Hartwell v. Tefft

• Decision Date: 21 November 1896
• Parties: HARTWELL v. TEFFT.
• Court: Rhode Island Supreme Court

35 A. 882

19 R.I. 644

HARTWELL

v. TEFFT.

Supreme Court of Rhode Island.

Nov. 21, 1896.

Bill in equity filed by Frederick W. Hartwell against Mary Abby Tefft. Decree for defendant.

Bassett & Mitchell, for complainant.

Willard B. Tanner, for respondent.

STINESS, J. The will of Dexter Thurber, late of Providence, left a fund to trustees, to pay the income, in stated proportions, to children and grandchildren, and upon their death to pay their respective portions to their lawful issue; and, if any of them should die without leaving lawful issue, then a gift over. The testator left a granddaughter, Emma Thurber Brown, who married Lyman B. Teft't. She died leaving no issue of her body, but, after the death of the testator, she joined her husband in a petition to the municipal court of Providence for the adoption of the respondent, Mary Abby Tefft, the child of her husband by a former wife, as their child, pursuant to Pub. St. R. I. c. 164, which petition was granted, and a decree entered. Mrs. Tefft having died, this bill is filed to ascertain whether the fund goes to her adopted daughter, under the bequest to her lawful issue.

Our statute for the adoption of children (Pub. Laws 1866, c. 627) says: "A child so adopted shall be deemed, for the purposes of inheritance by such child and all other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as if he had been born to them in lawful wedlock, except that he shall not be capable of taking property expressly limited to the heirs of the body or bodies of the parents by adoption, nor property from the lineal or collateral kindred of such parents by right of representation." The argument for the complainant is that, in using the word "issue," the testator had in mind "heirs of the body" of his granddaughter, and so the case is really within the exception of the statute. The argument is based both upon a strict construction of the word "issue," and the fact that the will was made in 1858, before the statute for the adoption of children. A codicil was added in 1865, another in 1867, and a third in 1869. The last two codicils were after the statute, and as they do not revoke the will, but expressly declare that they are to be a part and portion of the will and codicils, they are a republication of the will as of the later date. A part of the argument is thus disposed of, although the fact remains that the adoption did not take place until after the testator's death. It was, however, in his lifetime, and before the last two codicils to his will, a possibility which is presumed to have been known to him, and in view of such possibility his will must be construed.

The meaning of the word "issue," in a will, where, as in this case, nothing appears to limit its legal import, was carefully considered in Pearce v. Rickard, 18 R. I. 142, 26 Atl. 38. Following the well-settled current of authority, it was held that the word, so used, includes all descendants; and as the statute gives, to an adopted child the status of a descendant, and all the legal consequences and incidents thereof, the same as though he were born in lawful wedlock, there could be no question in such a case as this, were it not for the exception of a limited estate. The question, then, is whether this fund is within the exception. In Maine, under a statute similar to ours, it was held, in Warren v. Prescott, 84 Me. 483, 24 Atl. 948, that the exception relates only to an inheritance as an heir of the body. The reasoning is that, where an estate is limited to one...