Fosburg v. Rogers

• Decision Date: 06 February 1893
• Citation: 114 Mo. 122,21 S.W. 82
• Parties: FOSBURG et al. v. ROGERS et al.
• Court: Missouri Supreme Court

21 S.W. 82

114 Mo. 122

FOSBURG et al. v. ROGERS et al.

Supreme Court of Missouri, Division No. 1.

February 6, 1893.

ADOPTION — RIGHTS BY INHERITANCE — CONSTRUCTION OF STATUTES AND DEEDS.

1. A child adopted in accordance with the Missouri statute acquires a right to inherit from the adoptive parents, upon their intestacy.

2. The rule, "ut res magis valeat quam pereat," applied to a statute.

3. The inheritable right of an adopted child does not conflict with the statute of descents. The statute touching adoption points out who are to be considered "children," within the meaning of the statute of descents.

4. Where the law provided that one might, by deed, adopt a child as his "heir and devisee," but the deed in question adopted the child as "heir or devisee," while otherwise plainly showing an intent to follow the statute, the adoption is held valid.

5. Statutes and deeds should receive a reasonable construction, so as to give effect to their intent.

6. A child was by deed adopted under the surname of its adoptive parents, without disclosing his former name. Held, that the law did not require mention of that name, if his identity was otherwise indicated with certainty.

(Syllabus by the Judge.)

Appeal from St. Louis circuit court, L. B. Valliant, Judge,

Ejectment by Bessie H. Fosburg and others against Rose C. Rogers and others. From a ruling that plaintiffs were not entitled to recover, they appeal. Affirmed.

The facts appear in the following statement by BARCLAY, J.:

This is an action in ejectment for the possession of certain real estate in the city of St. Louis. Both parties trace title to a common source, — Dr. James H. McLean. On the 5th of March, 1878, Dr. James H. McLean and his wife, Sarah L. McLean, executed a deed for the adoption of defendant C. Hart McLean, under the statutes of Missouri, in the following form, viz.: "This indenture made and executed this fourth day of March, A. D. one thousand eight hundred and seventy-eight, by and between James H. McLean and his wife, Sarah L. McLean, of the city of St. Louis, state of Missouri, parties of the first part, and C. Hart McLean, of the same place, party of the second part, witnesseth that we, the said James H. and Sarah L. McLean, for and in consideration of the love and affection we bear unto said C. Hart McLean, a minor child, now about nine (9) years old; and in further consideration of the fact that we have had the sole care, support, education, and nurture of said minor child from the time when said minor child was about seven months old unto the present day; and in further consideration that we have given said minor child our name, and he has never been known by any other name; and in further consideration of one dollar to us in hand paid by the said C. Hart McLean, the receipt whereof is hereby acknowledged, — do take, receive, acknowledge, and adopt, as our child, the said C. Hart McLean, having been born on the 4th day of April, A. D. 1869; to have and to hold said minor child. C. Hart McLean, unto us, the said James H. and Sarah L. McLean, as our child, for and during the life of the said C. Hart McLean, with all the rights as heir or devisee, the same rights as a child of our bodies, and all the privileges and obligations existing between parent and child, according to the provisions of the act of the general assembly of the state of Missouri, approved February 23, 1857, which act expresses the intention of the parties, and by which they will be governed. In witness whereof the parties of the first part to these presents have hereunto set their hands and seals the day and year first above written. James H. McLean. [Seal.] Sarah L. McLean. [Seal.]" This instrument was duly acknowledged March 4, 1878, and recorded March 5, 1878. On the 14th of January, 1885, Dr. James H. McLean published his will, bequeathing all of his property to his wife, Sarah L. McLean, for life, with power to dispose of same meanwhile by deed or will. The provisions of Dr. McLean's will, so far as they relate to C. Hart McLean, are as follows: "The controlling feature of this, my last will and testament, is that my said wife, Sarah L. McLean, shall own and enjoy, as long as she lives, all of said estate, with full power of disposal on her part while living, and at her death, and that my wife shall be the guardian of our son, Charles Hart McLean, and our daughter, Sarah Grace McLean, until they shall have attained each their legal majority by the laws of the state of Missouri." "The devise herein to my said wife is in lieu of dower and all marital rights. I direct that she shall receive promptly, after my decease, such funds as she requires for her support, and that of my son, Charles Hart McLean, and my daughter, Sarah Grace McLean, without order or allowance from court." On the 12th of August, 1886, Dr. James H. McLean died. His will was thereafter probated, and his widow accepted its provisions. On the 10th of October, 1887, Mrs. McLean executed a deed of adoption of defendant James H. McLean, as follows, viz.: "Know all men by these presents, that I, Sarah L. McLean, of the city of St. Louis, and state of Missouri, in consideration of the sum of one dollar to me in hand paid, and the love and affection I have for James Henry McLean, a minor child now living with me in the city of St. Louis aforesaid, have adopted, and by these presents do adopt, as my own child, the said James Henry McLean, and I do by these presents confer and confirm upon the said child all the rights and privileges appertaining thereto, as by the statutes made and provided. In witness whereof I have hereunto set my hand and seal this 5th day of September, A. D. 1887. Sarah L. McLean. [Seal.]" This instrument was duly acknowledged on the 8th of September, 1887, and recorded on the 10th of October following. On the 3d of December, 1889, Mrs. Sarah L. McLean died suddenly, intestate, never having remarried, or exercised the power of disposal given by the will of her husband, Dr. McLean. Plaintiffs comprise all the collateral blood relations of both Dr. James H. McLean and his wife, who would inherit from either of them, in case of intestacy, provided the alleged child or children do not lawfully acquire the property to their exclusion. Defendant Rose C. Rogers is the tenant of the property in dispute, under her codefendants, C. Hart McLean and James H. McLean, who claim title under the two deeds of adoption above quoted. The cause was tried by the court. At the close of the evidence a declaration of law was given, to the effect that plaintiffs were not entitled to recover. They then appealed to the supreme court to reverse the ruling mentioned. The other facts appear in the opinion of the court.

Alex. Martin, Hough & Hough, and Alfred A. Paxson, for appellants. Rowell & Ferriss, Boyle, Adams & McKeighan, and Jos. S. Laurie, for respondents.

BARCLAY, J.

This case turns on the question of the sufficiency of the steps taken by James H. McLean and his wife to adopt C. Hart McLean as their heir, under the Missouri law. The deed executed and recorded by them with a view to such adoption appears at large in the statement accompanying this opinion. If that act was valid to effectuate the purpose apparently intended, we need not take up any other question that the facts may suggest. No question is raised of the rights of defendants, between themselves. Plaintiffs assert the invalidity of that deed on various grounds.

1. The chief objection goes to its substance, and declares that "under our statute of adoption the adopted child does not become an heir at law of the person executing the deed of adoption, and as such entitled to inherit from an intestate, to the exclusion of his blood relatives, but has only such rights as are defined in the third section of the act." The sections whose meaning is thus drawn in question are the following, viz.: "Sec. 968. Adoption of children shall be by deed. 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...