Eckford v. Knox

• Decision Date: 31 December 1886
• Citation: Eckford v. Knox, 2 S.W. 372 (Tex. 1886)
• Parties: ECKFORD and Wife <I>v.</I> KNOX.
• Court: Texas Supreme Court

2 S.W. 372

ECKFORD and Wife

v. KNOX.

Supreme Court of Texas.

December 31, 1886.

Appeal from Bexar county.

Eckford, Simpson & James, for appellants. Waelder & Upson, for appellee.

WILLIE, C. J.

Article 1 of the Revised Statutes provides the means by which one person may adopt another as his legal heir. Article 2 provides that the party so adopted shall be entitled to all the rights and privileges of a legal heir to the party so adopting him; provided, however, that if the party adopting such heir have, at the time of such adoption, or shall thereafter have, a child begotten in lawful wedlock, such adopted heir shall in no case inherit more than one-fourth of the estate of the party adopting him. To ascertain the right of an adopted heir, we must read the foregoing provisions in connection with our statute of descent and distribution. In case of the death of a person leaving no husband or wife surviving, the children of the deceased inherit the entire separate estate. In case a husband or wife survives, he or she takes one-third of the personalty by absolute title, and one-third of the real estate for life, and the remainder passes to the children or their descendants. The interest of a decedent in the community property passes to his or her child or children, and, in default of such, to the surviving spouse. It will thus be seen that the only class of persons who primarily inherit from a deceased person every species of property of which he may die seized, whether it be separate or community, are his children. If he leave children, his wife cannot inherit his interest in the community estate; and, if he leave either children or their descendants, no collateral or relation in the ascending line can take any part of his separate property. To let in any other class of persons to the inheritance of the whole estate, common or separate, there must be no children of the decedent surviving him. Strictly speaking, there is no such thing as an heir of a living person. When the statute says that one person may adopt another as his heir, and that the latter thereupon becomes entitled to all the rights and privileges of a legal heir of the party so adopting him, it means that, upon the death of the adopting party, the other shall, if living, become entitled to an interest in all property of which he shall die intestate, and shall not be wholly excluded by any class of persons whatsoever. His heirship is not confined to the separate or the community estate. It includes them both. Otherwise he is not a full heir to the property of the party adopting him. He has not all the rights and privileges of such an heir, and to these the statute says he shall be entitled. If he were to take only in the event the adopting party have no children born in lawful wedlock, it would doubtless have been so said in the statute. He would not then have been an heir certain, but one whose right to inherit an interest in the entire estate depended upon the contingency that some person, or class of persons, having precedence in the inheritance, were not in being when the intestate died. If we take the liberty of postponing the adopted heir so as to give the children preference over him, in what class is he to be ranked? Will he partake of the inheritance with the wife, or the father or mother, or the grandfather and grandmother, or with collaterals, and, if so, in what degree? To such questions as these we can receive no answer that is justified by the statute, or by any process of reasoning that can be adopted. The result is that, unless we place the adopted heir upon the same plane with the children of the intestate, the statute is of no force whatever, and the adoption of an heir is a vain and useless ceremony.

But the statute does not leave us in doubt upon this question. The proviso is to the effect that, if the party adopting the heir have at the time or thereafter a child begotten in lawful wedlock, the adopted heir shall not inherit more than one-fourth of the estate of the party adopting him. Why the necessity of this proviso, if the heir could not inherit at all in case the deceased left a child or children? But there was a necessity for it if, without it, the adopted heir would share equally with the children of the deceased begotten in lawful wedlock. This, as the legislature saw, would be the natural effect of his heirship; and, to confine the amount of his inheritance within such limits as would give a large proportion of the decedent's estate to his children, they attached the proviso. They make it clear that he was to inherit, though the deceased might leave children surviving him; and that, so far as the inheritance was concerned, he occupied the position of a child, with no other restrictions upon his rights except such as...