Fosburgh v. Rogers

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

21 S.W. 82

114 Mo. 122

Fosburgh et al., Appellants, v. Rogers et al

Supreme Court of Missouri, First Division

February 6, 1893

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

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 fifth of March, 1878, Dr. James H. McLean and his wife, Sarah L. McLean, executed a deed for the adoption of the 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 $ 1 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 fourth 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.

"[Seal.] James H. McLean,

"[Seal.] Sarah L. McLean."

This instrument was duly acknowledged March 4, 1878, and recorded March 5, 1878.

On the fourteenth 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 twelfth of August, 1886, Dr. James H. McLean died. His will was thereafter probated, and his widow accepted its provisions.

On the tenth 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 $ 1 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 fifth day of September, A. D. 1887.

"[Seal] Sarah L. McLean."

This instrument was duly acknowledged on the eighth of September, 1887, and recorded on the tenth of October following.

On the third 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 co-defendants 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.

Affirmed.

A. A. Paxson, Alexander Martin and Hough & Hough for appellants.

(1) The act of February 23, 1857, being in derogation of the common law, is to be strictly construed as against any person claiming any rights under it in contravention of the general law of inheritance, founded upon natural relationship. Keegan v. Geraghty, 101 Ill. 33; Estate of Jessup, 81 Cal. 408; In re Chambers, 80 Cal. 216; Wallace v. Rappleye, 103 Ill. 229; Tyler v. Reynolds, 53 Iowa 148; Gill v. Sullivan, 55 Iowa 341; Shearer v. Weaver, 56 Iowa 578; Wyeth v. Stone, 144 Mass. 441; People v. Congdon, 77 Mich. 351; Morrison v. Session's Estate, 70 Mich. 297; King v. Davis, 91 N.C. 142; Upson v. Noble, 35 Ohio St. 655; Ex Parte Clark, 87 Cal. 638; Sutherland on Statutory Construction, sec. 400, p. 510, and sec. 139, p. 182; Smith v. Haworth, 53 Mo. 88; State v. Clinton, 67 Mo. 380; Yankee v. Thompson, 51 Mo. 234; Mueller v. Kaessmann, 84 Mo. 323. (2) The deeds of adoption in this case are void because they show on their face that the children attempted to be adopted were without authority of law given fictitious names by the persons executing the deeds, and the real names of said children nowhere appear in said deeds, nor do the parents or guardians of said children join in the execution of the same. Revised Statutes, 1865, sec. 1, ch. 119, p. 478; In re Clements, 78 Mo. 352; Skelton v. Sackett, 91 Mo. 377. (3) Under the law of adoption of children in this state (Revised Statutes, 1865, p. 478, and Revised Statutes, 1889, secs. 968, 971), the adopted child does not become an heir at law of the person executing the deed of adoption, and the real property of the intestate does not pass to such adopted child to the exclusion of blood relatives of the deceased, and the adopted child has only such rights as are defined in the third section of said act, to-wit, the right to support and maintenance and proper and humane treatment. Act of 1857, section 3, and section 970, Revised Statutes, 1889.

Rowell & Ferriss, Boyle, Adams & McKeighan and Joseph S. Laurie for respondents.

(1) Our statute, concerning adoption of children, confers upon the child adopted, according to its provisions, the right of heirship from the adoptive parents. Reinders v Koppelmann, 68 Mo. 482; In re Clements, 78 Mo. 352; Sharkey v. McDermott, 91 Mo. 647; Reinders v. Koppelmann, 94 Mo. 338; Davis v. Hendricks, 99 Mo. 478. First. The foregoing decisions amount to a rule of property. Wells on Res Adjudicata & Stare Decisis, sec. 594; Sutherland on Statutory Construction, sec. 318; Reed v. Ownby, 44 Mo. 204. Second. Our act relating to the adoption of children so construed by the foregoing decisions of this court as to entitle an adopted child to inherit from its adoptive parent, by the revision of 1889, has received legislative sanction and that, too, whether the revision of 1889 be a reenactment of the adoption act or a continuance of same in force. Sanders v. Anchor Line, 97 Mo. 29; Handlin v. Morgan Co., 57 Mo. 114. Third. Statutes of descents and distributions are not required to be amended in order to include adopted children; and herein of our damage act and special legislation prior to the adoption of our constitution of 1865 and legislation of other states. Ross v. Ross, 129 Mass. 243; Powers v. Hafley, 85 Ky. 671; Estate of Wardell, 57 Cal. 484; Newman's Estate, 75 Cal. 213; Eckford v. Knox, 67 Tex. 200; Vidal v. Commagere, 13 La. Ann. 56; Special Act of Missouri Legislature, approved March 3, 1857; Laws of Missouri, 1856-7 p. 205. Fourth. Analysis of our adoption act in itself manifests a clear legislative intent to create a right of heirship on the part of the adopted child. Vidal v. Commagere, supra, and cases therein cited; Bingham on Descents, p. 293; Eckford v. Knox, supra; Reinders v. Koppelmann, 68 Mo. supra. Fifth. If the first section of our adoption act is not complete and perfect in itself and does not create the relation of heirship, then section 3 supplements it, so as to accomplish that purpose. Reinders v. Koppelmann, 68 Mo. supra; In re Clements, supra. (2) The deeds of adoption of respondents are valid, notwithstanding appellants' objection thereto. First. It was not necessary to have the family or "original" name of the children adopted inserted in the deeds as grantees. Second. Devlin on...