Fisher v. Browning

• Decision Date: 13 July 1914
• Docket Number: 16005
• Citation: 66 So. 132,107 Miss. 729
• Court: Mississippi Supreme Court
• Parties: FISHER v. BROWNING et al

66 So. 132

107 Miss. 729

FISHER v. BROWNING et al

No. 16005

Supreme Court of Mississippi

July 13, 1914

APPEAL from the chancery court of Sunflower county. HON. E. W THOMAS, Chancellor.

Bill of Mary Browning and others against J. B. Fisher. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Case affirmed.

Flowers Alexander & Brown, for appellant.

D. M Quinn, J. Holmes Baker and S. F. Davis, for appellee.

OWEN Special Judge. MILLER, Special Judge, dissenting.

OPINION

OWEN, Special Judge.

On the 15th day of July, 1901, Church W. Rule and his wife Lula A. Rule, who were then living and having their domicile in Sunflower county, Mississippi, and then being without children, and being in the state of Kentucky, presumably on a visit there, in Kentucky, on said date signed what is called in the record, "articles of adoption." This was a contract merely, signed jointly by Church W. Rule and his wife on the one part and the Louisville Baptist Orphans' Home, by its president, on the other part, by which Church W. Rule and his wife, Lula A. Rule, are said to have adopted a child, then about three years of age, and an inmate of said institution, named Lula May Browning. By this contract the said Rule and wife obligated themselves to adopt the said infant, Lula May Browning, "and do hereby adopt said Lula May Browning, and covenant with said Louisville Baptist Orphans' Home that said Lula May Browning shall bear from this time forward the same legal relation to them as if she had been born unto them, and were their child, especially as to such property as would descend to her were she their child." After signing said articles of adoption, Church W. Rule and his wife took the said infant to their home in Sunflower county, Mississippi, and there it occupied the relation of a child to them, and was treated by them as their child, up to the time of their deaths, respectively.

It appears that the Louisville Baptist Orphans' Home was chartered and incorporated by an act of the general assembly of Kentucky, approved January 28, 1870 (Laws 1869-70, ch. 197), and amended by an act approved January 31, 1880 (Laws 1879-80, ch. 108), and that by virtue of its charter it was invested with all the rights of parents and natural guardians of any child committed to its care, and that it was also empowered to permit any suitable person to adopt any child in its custody and control as their own child upon proper covenants in writing being executed by such persons and its president, and acknowledged or proven in the clerk's office of Jefferson county, Kentucky, as deeds may be, and by the amendment of 1880 to this charter it was provided that by the articles of adoption, when executed and recorded, "such child shall become the heir at law of such person so adopting him or her, and be as capable of inheriting as though he or she were the child of such persons," etc. It appears also that the supreme court of Kentucky has held this act of incorporation constitutional, and that when this contract was executed it amounted there to a complete adoption, and authorized the child adopted to inherit as if it were the natural child of its parents.

We remark that the present Constitution of Kentucky has a provision similar to section 90 of our own Constitution, which forbids that any special laws shall be passed on the subject of adoption, and other things, but this Constitution of Kentucky was adopted after the act of incorporation aforesaid of the Louisville Baptist Orphans' Home, with a saving clause, and we do not think that it repealed that act.

On August 9, 1898, Mrs. Mary J. Rule, the mother of Church W. Rule, living in Sunflower county, Mississippi, died and left a considerable body of land, which descended on her death to her children, two of whom were then living, and to the heirs of the two of her children then dead. Mrs. Mary J. Rule was survived by one son, J. W. Rule, and a daughter, Emma. Her son, J. H. Rule, who died after she did, was survived by his widow, Mary Maude Rule, and her daughter, then an infant, Johnnie Floyce Rule, and her son, Church W. Rule, who died after his mother did, was survived by his widow, Lula A. Rule, and the adopted child, Lula May Browning Rule. On March 2, 1903, J. W. Rule, the surviving son of Mrs. Mary J. Rule, and the widows of his two deceased brothers, to wit, Mrs. May Maude Rule, the widow of John Rule, and Mrs. Lula A. Rule, the widow of Church W. Rule, filed in the chancery court of Sunflower county, Mississippi, a bill to which they made defendants Emma Rule, the surviving daughter of Mary J. Rule, an adult, and the two minors, Johnnie Floyce, the daughter of Mrs. May Maude, the widow of John Rule, and Lula May Browning Rule. The object of this bill, and its sole purpose was to partition the lands of Mrs. Mary J. Rule between her surviving son and daughter and the heirs of her deceased sons, J. W. Rule and Church W. Rule, and the bill prayed for a division of said lands of Mrs. Mary J. Rule into four parts; that is, one part might be set aside to J. W. Rule, and another part to Emma Rule; one part to the widow of John H. Rule, and her daughter, Johnnie Floyce Rule, jointly, and the fourth part to be set aside to Lula A. Rule, and the child, Lula May Browning Rule.

The bill of complaint thus filed contains the following statement, with reference to the position of Lula May Browning Rule:

"The said minor, Lula May Browning Rule was never adopted by any proceedings in court, according to the laws of the state of Mississippi, but the said Church W. Rule and his wife, Lula A. Rule, made their certain contract in writing with the Louisville Baptist Orphans' Home, bearing date the 15th day of July, 1901, executed in triplicate, and signed by said Church W. Rule and Lula A. Rule and the said Louisville Baptist Orphans' Home. By the said contract it was agreed that the said Church W. Rule and his wife, Lula A. Rule, should adopt, and they did thereby adopt, the said minor, whose name at that time was Lula May Browning, and that the said Lula May Browning should, from that time forth, bear the same relation to the said Church W. Rule and his wife, Lula A. Rule, as if she had been born unto them and were their child, especially as to such property as would descend to her if she were their child. Complainants herewith file a copy of this contract as part of this bill, and mark the same 'Exhibit A.' Complainants allege that from that time up to the time of the death of the said Church W. Rule, the said Church W. Rule and his said wife have had the care, custody, and control of said minor, and the said child is now in the care and custody of said Lula A. Rule. Your complainants are advised that by said articles of adoption, although there had been no proceedings in the courts, the said child is entitled to have a child's part in the said estate of Church W. Rule, but complainant Lula A. Rule, submits this question for decision of this court. The said Lula A. Rule is now the legally appointed guardian of the said Lula May Browning Rule; the said Johnnie Floyce has no guardian. It is asked that your Honor may adjudicate whether the said minor, Lula May Browning Rule, has an interest in said estate."

The suit in which this bill was filed is called cause No. 1100 in the record, being so numbered on the chancery court docket of Sunflower county.

The prayer of the bill, among other things, is:

"That your honor may adjudicate whether the said minor, Lula May, has an interest in said estate . . . and one of said shares to the said Lula A. Rule and her adopted minor child, Lula."

Guardian ad litem was appointed for the minors, including Lula May Browning Rule, and answered, submitting the interest of the minors to the protection of the court, and praying that the allegations of the bill be required to be substantiated by strictly legal proof. The chancellor rendered a written opinion, in which he held that Lula May Rule was in fact adopted by Church W. Rule and his wife, and as such adopted child inherited one-half of the estate and lands in Mississippi of Church W. Rule, and in the decree of partition set apart one of the four shares to Lula A. Rule and her adopted child, Lula May Rule. From this decree of the chancery court in the partition proceedings, cause No. 1100, there was never any appeal, and the right of appeal is barred by the statute of limitations. Church W. Rule died intestate on the 7th day of February, 1903, and the infant, Lula May Browning Rule, died on the 29th day of November, 1905. Mrs. Lula A. Rule, after the death of her husband, Church W. Rule, married the appellant, J. B. Fisher, who claims all the land as the only heir of his wife, Lula A. Rule Fisher, who had died since the death of Lula May Browning Rule, and the appellant claims that when the child died, it had no interest in the lands of Church W. Rule, and inherited nothing from him, but that if it did inherit an interest in the lands of Church W. Rule, that upon the child's death this land descended to its adopted mother, Lula A. Rule, and at her death descended to him, appellant. The bill in the present case was filed by appellees, claiming to be the brothers and sisters by the blood of Lula May Browning Rule, and claiming that as the adopted child of Church W. Rule she inherited half of his lands upon his death, and upon the death of Lula May Browning Rule the said lands descended to them as brother and sisters by blood, and did not descend to its adopted mother, Lula A. Rule, and a decree made for appellees is appealed from to this court.

There are many questions in the case, and some of them are of very great importance and are of first impression in this court...