Hockaday v. Lynn

• Decision Date: 22 December 1906
• Parties: LILLIE HOCKADAY, Appellant, v. CICERO LYNN et al
• Court: Missouri Supreme Court

98 S.W. 585

200 Mo. 456

LILLIE HOCKADAY, Appellant, v. CICERO LYNN et al

Supreme Court of Missouri, Division One

December 22, 1906

Appeal from Cass Circuit Court. -- Hon. H. C. Timmonds, Special Judge.

Affirmed.

Chas W. Sloan and R. T. Railey for appellant.

(1) Plaintiff was the legally adopted child of James Lynn deceased, and as such was entitled to inherit as if born to him in lawful wedlock -- or just as a child by blood. Lynn v. Hockaday, 162 Mo. 111; secs. 968, 970, R. S 1889; sec. 5248, R. S. 1899; Fosburgh v. Rogers, 114 Mo. 133; Moran v. Stewart, 122 Mo. 295, 132 Mo. 73; In Re Estate Moran, 151 Mo. 557; Warren v. Prescott, 24 A. 948, 84 Me. 483; Ross v. Ross, 129 Mass. 243; Gray v. Holmes, 57 Kan. 217; Power v. Hafley, 85 Ky. 671; Stearns v. Allen, 183 Mass. 404; Humphries v. Davis, 100 Ind. 280; Wagner v. Warner, 50 Iowa 532; Burrage v. Briggs, 120 Mass. 103; Glascock v. Bragg, 87 N.W. 853; Parsons v. Same, 101 Wis. 76. (2) Plaintiff having been adopted as a "child and heir at law of James Lynn, deceased," she became entiled to all the rights flowing from the relation of parent and child. Lynn v. Hockaday, 162 Mo. 127. (3) An heir at law is to be construed interchangeably with the words "children," "grand children," "descendants," or "issue." Waddell v. Waddell, 99 Mo. 345; Maguire v. Moore, 108 Mo. 267; Flanning v. Dolan, 128 Mo. 323; Buckley v. Fraser, 153 Mass. 525; Estate Wm. G. Williams, 62 Mo.App. 339; Moran v. Stewart, 122 Mo. 295; sec. 4520, R. S. 1889. (4) Plaintiff having been legally adopted as a child and heir of Jas. Lynn, that fixed her status as an heir, and she should be considered so in our Statute of Descents. Fosburgh v. Rogers, 114 Mo. 133; Ross v. Ross, 129 Mass. 266; Power v. Hafley, 85 Ky. 671; McKamie v. Baskerville, 86 Ky. 459. (5) In the statute authorizing plaintiff's adoption there are no limitations against her general right to inherit from adopter as any other natural child. Sec. 5248, R. S. 1899; In matter Chas. B. Clements, 78 Mo. 352; Fosburgh v. Rogers, 114 Mo. 133; Ross v. Ross, 129 Mass. 266; Moran v. Stewart, 122 Mo. 295, 132 Mo. 73, 173 Mo. 217; sec. 4518, R. S. 1889; In Re Estate Moran, 151 Mo. 557. (6) Lillie Hockaday having been adjudicated a child and heir of James Lynn, she thereby became to all intents and purposes a descendant of Jas. Lynn, and as such entitled to inherit from Wm. E. Lynn, deceased. Secs. 4465, 4518, R. S. 1889; Moran v. Stewart, 122 Mo. 295. (7) The Legislature had the same power to give Lillie Hockaday as an adopted child the right to inherit as to a bastard. Moore v. Moore, 169 Mo. 440; Fosburgh v. Rogers, 114 Mo. 133; Power v. Hafley, 85 Ky. 671; Virgin v. Marwick, 97 Me. 578; Warren v. Prescott, 84 Me. 483; McKamie v. Baskerville, 86 Tenn. 459; sec. 2916, R. S. 1899. (8) The following cases relied on by defendants in the court below, to-wit: Keegan v. Geraghty, 101 Ill. 26; Clarkson v. Hatton, 143 Mo. 47; Meador v. Archer, 23 A. 521; Phillips v. McConica, 59 Ohio St. 1; Estate Sunderland, 60 Iowa 732; Moore v. Moore, 35 Vt. 98; Reinders v. Koppelman, 68 Mo. 482; it is insisted will not sustain the contention of respondents in this case.

Allen Glenn for respondents.

(1) This property was not James Lynn's property; was not subject to payment of James Lynn's debts. Neither could he pass it by will, nor could he bind it by contract. Barnum v. Barnum, 119 Mo. 67; Estate Wm. G. Williams, 62 Mo.App. 350; 1 Woerner's Am. Law (2 Ed.), 140; secs. 2908, 146, R. S. 1899; Westerman v. Schmidt, 80 Mo.App. 346. (2) Adopted heir is not a bodily heir of adopting parent. Clarkson v. Hatton, 143 Mo. 59; Blodgett v. Stowell, 75 N.E. 138. (3) Nor will wife of adopter inherit from adopted child. Reinders v. Koppleman, 68 Mo. 482; Upson v. Noble, 35 Ohio St. 655; Hale v. Robbins, 53 Wis. 514; Hill v. Nye, 17 Hun 457; Isenhour v. Isenhour, 52 Ind. 328; Sharkey v. McDermott, 16 Mo.App. 80. (4) For all purposes of inheritance from the adoptive parent, the adopted child becomes and is the lawful child of such adoptive parent, save in so far as the statute authorizing the adoption may otherwise provide. Such inheritable right does not conflict with the Statute of Descents, for the statute with regard to adoption points out who are to be considered children within the meaning of the Statute of Descent. However, as against the adopted child, the statute should be strictly construed, because it is in derogation of the general law of inheritance, which is founded on natural relationship and is a rule of succession according to nature which has prevailed from time immemorial. 1 "Cyc." 931 and 32; Meier v. Buchter, 94 S.W. 883; Clarkson v. Hatton, 143 Mo. 52; Moran v. Moran, 151 Mo. 558; Moran v. Stewart, 132 Mo. 73; Fosburgh v. Rogers, 114 Mo. 122. (5) An adopted child cannot inherit from the collateral kindred of its adoptive parent, nor from the ancestors of the adoptive parents, nor from the adoptive parent's natural children. 1 Cyclopedia of Law and Procedure, 933, clause 3; VanMetre v. Sankey, 148 Ill. 536; Keegan v. Geraghty, 101 Ill. 26; In Re Sunderland Estate, 60 Iowa 732; Moore v. Moore, 35 Vt. 98; Meador v. Archer, 65 N.H. 214; Phillips v. McCornica, 59 Ohio St. 1; Quigley v. Mitchell, 41 Ohio St. 375; Barnhizel v. Ferrell, 47 Ind. 335; Helms v. Elliott, 89 Tenn. 446; 27 Am. and Eng. Ency. Law (2 Ed.), 334; 7 Ballard on Real property, sec. 169; Warren v. Prescott, 17 L. R. A. 438; Tiffany on Domestic Relations, p. 222; VanDerlyn v. Mack (Mich.), 66 L. R. A. 437. (6) Bastards inherit and transmit inheritance on part of the mother. Sec. 2916, R. S. 1899. Not so with adopted children; their rights extend wholly to the adopting parties. Sec. 5248, R. S. 1899.

OPINION

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, seized 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.]

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 conceded the truth of every averment well pleaded in the petition, hence the issue below became 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. l. c. 262; Schouler's Dom. Rel. (5 Ed.), sec. 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. Koppelmann, 68 Mo. l. c. 482 (from the leading case of Vidal v. Commagere, 13 La. Ann. 516) whereby Tiberius, being the stepson and adopted son of Augustus, his nephew, Germanicus (adopted by Tiberius on the command of Augustus Caesar), 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. DeLoach, 84 Ala. 393.]

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 the 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:

"Section 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.

"Section 186. If a man has taken a young child to sonship, and when he took him his father and mother rebelled, that...