Leeper v. Leeper

Decision Date14 February 1941
Docket Number37082
PartiesFred Leeper, Hiram Leeper, and Clarence R. Leeper, Appellants, v. Marvin W. Leeper, Roberta Leeper, his wife, Mary Leeper, widow of William F. Leeper, A. Heidtbrink, Lee Heidtbrink, and Orville Lowrance
CourtMissouri Supreme Court

Rehearing Granted, Reported 347 Mo. 442 at 452.

Appeal from Nodaway Circuit Court; Hon. Ellis Beavers Judge.

Reversed and remanded (with directions).

Ernest Neill, A. F. Harvey and Wright & Ford for appellants.

(1) The intention of the grantor controls. Triplett v Triplett, 332 Mo. 870, 60 S.W.2d 13. (2) The conditions existing at the time of making the deed and all other pertinent circumstances may be considered. Mooney v. Tolles, 70 A. L. R. 608, 149 A. 515. (3) Blood relatives are favorites of the law and are given preference in the construction of doubtful provisions in deeds and wills. Coleman v. Haworth, 320 Mo. 852, 8 S.W.2d 931; Casper v. Helvie, 83 Ind.App. 166, 146 N.E. 123; Melek v. Curators, etc., 213 Mo.App. 572, 250 S.W. 614. (4) The deed to William J. Leeper executed at the same time as the deed to William F. conveyed lands to him for life, then to his heirs. As William J. had natural children at the time, it is manifest that heirs as used in both deeds meant natural children. Greenleaf v. Greenleaf, 58 S.W.2d 450. (5) The presumption is that an adopted child of a donee is not included as a beneficiary of the bounty of the donor, the donor being a stranger to the adoption. Middletown Trust Co. v. Gaffey, 96 Conn. 71, 112 A. 689; In re Leask, 197 N.Y. 193, 90 N.E. 652. (6) The presumption is that an adopted child is not included in the term "children" if the statute limits the right to inherit from the adopting parents only, as the statute in force in 1900 did. Sec. 1673, R. S. 1909; 27 L. R. A. (N. S.) 1159. (7) Deeds are construed according to the law in force at the time they are executed. A subsequent change in the law does not change the effect or meaning of the deed. 18 C. J. 251; Frame v. Humphreys, 164 Mo. 346; Rickman v. Hoppin, 45 F.2d 737; Stewart v. Fox, 129 Me. 407, 152 A. 413. (8) The presumption is well nigh conclusive that an adopted child was not intended to take under a deed, where a father deeds lands to a son for life and then to the children of the son, if the adoption takes place long after the making of the deed and the death of the grantor. Wildman's Appeal, 151 A. 265; Puterbaugh's Est., 261 Pa. 235, 104 A. 601, 5 A. L. R. 1277; Lichter v. Thiers, 139 Wis. 481, 121 N.W. 153; Casper v. Helvie, 83 Ind.App. 166, 146 N.E. 123; Smith v. Thomas, 317 Ill. 150, 147 N.E. 790. (9) The deed in question was executed when Judge Leeper was over eighty years of age. It was a gift and he disposed of his estate by gift during his life instead of by will. It is clear he wanted to preserve the corpus of his estate for his grandchildren. His sons had no power of direct disposition. What they could not do directly by deed of conveyance, they could not do by deed of adoption. Reinders v. Koppelman, 94 Mo. 338; Clarkson v. Hatton, 143 Mo. 47; Hockaday v. Lynn, 200 Mo. 456; Melek v. Curators, 213 Mo.App. 572, 250 S.W. 614.

Livengood & Weightman for respondents.

(1) The Legislature has the power to create and take away rights of inheritance, succession to estates and in the exercise thereof, it can confer the right of inheritance upon adopted children or adopting parents or both. Shepherd v. Murphy, 61 S.W.2d 747; St. Louis Union Trust Co. v. Hill, 76 S.W.2d 689; Sewall v. Roberts, 115 Mass. 262; Gilliam v. Guaranty Trust Co., 78 N.E. 697; Warren v. Prescott, 17 L. R. A. 439. (a) This the Legislature of Missouri has done by enacting what are known as the statutes of descent and distribution. These statutes are now the same as they were written in their original form prior to 1900. Secs. 562, 3110, R. S. 1929. (b) It is as competent for the Legislature to place a child by adoption in the direct line of descent as for the common law to place a child by birth therein. Warren v. Prescott, 17 L. R. A. 439. This the Missouri Legislature has done by first enacting the adoption by deed statute, and later in 1917 by enacting what is now Section 14079, which gives the adopted child the status of "child" for all purposes. Gilliam v. Guaranty Trust Co., 78 N.E. 700; Smith v. Hunter, 86 Ohio St. 106, 99 N.E. 93. (2) Respondent is an "Heir" of Frank Leeper, because he is a legally adopted child of Frank Leeper. The "Heirs" of Frank Leeper include an adopted child under the statutes of Descent and Distribution in force at the time the deed was made and, even under the Adoption Act then in force, the words "heir" and "child" were construed to include an adopted child. In re Cupples Estate, 272 Mo. 465, 199 S.W. 556; Brock v. Dorman, 98 S.W.2d 673; Fosburgh v. Rogers, 114 Mo. 122; Bernero v. Goodwin, 267 Mo. 427, 184 S.W. 74; Moran v. Stewart, 122 Mo. 295; Williams v. Rollins, 195 S.W. 1009, 271 Mo. 50; Rauch v. Metz, 212 S.W. 357. (3) Under the adoption statute passed in 1917, by which respondent's rights are determined, he became a child for every purpose and he was, by operation of law, taken out of the blood stream of his natural parents and placed in the blood stream of his adopting parents. This is true, although the words "heirs" and "child or children" are used interchangeably in the deed of the grantor. Sec. 14079, R. S. 1929; St. Louis Union Trust Co. v. Hill, 76 S.W.2d 689; Shepherd v. Murphy, 332 Mo. 1178, 61 S.W.2d 748; Brock v. Dorman, 98 S.W.2d 672; 2 Mo. Law Review, No. 3, June 1937 (Limbaugh). (a) In other jurisdictions, under statutes of adoption in force similar to our 1917 statute, it has been generally held that the adopted child is a child within the meaning of a will or deed, and this is true although the words "child" or "children," "heirs," "heirs at law," "lawful heirs," and "lawful issue" may have been used to designate the class upon whom the remainder is cast. Warren v. Prescott, 84 Me. 487; 24 A. 949, 17 L. R. A. 435, 30 Am. St. Rep. 370; Vergin v. Marwick, 97 Me. 578, 55 A. 520; In re Olney, 27 R. I. 495, 63 A. 956; Hartwell v. Tefft, 19 R. I. 644, 35 A. 882, 34 L. R. A. 500; In re Truman, 61 A. 598; Bray v. Miles, 23 Ind.App. 432, 54 N.E. 446; In re Holdens Trust, 291 N.W. 104; Smith v. Hunter, 99 N.E. 91; In re Sandon's Will, 101 N.W. 1089; Butterfield v. Sawyer, 187 Inn. 598, 58 N.E. 602; Sewall v. Roberts, 115 Mass. 262; Youngs v. Stearns, 234 Mass. 540, 8 A. L. R. 1010; Tirrell v. Bacon, 3 F. 62; Gilliam v. Guar. Trust Co., 78 N.E. 697; Ultz v. Upham, 143 N.W. 66; 9 Ill. Law Review, No. 3 (Kales) 1914, pp. 1-174 (4) The respondent Marvin Leeper's rights are determined by the adoption statute in effect at the time of his adoption, and at the time of the termination of the life estate, notwithstanding the statute was passed after the deed was executed and after the death of grantor. St. Louis Union Trust Co. v. Hill, 76 S.W.2d 687; Brock v. Dorman, 98 S.W.2d 673; Sewall v. Roberts, 115 Mass. 262; In re Olney, 27 R. I. 495, 63 A. 956; Hartwell v. Tefft, 19 R. I. 644, 35 A. 882, 34 L. R. A. 500; Vergin v. Marwick, 97 Me. 578, 55 A. 520; Smith v. Hunter, 99 N.E. 91; Gilliam v. Guar. Trust Co., 186 N.Y. 127; 116 Am. St. Rep. 536, 78 N.E. 697; 69 C. J. 50, sec 1116; Holmes v. Alexander, 82 N.H. 390, 134 A. 536; New York Ins. Co. v. Winthrop, 213 N.Y. 168, 31 A. L. R. 799. (a) By the deed of William Leeper to Frank Leeper, a life estate only was created in Frank Leeper with remainder to his heirs or children. Those who take the remainder are those whom the law designates as the remaindermen upon the termination of the life estate. Secs. 562, 3110, R. S. 1929. Section 3110, Revised Statutes 1929 was in full force and effect in 1900 when the deed was made. It appeared as Section 4599, in the 1899 Revision. Therefore the grantor William Leeper is presumed to have known that the heirs and children of the life tenant could not be determined until the death of the life tenant. (5) William Leeper's deed is construed solely by its own terms and his intention as the grantor must be determined from what the deed says and not by what we might imagine the grantor intended to say or would have said if he had decided to further explain his intention. Gardner v. Van Landingham, 9 S.W.2d 949; St. Louis Union Trust Co. v. Hill, 76 S.W.2d 686; Brock v. Dorman, 98 S.W.2d 675; Butterfield v. Sawyers, 58 N.E. 604.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION
DALTON

This action involves title to real estate in Nodaway County. The petition is in three counts, to-wit; ejectment, quiet title, and partition. The issue of title is presented in each count. Defendant Marvin W. Leeper answered, claimed title and filed a cross-action to quiet and determine title. Other defendants answered and denied generally. Evidence was taken on all counts, and on the cross-action, in one hearing before the court. The court found against plaintiffs on the first and third counts, and quieted title on the second count, and on the cross-action, in Marvin W. Leeper. Plaintiffs have appealed.

No question is raised as to the pleadings. The facts are not in dispute. The issue of title turns upon the construction of a deed. William Leeper is the common source of title. He was a resident of Nodaway County and was twice married. He had five children by a first wife and four by his second wife. He died in 1904. William F. Leeper was a son by his last marriage. Appellants are the three surviving full brothers of William F. Leeper.

On January 19, 1900, William Leeper and his wife, in consideration of love and affection and the further consideration of $ 1.00 executed and delivered a warranty deed conveying the real estate in question "to William F. Leeper, during his...

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