S.W.2d 573; Thomas v. Higginbotham, Mo.Sup., 318 S.W.2d 234. As pointed out in the Brock case (98 S.W.......
  • Eder v. Appeal from Probate, CV146045533S
    • United States
    • Superior Court of Connecticut
    • March 2, 2016
    ...such as adult step-children." The Davis court relied on what it said was a " leading case in this area, " Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672 (Mo., 1936). Davis said Brock is consistent with " our conclusion that only individuals with familial ties to the adopting parent should be i......
  • Mississippi Valley Trust Co. v. Palms, No. 41459
    • United States
    • United States State Supreme Court of Missouri
    • May 8, 1950
    ...at the time of Dickson's death. Tevis v. Tevis, 259 Mo. 19, 167 S.W. 1003, 1007, Ann.Cas.1917A, 865. But in Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672, 674, we said: '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 ......
  • Evans v. McCoy, No. 115
    • United States
    • Court of Appeals of Maryland
    • October 23, 1981
    ...perpetrate a fraud on those who would otherwise take the land. A subterfuge argument was also advanced in Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 672 (1936) where the gift was to the testator's son for life and after his death to the son's heirs. The rule in Shelley's case had been abolishe......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT