Keegan v. Geraghty

• Decision Date: 10 November 1881
• Parties: MARY ANN KEEGANv.PETER GERAGHTY et al.
• Court: Illinois Supreme Court

101 Ill. 26

1881 WL 10683 (Ill.)

MARY ANN KEEGAN

v.PETER GERAGHTY et al.

Supreme Court of Illinois.

Filed at Ottawa Nov. 10, 1881.

WRIT OF ERROR to the Appellate Court for the First District;-- heard in that court on appeal from the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

Mr. WILLIAM G. MCMILLAN, for the plaintiff in error:

That courts will recognize and enforce rights derived under foreign laws, when not in contravention with the laws of their own State, counsel cited Bouvier's Law Dic. title “Comity;” Roundtree v. Baker, 52 Ill. 241; Story's Conflict of Laws, chap. 8.

The validity of a marriage is governed by the lex loci contractu, and by it the status of the husband and wife, and the legitimacy of the children, are determined. McDeed v. McDeed, 67 Ill. 545; Clark v. Clark, 8 Cush. 385; Phillips v. Gregg, 10 Watts, 158; Wall v. Williams, 11 Ala. 826; Patterson v. Gaines, 6 How. 550; Fourshill v. Murray, 1 Bland's Ch. 479; Dumaresby v. Fishly, 3 A. K. Marshall, 366; Lacon v. Higgins, 3 Stark. 178; Ryan v. Ryan, 1 Phil. Ecc. 332; Herbert v. Herbert, 2 Hagg. Ecc. 263; Scrimshire v. Scrimshire, 2 Hagg. Consist. 412; Midway v. Needham, 16 Mass. 157; Dannelli v. Dannelli, 4 Bush, 51; 1 Bishop's Marriage and Divorce, sec. 355; Story's Conflict of Laws, chap. 5.

That the marriage of the parents after the birth of an illegitimate child in a State or country where the marriage does not legitimatize the child, will not make it legitimate, and capable of inheriting in another State or county where such a marriage would have legitimatized the child, counsel cited Shedden v. Patrick, 1 Macg. 622; 4 Wils. & Sh. App. 89; Strathmore Peerage case, 9 Bligh, 51; Munroe v. Saunders, 6 Id. 468; Ross v. Ross, 4 Wils. & Sh. 289; Dalhousie v. McDonall, 7 Cl. & Fin. 817; Munro v. Munro, Id. 842; Bertwhistle v. Vardill, 9 Bligh, 32; 2 Cl. & Fin. 571; 7 Id. 895; Scott v. Key, 11 La. Ann. 232; Smith v. Kelly's Heirs, 23 Miss. 167.

As to the effect of the adoption of a child in another State, and the right of such child to take by inheritance, counsel cited Ross v. Ross, 129 Mass. 243.

The adoption statute of Illinois was taken from that of Massachusetts, and the construction given to it in the latter State should be adopted here. Gage v. Smith, 79 Ill. 219; Campbell v. Quinlin, 3 Scam. 238.

Mr. GEO. W. SMITH, also for the plaintiff in error. Messrs. CROWLEY & MAXWELL, also for the plaintiff in error:

When Illinois and Wisconsin adopted the Massachusetts statute, they also adopted, to a certain extent, the construction of that statute by the Massachusetts court.

If Michael R. Keegan had died intestate, his estate must have descended in equal shares upon Mary Gertrude Keegan and upon the plaintiff. The rights of the latter are the same as if she had been adopted under the laws of the State of Illinois. Illinois Stat. of Descents; Ross v. Ross, 129 Mass. 243.

The plain, natural meaning of the statute of adoption is, that the adopted child becomes entitled to all the rights of a lawfully begotten child, not only as between herself and her adopting parents, but also as between herself and her parents' lineal descendants, from whom she will take directly, and not by right of representation.

Reference must be had to the statutes of legitimacy, of half blood, the alien laws, and to the statute of adoption, for the correct definition of the word ““sister,” or the words “descendants of such parents,” in the Statute of Descents. Ross v. Ross, 129 Mass. 266; Rowley v. Strong, 32 Mich. 70. See, also, Sewell v. Roberts, 115 Mass. 262.

Under a Massachusetts statute, which provides that a child, or the issue of a deceased child, unintentionally omitted in the will of the father or grandfather, shall take the same share as though the father died intestate, it seems that an adopted child has all the rights of lawful issue. Bowdlear v. Bowdlear, 112 Mass. 184. See, also, Loring v. Thorndike, 5 Allen, 263.

Mr. ROBERT HERVEY, for defendant in error Peter Geraghty:

The doctrine of comity is not carried so far as to conflict with and abrogate the positive laws of another State.

The legislature of the State of Wisconsin can not confer any right of inheritance by the person adopted under its enactments, to property in the State of Illinois, even if this State had no law on the subject of adoption.

But there is a law of adoption in this State, by which the rights of adopted children are defined and settled. Such being the case, claimants to property in this State (as adopted children) must bring themselves within, and are necessarily in all things bound by, its provisions.

The legislature of this State has exercised its sovereign right in providing for the descent of property. Can a foreign State legislature legislate for the mode of descent of property in this State at all, under any circumstances? The plaintiff has no such status under the Wisconsin proceeding as will give her a right to inherit property in this State in direct opposition to our State laws.

The cases cited in relation to marriage and the status of married persons have no analogy to the case at bar. The marriage relation is sui generis, and is not the creature of any statute, while the adoption of children is purely a creature of the statute, no such thing being known to the common law.

The case of Ross v. Ross, 129 Mass. 243, is relied on by the plaintiff, but that case is different from this, where the father left no estate to distribute. The Massachusetts courts could not have held that an adopted child could inherit from a devisee, as a sister, for two reasons:

1. Because she is not a sister, which in law means a sister of the whole or half blood. See Schafer v. Euen, 54 Pa. St. 304; Commonwealth v. Nancrede, 8 Casey, 389; Bouvier's Law Dic. title, “Sister.”

2. Because the adopting parent had left no property for the law to distribute, but had devised the whole to the child of his body, and the statute of Massachusetts, like ours, prohibits inheritance by adopted children collaterally.

In Barnhizel v. Ferrell, 47 Ind. 325, the court say: “Our statute contains no provision on the subject of the rights of the lawful and adopted children as between themselves.” The plaintiff if she could inherit at all, must be by representation, which the statute prohibits.

Mr. WM. W. FARWELL, also for the defendants in error:

1. Mary G. Keegan being a resident of this State when she died intestate, our statute of descent must control as to the descent of her property.

2. Adopted children are not recognized by the common law as children of the adopting parent.

3. The new rights acquired and the new obligations assumed by reason of such adoption, will not be recognized or enforced in any other State, except so far as they are consistent with its own laws and policy.

4. The word “child” and the word “sister,” as used in our statute of descents, are to be taken to mean what they ordinarily mean under our laws and according to our language.

5. No new meaning is given to the word child or sister by reason of the statute of adoption. A child adopted under the statute is allowed to claim as a child, by reason of the provisions in that statute, which has been taken into account in applying the statute of descent. The language of the statute of descent is general, while the statute of adoption contains a provision which amounts to a special exception in certain cases. The latter must control as to all cases specially excepted, but the general act must be given effect in all other cases. Litchfield Coal Co. v. Taylor, 81 Ill. 590; Town of Ottawa v. Town of LaSalle, 12 Id. 339; Potter's Dwarris on Statutes, 273.

6. The Illinois statute of adoption does not give the adopted child any right to inherit from the kindred of the adoptive parent. Mr. JUSTICE SHELDON delivered the opinion of the Court:

Michael R. Keegan, and his wife, Margaret, resided many years in Columbia county, Wisconsin. They had no children, but in 1862 adopted Mary Ann Keenan, the plaintiff in error, as their daughter, pursuant to the provisions of chap. 49, of the Revised Statutes of Wisconsin of 1858. In 1869, Keegan and his wife removed from Wisconsin to Chicago, in this State, and about this time Mary Ann, being then of lawful age, went to Boston, Mass., where she has ever since resided. Margaret Keegan died in 1874, and Michael R. Keegan not long afterwards married Bedelia M. Geraghty, daughter of Peter Geraghty, one of defendants in error. As the issue of this marriage, Mary Gertrude Keegan was born, in 1875. The mother died in July, 1879. The father, Michael R. Keegan, died in the November following, seized of real estate in this State, leaving his last will, by which he gave all his property to this child, Mary Gertrude Keegan. In December following she died, leaving no brother or sister, and no grandparents except said Peter Geraghty, who was declared by the probate court in Cook county, Illinois, in the adjudication of heirship, to be her next of kin and sole heir at law. Mary Ann, the plaintiff in error, petitioned the probate court to have that order vacated, claiming that by virtue of the adoption proceedings of Wisconsin she became the child of Michael R. Keegan, and consequently was the half-sister of Mary Gertrude Keegan, and as such half-sister is now her sole heir, according to our statute of descent. The probate court found against her. She appealed to the circuit court of Cook county, and that court found against her, from which decision she appealed to the Appellate Court for the First District, which court affirmed the judgment, and she now brings the record here by writ of error.

As Mary Gertrude Keegan was a resident of this State, and died here, intestate, our statute of descent must control as to the descent of her real property situated in this State. Under that statute, in order to take, the petitioner must take as the heir at law of Mary Gertrude Keegan, and as her...