Melek v. Curators of University of Missouri

• Citation: 213 Mo. App. 572,250 S.W. 614
• Decision Date: 30 April 1923
• Docket Number: No. 14716.,14716.
• Parties: MELEK v. CURATORS OF UNIVERSITY OF MISSOURI et al.
• Court: Court of Appeal of Missouri (US)

250 S.W. 614

213 Mo. App. 572

MELEK v. CURATORS OF UNIVERSITY OF MISSOURI et al.

No. 14716.

Kansas City Court of Appeals. Missouri.

April 30, 1923.

Appeal from Circuit Court, Boone County; D. H. Harris, Judge.

Action by Hortense Melek against the Curators of the University of Missouri and others to construe the will of James C. Reid, deceased, and to require the trustee thereunder to pay plaintiff her share of decedent's estate. Judgment for defendants and plaintiff appeals. Affirmed.

James M. O'Brien, of Los Angeles, Cal., and N. T. Gentry, of Columbia, for appellant.

Orville M. Barnett, of Columbia, for respondents.

BLAND, J.

This action was brought to construe the will of James C. Reid and to require the trustee thereunder to pay over to plaintiff one-half of the money derived from deceased's estate.

The facts show that the will was executed on May 28, 1902, that the testator died a resident of Boone county, Mo., the following year, and that his will was duly probated in said county. Under the terms of the will the testator gave one-half of his estate to be reduced to cash to defendant Mike Bright, trustee, to lend out, and to pay over the interest to his mother as long as she should live, and after the death of his mother that part of the estate should be held in the same way in trust for Mrs. Nicholson. After the death of Mrs. Nicholson said one-half of his estate was to go to the curators of the University of the state of Missouri in trust to lend out the money and use the interest to educate poor, industrious, and worthy young men and women of Boone county, Mo., in said University, preference to be given to young women, other things being equal. The will provided that the other half of his estate should be held by said Bright in trust to lend out and pay the interest to his daughter, Mamie Lee Cazier, and that, after the death of his daughter, "I want said trustee to hold and control and keep loaned out all of said money till my daughter's children become of legal age. At the time of their majority, I want each child to receive an equal portion of all of said money then in the hands of said trustee. If my daughter dies leaving no child or children, then I want said money to be turned over to the curators of the University of the state of Missouri," irk trust for the same purpose that they were to use the remainder of the other half of the estate.

At the time the will was executed Mamie Lee Cozier was childless. In the year 1912 Mrs. Cozier adopted plaintiff as her daughter; the adoption taking place in California in accordance with the laws of that state. On October 27, 1919, said Mamie Lee Cazier died, leaving no child of any kind other than plaintiff. The sole question to be determined is whether the adoption of plaintiff made her a child of the said Mamie Lee Cazier within the meaning of the will. The trial court decided this question against plaintiff and she has appealed.

It is held that, adoption being unknown to the common law and in derogation of it, the statutes of adoption are to be construed strictly against the adopted child, except that this construction is not extended to the act of adoption itself, which is liberally construed in favor of the child adopted. Hockaday v. Lynn, 200 Mo. 456, 464, 98 S. W. 585, 8 L. R. A. (N. S.) 117, 118 Am. St. Rep. 672, 9 Ann. Cas. 775; Clarkson v. Hatton, 143 Mo. 47, 57, 44 S. W. 761, 39 L. R. A. 748, 65 Am. St. Rep. 635; Reinders v. Koppelman, 94 Mo. 338, 7 S. W. 288. The statute of Missouri, in existence at the time the will was made, defining the rights of adopted children, provides that

"This provision shall not be extended to other parties, but is wholly confined to parties executing the deed of adoption." Section 5248, R. S. 1899.

A deed of adoption is not binding upon any one except upon him who makes it, and one who has a life estate cannot convey away the remainder by a deed of adoption any more than by a deed in any other form. Reinders v. Koppelman, supra, 94 Mo. Loc. cit. 346, 7 S. W. 288; Clarkson v. Hatton, supra, 143 Mo. loc. cit. 58, 44 S. W. 761, 39 L. R. A. 748, 65 Am. St. Rep. 735. The. Supreme Court in Hockaday v. Lynn, supra, 200 Mo. loc. cit. 465, 98 S. W. 587, 8 L. R. A. (N. S.) 117, 118 Am. St. Rep. 672, 9 Ann. Cas. 775, quoted with approval the following from the Supreme Court of the state of Pennsylvania:

"The right to inherit from the adopting parent is made complete [by the act of adoption], but the identity of the child is not changed; one adopted has the rights of a child without being a child."

"Giving an adopted son a right...