In re Session's Estate

• Decision Date: 18 May 1888
• Citation: 38 N.W. 249,70 Mich. 297
• Parties: IN RE SESSION'S ESTATE.
• Court: Michigan Supreme Court

38 N.W. 249

70 Mich. 297

IN RE SESSION'S ESTATE.

Supreme Court of Michigan

May 18, 1888

Appeal from circuit court, Ionia county, in chancery; VERNON H SMITH, Judge.

Lemuel Clute, (B. F. Graves, of counsel,) for appellee.

CHAMPLIN, J.

This is an appeal from the judgment of the circuit court affirming an order of distribution of the probate court, by virtue of which the claimant has been determined to be the sole heir at law of Amasa Sessions, deceased, and entitled, under the provisions of his will, to the larger portion of his estate. The controversy involves the consideration of two questions First, the validity of the proceedings in the probate court of Ionia county relative to the adoption of the claimant by Amasa Sessions, and constituting her his heir ; second, the construction and interpretation of the last will of Amasa Sessions. The proceedings in the probate court were taken under and by virtue of act No. 26 of the Session Laws of 1861, which will be found in the margin. ^[1] Amasa Sessions and his wife had brought up in their family the claimant's mother. In February, 1865 she married one George W. Hendricks, and on April 30, 1866 claimant was born. In November, 1866, claimant's mother filed a bill for divorce against her husband. In her bill she alleges that her husband left her a few months after their marriage; and, when she next heard from him he was under arrest in Bureau county, Ill., for larceny, and that on the 15th day of August, 1866, he was, by the circuit court of that county, sentenced to be imprisoned and confined in the state penitentiary at Joliet, in said state, for the term of three years; one day of said term to be solitary confinement on a diet of bread and water; and the remainder of the term at hard labor. She prayed for the custody and control of their child, May Hendricks. Such proceedings were had in this suit that a divorce was decreed, and she was awarded the care, custody, and control of the infant, May Hendricks, during minority. Later, and in 1868, claimant's mother was again married to John E. Morrison, and the claimant was called and known as "May Morrison," and has ever since been known and called by that name. Amasa Sessions and his wife, Emily Sessions, being childless, took steps in 1873 to adopt the child, May Morrison, under the act aforesaid, and the following proceedings were had: On the 9th day of May, 1873, the claimant's mother, then Mary E. Morrison, together with Amasa and Emily Sessions, executed, under their hands and seals, and duly acknowledged, the following instrument: "This indenture, made the 9th day of May, 1873, between Mary E. Morrison, of the township of Berlin, in the county of Ionia, and state of Michigan, mother and surviving parent of May Hendricks, age seven years on the 30th day of April, 1873, and Amasa Sessions and Emily Sessions, his wife, of the township of Ionia, county of Ionia, and state aforesaid, witnesseth, that whereas, the said Amasa Sessions and Emily Sessions have adopted the said child, May Hendricks, with the consent of the said Mary E. Morrison; and whereas, the said Amasa Sessions and Emily Sessions desire to change the name of said child, and bestow upon her the family name, with intent to make her their heir; therefore, we, the said parties, Mary E. Morrison of the one part, and Amasa Sessions and Emily Sessions of the other part, do declare that the said child, May Hendricks, is adopted as the child of the said Amasa Sessions and Emily Sessions; and that said Amasa Sessions and Emily Sessions intend to make such child their heir, and that she shall bear the name of May Sessions. Witness our hands and seals, at Ionia, Mich., this day and year first above written. MARY E. MORRISON. [L. S.] AMASA SESSIONS. [L. S.] EMILY SESSIONS. [L. S.]" This instrument was duly acknowledged.

This instrument was presented to the judge of probate of Ionia county, and thereupon the following order was entered in the journal of said court: " State of Michigan, County of Ionia-ss.: At a session of the probate court for the county of Ionia held at the probate office in the city of Ionia on Monday, the 12th day of May, in the year 1873, present, WILLIAM H. WOODWORTH, judge of probate. In the matter of the adoption of May Hendricks by Amasa and Emily Sessions, and changing her name to May Sessions. Upon reading and filing in this court the declaration of Amasa Sessions and Emily Sessions, his wife, of Ionia, Mich., duly signed, sealed, and acknowledged, thereby declaring that they have adopted a child, May Hendricks, of the age of seven years, the child of Mary E. Morrison, of Berlin, in said county of Ionia, parent of said child now surviving, by and with the consent of the said Mary E. Morrison, duly signed, sealed, and acknowledged by her, and filed in this court, with the intent to make said May Hendricks the heir at law of said Amasa Sessions and Emily Sessions, and desiring that said May Hendricks may hereafter, as such adopted child, bear their family name, and be called May Sessions, and it satisfactorily appearing to the court of the good faith of these proceedings, and that the said Amasa Sessions and Emily Sessions are suitable persons to have charge of said child: therefore it is ordered that said Amasa Sessions and Emily Sessions do hereafter stand as parents to said child, and that the name of said child may be called May Sessions, and that said Amasa Sessions and Emily Sessions shall be liable for all the duties, and entitled to all the rights, of parents of said minor child, and that said child, May Sessions, become the heir at law of said Amasa Sessions and Emily Sessions, the same as if she was indeed their own child." The probate journal showed that the order of adoption, and another order following it, constituted the proceedings of the day, as entered in the journal, the last order being duly signed; but the order of adoption, which preceded it, was not signed by the judge of probate, except as his signature to the proceedings of the day embraced all entered that day. May resided in the family until the death of Emily Sessions, which occurred July 6, 1873. This broke up the family, and Mr. Sessions went to live with his nephew Henry C. Sessions, and May returned to her mother, Mrs. Morrison. In 1875, Amasa Sessions was married again to Elizabeth E. Tubbs. May Morrison never lived in the family of Mr. Sessions after the death of Emily Sessions. On the 2d day of February, 1874, application was made to the same judge of probate who had made the order adopting the child, for a revocation of said order; and the following journal entry was made: "At a session of said court held at the court-rooms in the city of Ionia, in said county of Ionia, on the 2d day of February, A. D. 1874, present, Hon. WM. M. WOODWORTH, probate judge. In the matter of May Sessions, a minor child of Mary E. Morrison, heretofore, to-wit, on the 9th day of May, 1873, adopted by Amasa Sessions and Emily Sessions, as more fully appears by the records, heretofore, to-wit, on the 12th day of May, entered in this court in this behalf. Now comes Amasa Sessions and Mary E. Morrison, by their petition duly signed, sealed, and verified by their said oaths, setting forth, among other things, that on the 9th day of May, 1873, said petitioners, with Emily Sessions, wife of Amasa Sessions, entered into an indenture, after praying the judge of probate to enter an order changing the name of the daughter of Mary E. Morrison, to-wit, May Hendricks, to May Sessions, and to constitute her heir at law of Amasa Sessions and Emily Sessions, which order was granted, and that afterwards, to-wit, on the 6th day of July, 1873, Emily Sessions, wife of Amasa Sessions, died, and in consequence thereof said Amasa Sessions is unable to have the control and custody of said child, and praying that said order changing the name of May Hendricks to May Sessions, and constituting her heir at law of Amasa and Emily Sessions, may be set aside and held for naught; and after maturely considering the proofs and allegations of the petitioners, and it satisfactorily appearing to the court that the facts set forth in said petition are true, and that the prayer of said petition in that behalf ought to be granted, it is hereby ordered, adjudged, and decreed that the order of this court, heretofore entered in this behalf, to-wit, on Monday, the 12th day of May last past, is hereby revoked, set aside, and shall be held for naught. WILLIAM H. WOODWORTH, Judge of Probate."

On the 15th day of July, 1879, Amasa Sessions made his last will, in which, after making bequests to his wife, sister, and nephew is the following: "(4) After all the above-mentioned legacies have been fulfilled, I give and bequeath the remainder of my estate to my lawful heirs." Amasa Sessions died in 1886. He was childless, and left surviving him his wife, Elizabeth; his brothers Job S., John, and Alonzo; his sister, Elizabeth P. Arthur, and James M. Yates, and the children of his deceased brothers, George and Darius, and of his deceased sister, Sila, who claim under the will as his heirs. May Morrison also...