Davis v. Fogle
| Decision Date | 11 March 1890 |
| Docket Number | 15,040 |
| Citation | 23 N.E. 860,124 Ind. 41 |
| Parties | Davis v. Fogle et al |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled May 15, 1890.
From the Noble Circuit Court.
Judgment reversed, with costs.
J Morris, J. M. Barrett and T. M. Eells, for appellant.
H. G Zimmerman, F. M. Prickett and P. V. Hoffman, for appellees.
This was an action to quiet title to real estate. William C. Davis, who died on the 11th day of April, 1889, was, at the time of his death, the owner in fee of the real estate described in the complaint. The appellant, Esther S. Davis, was the third, and childless wife of the deceased. The deceased had no children by his first wife. The appellee Mina A. Fogle was his child by the second wife. In 1888 said William C. Davis adopted Eli C. Davis as his child and heir. After the marriage of said William C. Davis to his third wife, Esther S. Davis, and before the adoption of Eli C. Davis, he made a will devising the real estate in controversy to his wife, Esther S. Davis, in fee. The appellee Mina A. Fogle brought this suit, making Esther S. and Eli C. Davis defendants, alleging the facts, and contended that the adoption of Eli C. Davis by her father, William C. Davis, revoked the will, and that she and Eli C. each inherited a one-half interest in the real estate, subject to the life estate in favor of Esther S. Davis, the third and childless wife of the deceased.
The appellant, Esther S. Davis, demurred to the complaint, for the want of facts, which demurrer was overruled and she excepted.
The question presented for decision is, does the adoption of a child, under the statutes of this State, operate to revoke an antecedent will of the adopting father, he having made no provision, by the will or otherwise, for such adopted child? This question must be determined mainly by the construction to be given to our statutes.
Counsel for appellee, in their able brief in this case, contend that as "the statute declaring and defining the rights and interests of adopted heirs in the estate of their father, contains no limiting or qualifying words; nor are the rights and interests of the adopted heir restricted to the rights and interests of a 'natural heir' in any particular case or class of circumstances; nor to natural heirs born prior to the date of the will of their father, whereby no provision has been made for them, but the wording is that the adopted child shall be entitled to and receive all the rights and interests in the estate of such adopting father, by descent or otherwise, of a natural heir, and as the legal status, rights and capacities of an adopted heir are, by the statute, made co-equal with those of a natural heir, then co-ordinate legal consequences and results must of necessity flow therefrom; hence, if the natural birth of an heir subsequent to the date of its father's will (no provision having been therein made for such heir) shall be deemed a revocation of the will of its father, so, also, the legal birth of an heir subsequent to the date of its father's will (no provision having been therein made for such heir) shall in like manner, be deemed to work a revocation of its father's antecedent will."
So much of the statute providing for the adoption of children as is material reads as follows:
"Such court, when satisfied that it will be for the interest of such child, shall make an order that such child be adopted; and from and after the adoption of such child, it shall take the name in which it is adopted, and be entitled to and receive all the rights and interest in the estate of such adopted father or mother, by descent or otherwise, that such child would do if the natural heir of such adopted father or mother." Section 825, R. S. 1881.
It is further provided that if such child shall die without leaving wife or husband, issue, or their descendants surviving him or her, seized of any real estate or personal property which may have come to such child by gift, devise, or descent, from such adopting father or mother, such property shall descend to the heirs of such adopting father and mother the same as if such child had not been adopted. Elliott's Supp., section 29.
It is held by this court that where an adopted child dies without issue, owning real estate which came to it by inheritance from its adopting father or mother, the same shall descend, on the death of the child, to the adopting father or mother surviving, in preference to the natural mother. Humphries v. Davis, 100 Ind. 274; Humphries v. Davis, 100 Ind. 369; Paul v. Davis, 100 Ind. 422.
The court in the case of Humphries v. Davis supra, at p. 282, say: These decisions go as far, it would seem, in holding the legal status of the adopted child to be the same as a natural child, as is warranted under the statute; but the conclusions are reached on broad, equitable principles, and differ very materially from the questions presented in this case. These decisions go no further than to hold that the surviving adopting father or mother inherits from the adopted child such property only as it inherited from the deceased adopting father or mother, and the statute was so amended in 1883 (Elliott's Supp., section 29), as to provide that property which may come to such adopted child by descent, devise, or gift,...
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