Clarkson v. Hatton

• Decision Date: 23 February 1898
• Citation: 143 Mo. 47,44 S.W. 761
• Parties: CLARKSON et al. v. HATTON.
• Court: Missouri Supreme Court

44 S.W. 761

143 Mo. 47

CLARKSON et al. v. HATTON.

Supreme Court of Missouri, Division No. 1.

February 23, 1898.

ADOPTION — VALIDITY — RIGHTS OF CHILD — DEEDS — CONSTRUCTION — ESTATES TAIL.

1. Under 1 Wag. St. p. 256, § 1, providing that a person may adopt a child as his heir by a deed executed and recorded as in the case of conveyances of real estate, a deed of adoption is valid though not consented to by the natural parents of the child.

2. Under Rev. St. 1855, p. 355, c. 32, § 5, changing an estate in fee tail into a life estate in the grantee, with remainder to his children or issue of a deceased child, or, if the grantee have no issue, then to his heirs, in force when a deed was made to one and his "bodily heirs," at which time there was no statute authorizing the adoption of a child as one's heir, the remainder limited by such deed does not vest in a child subsequently adopted by the grantee, under 1 Wag. St. p. 256, § 3, giving such child the same rights for support and treatment as a child has by law against lawful parents.

Appeal from circuit court, Mississippi county; James D. Fox, Judge.

Ejectment by J. T. Clarkson and others against F. A. Hatton. From a judgment for plaintiffs, defendant appeals. Reversed.

H. J. Cantwell, Wm. N. Randolph, and Jas. A. Boone, for appellant. Russell & Deal, for respondents.

ROBINSON, J.

This is an action of ejectment to recover possession of certain land in Mississippi county. The petition was in the usual form. The defense set up in the answer was that defendant is in possession, as curator, of the estate of Roy Congers, a minor, who is averred to be the owner in fee of the land. A reply was filed, denying the new matter contained in the answer. The cause was tried before the court, without a jury, and resulted in a judgment for plaintiff, from which defendant appeals. The action was instituted on February 25, 1895, and tried at the ensuing April term of the Mississippi county circuit court. It was admitted that Jabez Clarkson was the common source of title. On November 9, 1858, Jabez Clarkson conveyed the land in question, by warranty deed, to his son, John Clarkson, and his "bodily heirs." John Clarkson was in possession of the land at the time said deed was executed, and continued to reside thereon until 1890, at which time he died, leaving his wife, Sarah Clarkson, surviving, who died in 1894, prior to the commencement of this suit. John Clarkson had no children or their descendants living at the date of said deed, and none were born to him after that time. The plaintiffs are the only living brothers and sisters of John Clarkson. Not having an heir born of his body, John Clarkson and his wife, Sarah, on the 11th day of July, 1887, by their deed duly executed, acknowledged, and recorded, adopted Roy Congers, who survived them as their child and heir. In the recent case of Clarkson v. Clarkson, 125 Mo. 381, 28 S. W. 446, this court held that the deed from Jabez Clarkson to John Clarkson, created an estate tail, which our statute, eo instanti, converted into a life estate in John Clarkson, with remainder in fee to his children. Black, J., who wrote the opinion after stating the facts, says: "On the state of facts, the plaintiffs insist the title passed to them. The question must be determined by section 5, c. 32, of the Revised Statutes of 1855, the statute in force when the deed was executed. It provides that any conveyance or devise which would have created an estate tail under the statute of the thirteenth Edward First shall vest an estate for life only in such grantee or devisee, who shall possess and have the same power over and right in such premises, and no other, as tenants for life thereof would have by law; and, upon the death of such grantee or devisee, the said land and tenements shall go and be vested in the children of such grantee or devisee, equally to be divided between them as tenants in common, in fee; and, if any child be dead, the part which would have come to him or her shall go to his or her issue, and, if there be no issue, then to his or her heirs. This statute disposed of the entire estate conveyed by the deed. It vested in John Clarkson a life estate, and no more. As he had no children or their descendants living either at the date of the deed or at his death, the remainder vested, according to the last clause of the statute just quoted, in his brother and sisters and the heirs of those who were dead, he having no father or mother living at his death." The statute then and now under consideration reads: "That, from and after the passage of this act, where any conveyance or devise shall be made whereby the grantee or devisee shall become seised, in law or equity, of such estate, in any lands or tenements, as, under the statute of the thirteenth Edward the First (called the `Statute of Entails'), would have been held an estate in fee tail, every such conveyance or devise shall vest an estate for life only in such grantee or devisee, who shall possess and have the same power over and right in such premises, and no other, as a tenant for life thereof would have by law; and, upon the death of such grantee or devisee, the said lands and tenements shall go and be vested in the children of such grantee or devisee, equally to be divided between them as tenants in common, in fee, and, if there be only one child, then to that one, in fee; and, if any child be dead, the part which would have come to him or her shall go to his or her issue; and if there be no issue, then to his or her heirs." Rev. St. 1855, p. 355, c. 32, § 5.

The defendant contends that as to the land in question, under the statutory estate so created, the remainder after the death of John Clarkson vested in Roy Congers, the adopted child, as the only child of John Clarkson, under the word "children," used in the statute above noted, or the word "heirs," in the last clause of said section. The plaintiffs, however, claim, and the circuit court so held, following Clarkson v. Clarkson, supra, that, as John Clarkson had no children living at the time of his death, the remainder vested in his brothers and sisters and their descendants. It is objected, further, that this deed of adoption is not legal and valid because it does not appear that the father of the adopted child consented to such adoption. The statute under which the deed of adoption was executed provides: "If any person in this state shall desire to adopt any child, or children, as his or her heir or devisee, it shall be lawful for such person to do the same by deed, which deed shall be executed, acknowledged and recorded in the county of the residence of the person executing the same, as in the case of conveyance of real estate." 1 Wag. St. p. 256, § 1. No provision is made by the statute, in a case like the present, for the consent of the natural parents of the party sought to be adopted. It has been held by this court that neither the natural parents nor guardian of the child or children proposed to be adopted are required to join in the execution of the deed of adoption, or consent thereto in order to entitle the child to inherit from the adopted parents. Reinders v. Koppelmann, 68 Mo. 482; In re Clements, 78 Mo. 352. The case of Luppie v. Winans, 37 N. J. Eq. 245, relied upon by plaintiffs in support of their position, has no application here. The statute of New Jersey expressly requires the consent of the parents to the act of adoption. Under the statutes of that state, the act of adoption devests the natural parents of all control over the child so adopted. We are of opinion, therefore, that the adoption of Roy Congers in this case was valid.

The next inquiry for our determination is: What are the rights of the adopted child? Can the adopted child in this case take property expressly limited to the "heirs of the body of the parents by adoption"? It is argued by counsel for plaintiffs that the decision by this court in Clarkson v. Clarkson, supra, is decisive of that question. In the concluding paragraph of that opinion the court says: "The defendant makes the point that the adopted child of John and Sarah Clarkson was a child, within the meaning of the statute, and hence the remainder passed to the adopted child. It is sufficient to say that no such question was presented by this record. The deed of adoption was excluded by the trial court on the objection of the plaintiffs, who are the appellants. The defendant took no appeal, and is in no way complaining of any ruling of the trial court." The question whether the adopted child was within the provision of the statute was not in that case, and not before the court. The court simply held, as the record in the case showed, that John Clarkson left no children; and, not having a father ...