Hockaday v. Lynn

• Citation: 200 Mo. 456,98 S.W. 585
• Parties: HOCKADAY v. LYNN et al.
• Decision Date: 22 December 1906
• Court: United States State Supreme Court of Missouri

98 S.W. 585

200 Mo. 456

HOCKADAY v. LYNN et al.

Supreme Court of Missouri, Division No. 1.

December 22, 1906.

1. ADOPTION—COMMON LAW—CIVIL LAW.

Adoption was unknown to the common law, but it was an incident of the civil law, and incorporated in the Code Napoleon.

2. SAME—CONSTRUCTION OF STATUTES.

Statutes of adoption are strictly construed against the adopted child.

3. SAME—STATUS OF CHILD.

The act of adoption is to be liberally construed in favor of the adopted child.

4. SAME—INHERITANCE BY CHILD.

Rev. St. 1899, § 2908, provides that the property of one who dies intestate shall descend to "his kindred." Section 5246 provides that it shall be lawful to adopt a child as heir or devisee. Section 5247 provides that a married woman may, by joining with her husband in the deed of adoption, adopt a child. Section 5248 gives an adopted child the same rights against its adoptive parents as to support and humane treatment as children have against lawful parents, and confines the effect of such provision to persons executing the deed of adoption. Held, that the act of adoption does not bring the adopted child into relationship with any one but the adoptive parent, and such child cannot inherit from the brother of her deceased adoptive father, the share which the adoptive father would have taken had he survived his brother.

Appeal from Circuit Court, Cass County; H. C. Timmonds, Special Judge.

Action by Lillie Hockaday against Cicero Lynn and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Chas. W. Sloan and R. T. Railey, for appellant. Allen Glenn, for respondents.

LAMM, J.

Cast on demurrer lodged below, plaintiff stood on her petition, submitted to judgment, and appealed.

The case is this: In 1900 William E. Lynn, a bachelor, died intestate, seised of an undivided half interest in a farm of 295 acres in Cass county, leaving surviving him a brother, Cicero, and nephews and nieces (the children of a deceased brother and the children of a deceased sister) and their descendants. The deceased brother (James Lynn) died in 1896, leaving one son and also an heir by adoption, the plaintiff, now intermarried with one Hockaday. Plaintiff's theory being that she was an heir of her adoptive father's brother, William E. Lynn, she sued Cicero and said surviving nephews and nieces (and the descendants of those dead) in partition. In addition to conventional averments, plaintiff pleaded her adoption, her intermarriage with Hockaday, and further set forth an adjudication in her favor establishing her right as an adopted child of said James Lynn. See Lynn v. Hockaday, 162 Mo. 111, 61 S. W. 885, 85 Am. St. Rep. 480. Defendants' theory being that plaintiff took nothing as heir to the brother of her adoptive father, and all the facts appearing in her petition, they demurred with the result aforesaid. Such demurrer concedes the truth of every averment well pleaded in the petition; hence the issue here becomes one of law. It is, moreover, one of first impression in this state, and may be formulated thus: Does an adopted child, by reason of such adoption, become an heir to the real estate of a brother of her adopting parent, who died after such parent, intestate? Or, put another way, as formulated by defendants' counsel: "Does the adoption make her an heir only to the property of James Lynn, the adopting parent, or does the adoption make her an heir by representation in all the property which might have come to her adopting parent had such adopting parent survived his bachelor brother?"

The question presented being new, its answer must be got at by attending to the history of the law of adoption, its growth, the statute of adoption, the statute of descents and distributions, the analogies of the law to be searched out in cases decided by this court on related questions, and to the persuasive authority of the pronouncements of the highest courts of other states. Adoption was unknown to the old common law of England. Ross v. Ross, 129 Mass., loc. cit. 262, 37 Am. Rep. 321; Schouler's Dom. Rel. (5th Ed.) § 232. It was known to the Roman law, was attended by ceremonial dignity, and was of deep meaning and far-reaching results—a notable historical example of which is cited by Napton, J., in Reinders v. Koppelman, 68 Mo., loc. cit. 496, 30 Am. Rep. 802 (from the leading case of Vidal v. Commagere, 13 La. Ann. 517), whereby, Tiberius being the stepson and adopted son of Augustus, his nephew, Germanicus (adopted by Tiberius on the command of Augustus Cæsar), became the grandson of Augustus himself. "Adoption," says Merrick, C. J., in Vidal v. Commagere, supra, "was known to the Athenians and Spartans, as well as the Romans and ancient Germans, and was familiar to the writers of the New, if not the Old, Testament." See, also, In the Matter of Upton, 16 La. Ann. 175; 1 Cyc. 917; Abney v. De Loach, 84 Ala. 393, 4 South, 757. It seems to have taken root in Egypt (Exodus 2:10). Paul, himself a lawyer profoundly instructed in Hebrew jurisprudence, assumed the doctrine of adoption to be well known to his readers, and borrows the use of that doctrine as a hammer to clinch nails driven by him on matters of faith. Rom. 8: 16, 17. q. v. The doctrine was not unknown to the Babylonians—witness the Code of Hammurabi, compiled from 2285 to 2242 B. C. Sections 185 to 193 inclusive of that code are curious and read as follows:

"Sec. 185. If a man has taken a young child `from his waters' [like Moses was taken by the daughter of Pharaoh, possibly, q. v.] to sonship, and has reared him up, no one has any claim against that nursling.

"Sec. 186. If a man has taken a young child to sonship, and when he took him his father and mother rebelled, that nursling shall return to his father's house.

"Sec. 187. The son of a Ner-Se-Ga, a palace warder, or the son of a vowed woman no one has any claim upon.

"Sec. 188. If an artisan has taken a son to bring up, and has caused him to learn his handicraft, no one has any claim.

"Sec. 189. If he has not caused him to learn his handicraft, that nursling shall return to his father's house.

"Sec. 190. If a man the child whom he took to his sonship and has brought him up, has not numbered him with his sons, that nursling shall return to his father's house.

"Sec. 191. If a man, after a young child whom he has taken to his sonship and brought him up, has made a house for himself and acquired children, and has set his face to cut off the nursling, that child shall not go his way, the father that brought him up shall give to him from his goods one-third of his sonship, and he shall go off; from field, garden, and house he shall not give him.

"Sec. 192. If a son of a palace warder, or of a vowed woman, to the father that brought him up, and the mother that brought him up, has said `thou art not my father, thou art not my mother,' one shall cut out his tongue.

"Sec. 193. If a son of a palace warder, or of a vowed woman, has known his father's house, and has hated the father that brought him up or the mother that brought him up, and has gone off to the house of his father, one shall tear out his eye."

Adoption was also an incident of Spanish law, was incorporated into the Code Napoleon, and from that Code (or the Spanish law) found its way through Louisiana and Texas into the statutes of their sister states. Tiffany's Per. & Dom. Rel. § 112; Ross v. Ross, supra; Reinders v. Koppelmann, supra. As shown by Napton, J., in the Reinders Case, our statute was not directly borrowed from the Roman law, and is, therefore, not attended with all the incidents of that law—one incident of which was that the adopted child took on the full rights of a child in its new family and lost its birth rights, becoming a stranger and an alien in the family of its origin. From the twilight of remotest time it was considered that the "life of the flesh was in the blood." Lev. 17: 10, 11, 12. Blood was of the mysterious essence of religious rites. The blood atonement, the blood tie, to have the same blood run in one's veins, to be bone of the bone, flesh of the flesh, were of the essential elements of things, earthly and spiritual. Hence, when the Mingo chief exclaimed, "There runs not a drop of my blood in the veins of any living creature," the picture of his savage desolation was made complete at one stroke. Nevertheless, it is pointed out by those scholars who have dug up the origin of things from the dust of the past that the yoke of the blood tie, in this age or that, lay loosely on ancient peoples. It is shown that children might be lawfully exposed (devoted) to death, fed to beasts, burned in the red hot bowels of war idols, sacrificed to vows—witness the fate of Jephthah's daughter and the fate of Iphigenia, the child of Agamemnon's loins—and vacancies were filled by transplanting, or, to put it otherwise, grafting was allowed. Especially was this transplanting in vogue during the decadence of the Roman Empire. Schouler's Dom. Rel. (5th Ed.) p. 362. It may, then, be said that, whether from sentimental causes or peculiarities of feudal tenures, the adoption of children came to be eyed somewhat askance by Anglo-Saxon peoples. Adoption being unknown to the common law and in derogation of it, statutes of adoption have always been more or less strictly construed as against the adopted child. Keegan v. Geraghty, 101 Ill. 26; Clarkson v. Hatton, 143 Mo., loc. cit. 57, 44 S. W. 761, 39 L. R. A. 748, 65 Am. St. Rep. 635; Reinders v. Koppelman, 94 Mo. 338, 7 S. W. 288. This frosty attitude is shadowed forth in the peculiar and cautious terminology of text-writers. Thus, Tiffany speaks of the relation as an "artificial relation." Tiffany's Per. & Dom. Rel. § 112. Schouler speaks of the relation as a "quasi parental relation." Schouler's Dom. Rel. (5th Ed.) § 232. Strict construction, however, is not extended to the act of adoption itself. That is liberally construed in favor of the child adopted. Parsons v. Parsons, 101 Wis. 76...