Marshall v. Marshall

• Decision Date: 01 November 1941
• Citation: 156 S.W.2d 449,25 Tenn.App. 309
• Parties: MARSHALL v. MARSHALL.
• Court: Tennessee Court of Appeals

156 S.W.2d 449

25 Tenn.App. 309

MARSHALL v. MARSHALL.

Court of Appeals of Tennessee, Middle Section.

November 1, 1941

Certiorari Denied by Supreme Court December 13, 1941.

Appeal from Chancery Court, Davidson County; William J. Wade Chancellor.

Suit by Georgia E. Marshall, individually and as administratrix with the will annexed of R. D. Marshall, deceased, against Katherine Cartwright Marshall for construction of the will of R. D. Marshall, deceased, and for a determination of the rights of the plaintiff and of the adopted child of the plaintiff and R. D. Marshall, deceased. From an adverse decree, the defendant appeals.

Affirmed.

William A. Guild, of Nashville, for plaintiff in error.

Bass Berry & Sims and J. O. Bass, all of Nashville, for defendant in error.

FELTS Judge.

Georgia E. Marshall, widow and administratrix with the will annexed of R. D. Marshall, deceased, filed the bill herein for a construction of his will and a determination of the rights of herself and their adopted child, Katherine Cartwright Marshall, in his estate.

Mr. and Mrs. Marshall were childless. In January 1937, they took this child from the Tennessee Children's Home Society, under a written agreement to adopt her at the end of a trial period of one year. They kept and cared for her as their own child until February 21, 1938, when they adopted her by decree of the county court of Davidson County. This decree adjudged "*** that petitioners (Mr. and Mrs. Marshall) be given the full right to the parental care, custody, and possession of said child; that from this date said child, to all legal intents and purposes, be adopted by petitioners as their own, and vested, to all legal intents and purposes, with the right of succession and inheritance, as if born to petitioners; and that said child bear the name of Katherine Cartwright Marshall, and be so known and designated, with the right to sue and be sued in said name."

They continued to keep and treat her as their own child until Mr. Marshall died, May 29, 1941, and she has since remained with Mrs. Marshall. She is now fourteen years of age. On February 19, 1938, two days before the adoption, Mr. Marshall made a will as follows:

"February 19, 1938

I leave to my wife Georgia E. Marshall all of my property both real and personal.

R. D. Marshall."

He kept this will until his death, without changing it, or making any provision for the adopted child. It was probated as a holographic will; and Mrs. Marshall qualified as administratrix with the will annexed. The estate consists of a small amount of cash, an automobile, a farm in Davidson County, and some farm equipment. The farm and equipment are encumbered by a deed of trust executed by Mr. and Mrs. Marshall to secure his debts, which are in excess of $12,000. He had $7,500 insurance on his life, payable to Mrs. Marshall, and they had also assigned that to secure his debts. The record does not show the value of the farm or equipment, or what will be the net value of the estate.

The theory of the bill was that defendant, being an adopted child, could not share in the estate as an after-born pretermitted child, and that the will disinherited her and gave all the property to complainant. Defendant and her guardian ad litem filed formal answers, submitting her rights to the protection of the court. The chancellor sustained both contentions of complainant, and decreed that she took the entire estate remaining after paying the debts.

The guardian ad litem appealed. He insists that the adoption of the child by Mr. Marshall after making this will so far revoked the will that the child shares in his estate as if he had died intestate. The argument is that an after-adopted child stands on the same footing as an after-born child under Code section 8131. This section is: "A child born after the making of a will, either before or after the death of the testator, inclusive of a mother-testator, not provided for nor disinherited, but only pretermitted, in such will, and not provided for by settlement made by the testator in his lifetime, shall succeed to the same portion of the testator's estate as if he had died intestate. (1823, ch. 28, sec. 1, Modified.)"

For appellee it is contended that this section by its very terms is restricted to children "born," and cannot be extended to children adopted, after the making of a will. Such would undoubtedly be its meaning, if it stood to be interpreted alone and by itself. Also it may be conceded that when the original act of 1823, the prototype of section 8131, was passed it could not include a child adopted as well as "a child born"; for there was then no provision of law in this State for the adoption of children. The first provision for adoption of children was Chapter 338, Acts of 1851-52. But both of these provisions, that for after-born pretermitted children and that for adoption of children, were brought forward in the Code of 1858 (secs.

2193 , 2194 and 3636, 3643-3645) and later in the Code of 1932 (secs. 8131, 8132 and 9561, 9568-9570). Upon their reenactment as parts of the Code, which was a single legislative act, these separate provisions became related and should be interpreted as parts of this act. McMinnville & Man. R. R. Co. v. Huggins, 7 Cold. 217, 47 Tenn. 217, 229; Whitworth v. Hager, 124 Tenn. 355, 360, 140 S.W. 205, 206; Sharp v. C., N. O. & T. P. Ry. Co., 133 Tenn. 1, 16, 179 S.W. 375, 379, Ann.Cas. 1917C, 1212; Faulkner v. City of Nashville, 154 Tenn. 145, 156, 285 S.W. 39, 42; Chumbley v. People's Bank & Trust Co., 166 Tenn. 35, 42, 60 S.W.2d 164, 166. The statutes of adoption and of descent and distribution must be read together. Meriwether v. Fourth & First B. & T. Co., 153 Tenn. 696, 698, 285 S.W. 34, 35. Also these statutes and sections 8131 and 8132 are in pari materia and must be read and construed together as one system. In re Book's Will, 90 N.J. Eq. 549, 553, 107 A. 435, 437.

Code section 9568 provides that any person wishing to adopt another as his child shall apply by petition, signed by the applicant, setting forth the reasons therefor, and the terms of the proposed adoption. Section 9569 provides that the court (circuit, probate or county), if satisfied with the reasons given, may sanction the adoption by decree, entered on the minutes, embodying the petition, and directing the terms of the adoption. Section 9570 is as follows: "The effect of such adoption, unless expressly limited by the judgment or decree, is to confer upon the person adopted, all the privileges of a legitimate child of the applicant, with capacity to inherit and succeed to the real and personal estate of such applicant, as heir and next of kin; but it gives to the person seeking the adoption no reciprocal rights of inheritance and succession, nor any interest whatever in the estate of the person adopted. (Ib., Modified.)" (1851-52, ch. 338, sec. 2.)

Learned counsel insist that statutes of adoption, being in derogation of the common law, are to be strictly construed against the adopted child; that though our statutes do confer upon an adopted child all the privileges of inheritance and succession which a legitimate child of the adopting parent would have in case of the parent's intestacy, they do not confer upon the adopted child the additional right which section 8131 confers upon an after-born pretermitted child; and that this section should be construed to embrace only children "born," and not children adopted, after the making of a will.

It is true the general rule is that statutes of adoption are to be strictly construed against the adopted child. Magevney v. Karsch, 167 Tenn. 32, 45, 65 S.W.2d 562, 567, 92 A.L.R. 343, 352, and cases there cited. But this rule of strict construction has been applied only in cases involving the right of the adopted child to inherit from relatives of the adopting parent. It has been held that such child does not inherit from the father, the child or the collateral relatives of the adopting parent. Helms, Adm'r, v. Elliott, 89 Tenn. 446, 14 S.W. 930, 10 L.R.A. 535; Taylor v. Taylor, 162 Tenn. 482, 40 S.W.2d 393; Buntin et al. v. Plummer et al., 164 Tenn. 87, 91, 46 S.W.2d 60, 61. But so far as the right of an adopted child to inherit from the adopting parent is concerned, construction has been liberal rather than strict. It has been held that an adopted child takes as "issue" of the adopting parent, under Code section 8134, providing that a devise or legacy shall not lapse by reason of the death of the devisee or legatee before the death of the testator, but shall go to the "issue" of such devisee or legatee (Craft v. Blass, 8 Tenn.App. 498); and that the children of a deceased adopted son inherit from his adopting mother. Meriwether v. Fourth & First B. & T. Co., 153 Tenn. 696, 285 S.W. 84; Buntin et al. v. Plummer et al., supra. In Helms, Adm'r, v. Elliott, supra, the court said:

"As between the adopting parent and the adopted child the statute declares in the plainest terms that the adopted child shall, by the act of adoption, assume all the rights of a child born to such parent. ***

"It is contended that the legal status of the adopted child is the same as that of the child born in lawful wedlock, and that, as a consequence, the same rights of heir and next of kin exist in one case as in the other, not only as to the parent, but as to all other persons. This position is sound in part only. So far as the parental obligation and the estate of the adopting parent are concerned, it is well taken, but beyond that it is not tenable."

The foregoing was quoted with approval in Taylor v. Taylor supra. Thus, so far as the estate of the adopting parent is concerned, "the legal status of the adopted child is the same as that of the child born in lawful...