Leeper v. Leeper

• Decision Date: 14 February 1941
• Docket Number: 37082
• Citation: 147 S.W.2d 660,347 Mo. 442
• Parties: Fred 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
• Court: Missouri Supreme Court

147 S.W.2d 660

347 Mo. 442

Fred 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

No. 37082

Supreme Court of Missouri

February 14, 1941

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Reported at 347 Mo. 442 at 452.

Original Opinion of February 14, 1941, Reported at 347 Mo. 442.

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

OPINION

DALTON

On Motion for Rehearing.

Respondent Marvin W. Leeper insists that the opinion is directly in conflict with St. Louis Union Trust Company v. Hill, 336 Mo. 17 (En Banc), 76 S.W.2d 685, and Brock v. Dorman, 339 Mo. 611, 98 S.W.2d 673. He contends that his rights are determined by the law at the date of his adoption and not at the date of the execution of the deed; that a contingent remainder was created by the deed and he was within the classification of those designated to take at the death of the life tenant; that the word "children" included adopted children; and that the old adoption statute has been superceded by the new statute which is controlling. He insists that, since by his adoption in 1934 he became the child of William F. Leeper and wife, as fully as though born to them in lawful wedlock, William F. Leeper could not and did not "die without children." Most of these matters were fully discussed in the opinion, but the cases mentioned were not discussed, since they were not applicable to the facts before us.

The first case involved the construction of a will executed April 4, 1918. Testator died September 5, 1918. Both dates subsequent to the enactment in 1917 of our present adoption statutes, Secs. 14073-14081, Mo. Stat. Ann., pp. 822-828. In stating the consequences of adoption, Sec. 14079 provides: "Said child shall thereafter be deemed and held to be for every purpose, the child of its parent or parents by adoption, as fully as though born to them in lawful wedlock. Said child shall be entitled to proper support, nurture and care from said parents by adoption, and shall be capable of inheriting from, and as the child of said parents as fully as though born to them in lawful wedlock." An exception is provided where property is expressly limited to heirs of the body.

By the will under consideration in the case of St. Louis Union Trust Company v. Hill, supra, testator left a life estate in equal shares to all his children, with remainder to their heirs at law.

In 1929, testator's son, Frank W. Hill, Jr., and his wife, by decree of court under said statutes, adopted two children. Frank W. Hill, Jr., died shortly thereafter. The adopted children claimed as heirs at law of Frank W. Hill, Jr., and as such claimed to be entitled to take as remaindermen of Frank W. Hill, Jr., under the will of Frank W. Hill, Sr. The sisters of Frank W. Hill, Jr., claimed that their father intended by his will to limit remaindermen under the will to the heirs of his blood and not to strangers. The court said (336 Mo. 17, 76 S.W.2d 685, 687): "As to whether the appellants (the adopted sons of Frank W. Hill, Jr.), were his heirs at law at the time of his death depends upon the Statutes of Descent and Distribution in force and effect at the time of his death, and the statutes on adoption that were in force at the time the appellants were adopted by Frank W. Hill, Jr. . . . These appellants were made the heirs at law of Frank W. Hill, Jr., not by contract but by complying with the adoption statutes. . . . By decree of court they were declared to be his adopted children, and it must follow that they were the heirs at law of their adopting father. . . . This will was executed April 4, 1918, and at that time the testator is presumed to have known the adoption statutes now in force and effect as passed by the 1917 Legislature." (Italics ours.)

The court then reviewed in detail the 1917 adoption statutes and reached the conclusion that appellants (the adopted children) were entitled to take unless by the will the property was expressly limited to the heirs of the body of Frank W. Hill, Jr. The court then said: "With this definition (of 'expressly' a term used in Sec. 14079) in mind we find nothing in the will that shows that the testator intended to leave his property to the heirs of the body of Frank W. Hill, Jr. We believe under the facts in this case the appellants would have been included, even if the words 'heirs at law' were used interchangeably with the word 'child' or 'grandchild.' . . . If he (testator) did not want an adopted child to have any of his property he could have easily provided for such a contingency in his will by expressly limiting his property to go to the bodily heirs of his son, but he did not do so."

The case is not applicable here, since at the time the deed was written in 1900 there was no such adoption statute. Section 5248, R. S. 1899, was then in force and effect. It contained no such provisions, but only gave the adopted child "rights and privileges as against the persons executing the deed of adoption." Provision was made for one "to adopt any child or children as his or her heir," but the child so adopted remained the child of its natural parents. [Sec. 5246, R. S. 1899; Hockaday v. Lynn, 200 Mo. 456, 473, 98 S.W. 585.]

William Leeper is, of course, presumed to have known the adoption statutes as in force and effect at the time the deed was written, and to have prepared the deed accordingly. The word "children" was not used in the deed in the light of a statute making an adopted child the child "for every purpose" of its adopting parents, but in the light of a statute which only gave the adopted child the rights of a child against its adopting parents, while at the same time leaving such adopted child the child of its natural parents. An adopted child, under the law of this State at the time the deed was written, only stood "in the same relation of heirship to the estate possessed by the adopting parent at the time of his or her death, that a natural and lawfully born child would occupy under similar circumstances" (Williams v. Rollins, 271 Mo. 150, 195 S.W. 1009), but such child remained the child of its natural parents. The word "children" as used in the deed did not include adopted children and William F. Leeper died "without children," as that word was used in the deed.

Although this court in the case of St. Louis Union Trust Company v. Hill, supra, held that under the 1917 adoption statute "the adopted child is taken out of the blood stream of its natural parents and placed by the operation of law in the blood stream of its adopting parents," and, although respondent, Marvin W. Leeper, under the present adoption statute, was, after 1934, a child of William F. Leeper and wife as fully as if born to them in lawful wedlock, and, although as such adopted child he was entitled to inherit from them and through them, as "a child" and as "an heir," he was not a child of William F. Leeper within the meaning of the word "children" as that word was used in the deed written in 1900. The court in the Hill case did not, and we find no decision of this court that does, undertake to take the present meaning of the word "children" as now used in deeds written subsequent to the enactment of the 1917 adoption statutes, and to make such meaning applicable to the word "children" as used in a deed written prior to that act when, under the law then in force, the word "children" did not mean, or include adopted children.

By determining the meaning of the word "children," we determine whether the "heirs" of William F. Leeper took upon his death or whether "his full brothers and their heirs" took the...