Eureka Life Ins. Co. v. Geis
| Decision Date | 25 June 1913 |
| Citation | 88 A. 158,121 Md. 196 |
| Parties | EUREKA LIFE INS. CO. v. GEIS et al. |
| Court | Maryland Court of Appeals |
Appeal from Circuit Court of Baltimore City; Henry Duffy, Judge.
Partition by heirs of Ann C. Hammond, deceased, Beulah E. B. Hammond an adopted child of Rezin W. Hammond, deceased, and others. From a decree ratifying a sale for partition asked for by the plaintiffs, the purchaser thereat, the Eureka Life Insurance Company, appeals. Affirmed.
Argued before BOYD, C.J., and BRISCOE, BURKE, THOMAS, PATTISON, and STOCKBRIDGE, JJ.
Emil Budnitz, of Baltimore, for appellant. Carlyle Barton and Randolph Barton, both of Baltimore, for appellees.
Ann C Hammond devised certain ground rents, specifically mentioned in the second clause of her will, to her son Rezin W. Hammond for and during his natural life, and after his death to his children equally, share and share alike, but, should no child or descendant be living at the time of his death, then the said property was to go to and vest absolutely in the "right heirs" of the testatrix.
The son survived the mother and died on the 31st day of May, 1911 leaving no natural child or descendent surviving him, but leaving one Beulah E. B. Hammond, an infant, who by decree of the circuit court for Anne Arundel county, passed October 4 1901, had been declared his adopted child.
On May 10, 1912, three daughters of the testatrix filed their bill of complaint against the widow and all the children of a deceased son of the testatrix, who, with the plaintiffs, constituted, as it is alleged, all the heirs at law of the said testatrix, and against Beulah E. B. Hammond, the said adopted child of Rezin W. Hammond, deceased, for the sale of said ground rents for the purposes of partition.
The bill, in addition to the facts we have stated, contained the essential allegations of a bill for the sale of land for partition, and denied that "said Beulah E. B. Hammond is entitled to any right or interest in any of said property, or that the said Rezin W. Hammond had any power to devise any part of said property to any one." An answer admitting the allegations of the bill was filed by all the defendants except the said Beulah E. B. Hammond and one insane defendant; for these defendants answers were filed by guardians ad litem.
Evidence showing the adoption of the infant defendant as the child of Rezin W. Hammond in the manner above stated was taken with other evidence in support of the bill, and the counsel appointed by the court to appear for and represent the infant defendant in these proceedings contended, and so argued to the court below, that she, as the adopted child of Rezin W. Hammond, was entitled to the ground rents aforesaid to the exclusion of the heirs of the testatrix, the other parties to the bill. This contention, of course, if adopted, would have resulted in the dismissal of the bill; but the learned judge below held that she, as such adopted child of the life tenant, could not take under the will of Ann C. Hammond, and decreed the sale of the property under the bill filed. The ground rents were thereafter sold, under said decree, to the appellant, and the sale was reported to the court.
The appellant, as such purchaser, excepted to the ratification of the sale, alleging as grounds therefor that the trustee could not convey to it a marketable title, inasmuch as "there has been no judicial determination of the right vel non of said Beulah E. B. Hammond to said property, as against the right heirs of said Ann C. Hammond, who are plaintiffs and defendants in these proceedings, and said question cannot be properly determined in these proceedings."
As provided by section 72 of article 16 of the Code of 1912: "The several equity courts of this state, upon the application of any person residing in the city or county where such application is made, shall have power to pass a decree declaring any minor child the adopted child of the petitioner." It was by the authority of this section of the Code that Beulah E. B. Hammond was, upon the application or petition of the said Rezin W. Hammond, declared by the decree of the court aforesaid to be the adopted child of the petitioner. And as provided by section 74 of the said article: "The effect of such decree of adoption shall be to entitle the child so adopted to the same rights of inheritance and distribution as to the petitioner's estate *** as if born to such petitioner in lawful wedlock." In section 76 of the same article it is provided that: "The term 'child' or its equivalent in a deed, grant, will or other written instrument shall be held to include any child adopted by the person executing the same, unless the contrary plainly appears by the term thereof, whether such instrument be executed before or after the adoption."
The life estate of Rezin W. Hammond in said lands was not such an estate as his adopted child could acquire from him, either by inheritance or devise. The only interest claimed by her in the lands is the interest, if any, that passed to her as the " child" of R. W. Hammond under the will of Ann C. Hammond, and as she is the adopted child of R. W. Hammond, she cannot, by the provisions of the statute, take under the will of Ann C. Hammond. See the cases of Sewall v. Roberts et al., 115 Mass. 262; Wyeth v. Stone, 144 Mass. 441, 11 N.E. 729; Van Derlyn v. Mack, 137 Mich. 146, 100 N.W. 278, 66 L. R. A. 437, 109 Am. St. Rep. 669, 4 Ann. Cas. 879; Quigley v. Mitchell, 41 Ohio St. 375, construing similar statutes in other states.
The learned court below was entirely right, in our opinion, in holding that the property did not pass to Beulah E. B. Hammond, the adopted child of Rezin W. Hammond, deceased.
The plaintiff, however, as we have said, contends that this...
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