Mesecher v. Leir

• Decision Date: 13 June 1950
• Docket Number: No. 47632,47632
• Citation: 241 Iowa 818,43 N.W.2d 149
• Parties: MESECHER v. LEIR et al.
• Court: Iowa Supreme Court

Page 149

43 N.W.2d 149

241 Iowa 818

MESECHER v. LEIR et al.

No. 47632.

Supreme Court of Iowa.

June 13, 1950.

Jobens, Butenschoen & Werner, Davenport, for appellants.

Clay LeGrand, Devenport, for appellee.

HALE, Justice.

The question involved is whether, under a bequest to the children of an aunt of the testator, an adopted daughter of such aunt will inherit equally with the two natural children. The case was tried largely on a stipulation of facts, in substance, as follows: The will of Albert Mausnest of Davenport was duly admitted to probate on April 3, 1944; that by said will he devised and bequeathed one-third share of the residue of his property as follows--'a one-third share thereof unto such of the children of my anut, Mrs. Kate Yeager of Rock Island, Illinois, as may be living at the date of my death.'

The defendants, Mary Allen and Josephine Schaum, are natural daughters of Kate Yeager, and the plaintiff, Catherine Mesecher, is the adopted daughter of Kate Yeager. Kate Yeager died prior to the death of said Albert Mausnest, a resident of Rock Island county, Illinois; that she, Kate Yeager, by proceedings in the court of Rock Island county adopted Catherine Mary Stafford, her granddaughter, on April 5, 1906. The decree provided that she should retain the name of Catherine Mary Stafford, her name being now Catherine Mesecher.

It was further stipulated that subject to objections Catherine Mesecher, plaintiff, would testify as follows: That she was born December 26, 1901; that Kate Yeager was her maternal grandmother and the aunt of Albert Mausnest with whom she was well acquainted and visited in the home of his parents once or twice a year until she was a young girl at the age of 12 or 14; that the Mausnest home was in Davenport and that she does not recall the date on which the father and mother of Mausnest died; that her visits continued until about the time Albert Mausnest married, at which time her visits ceased except for one visit which she made to the home of Albert Mausnest thereafter; that on several occasions during these visits the adoption of Catherine Mesecher by Kate Yeager was discussed by those present. At the time of such discussions those present were Kate Yeager, Catherine Mesecher, Albert Mausnest, Charlie Mausnest, and on one occasion Anna Mausnest and Pauline Mausnest, which discussions caused her considerable anguish and concern and impressed upon her that she was an adopted child; that on one occasion Albert Mausnest stated that Kate Yeager, in view of her advanced age, had done a very noble thing in adopting Catherine Mesecher. This is the substance of the stipulation in plaintiff's testimony.

The defendants' testimony, except as to the offer of exhibits, consisted of the examination of Martin D. Leir, an attorney who drew and was a witness to the will. His testimony, introduced under objection, was, in substance, that Mr. Mausnest called at his office. 'He had previously prepared some penciled notes as to what he wanted set out in his will. He was rather reticent in his conversation with me and at times seemed to resent any suggestions I would make. He stated he wanted me to prepare his will and gave me the names of certain relatives that he wanted named in there.' There was nothing mentioned about an adopted child, and he did not say who the children of his aunt, Kate Yeager, were, and didn't seem to have a very clear notion himself as to who they were. He mentioned about leaving one-third of his residuary estate to the children of his aunt, Kate Yeager.

The adoption statute of the state of Illinois was introduced in evidence. The foregoing, with the will, constitutes the evidence in the case.

The pertinent part of the will in controversy is the 'Seventh' clause, as follows:

'Subject to the life estate set out at No. 4 hereof, I give, devise and bequeath all the rest, residue and remainder of my property of every kind, nature and description, and wherever located unto the following:

'A one-third share thereof unto such of the grandchildren of my late uncle, Jacob Hoersch, Davenport, Iowa, as may be living at the date of my death.

'A one-third share thereof unto such of the children of my aunt, Mrs. Kate Yeager of Rock Island, Illinios, as may be living at the date of my death.

'A one-sixth share thereof unto such members of the Pfitzenmeier family of Aledo, Illinois, as may be living at the date of my death, said devisees being my second cousins and being the following four persons: Charles Pfitzenmeier, William PfitZenmeier, Edward Pfitzenmeier, and their one sister whose name is unknown to me.

'A one-sixth share thereof unto the grandchildren of my late uncle, Jacob Einhallig, at one time of Leavenworth, Kansas.'

In this clause the only part in controversy is that part making a bequest to the children of Mrs. Kate Yeager. The cause was submitted to the court which found that Mrs. Yeager was survived only by two natural daughters and one adopted daughter, and that it was the intention of Albert Mausnest to include Catherine Mesecher as a beneficiary under said clause seven, and decree was entered accordingly. That is, that the two natural children and plaintiff should share equally in the devise and bequest established by clause seven. Defendants appeal.

Defendants allege that the court erred in determining the testator's intention in its interpretation of the meaning of the words 'children of my aunt.' Also erred in determining the testator's intention, in not considering the effect of the adoption statute of the state of Illinois pertaining to a collateral inheritance, and erred in its interpretation of the testator's will and surrounding circumstances pertaining to its execution.

I. The question before the court is the interpretation of that part of the Seventh clause of the will respecting the devise and bequest to the 'living children of my aunt, Mrs. Kate Yeager,' the plaintiff alleging that she is entitled to share. It is argued by the plaintiff that the general proposition in which this dispute arises may be stated as follows: Ordinarily, the word 'children' when used in a will and when referring to children of a person other than the testator, does not include adopted children. In order for such term to include adopted children of a person other than the testator, it is necessary that the intention of the testator to include such children appear. Various forms of words which have been passed upon by the courts appear in the reports, and various questions arise. Thus, whether the adoption was completed before or after the testator's will, and whether testator had knowledge of the adoption at the time his will was executed.

The rule is expressed in Volume 3, Reinstatement of the Law of Property, 1520, section 287.

'(1) When a limitation is in favor of the 'children' of a designated person, all persons adopted by the designated person are excluded from the possible takers thereunder except when a contrary intent of the conveyor is found from additional language or circumstances.

'(2) The following are the most frequently encountered factors tending to establish the existence of the 'contrary intent of the conveyor,' referred to in Subsection (1):

'(a) the conveyor is also the designated person;

'(b) the conveyor at the time of the execution of the instrument containing the limitation knows of the adoption.'

The comment on Subsection (2), Clause (b) is:

'Situations which include the factor described in Clause (b). When a conveyor limits property in favor of his own 'children' and has theretofore adopted a child, the situation thus created is within both Clause (a) and Clause (b). When, however, a conveyor limits property in favor of the 'children' of a person other than himself and such person has theretofore adopted a child, the situation is not within Clause (a) but is within Clause (b), if the conveyor knows of the adoption at the time of the execution of his conveyance. When these facts exist, a finding is justified that the conveyor intended such adopted child to share to the same extent as if he had been a natural born child of the designated person, and this finding is made unless additional language or circumstances tend to establish a contrary intent.'

The reason for the rule showing a contrary intent is, that where a will has been executed before the effective date of an adoption, it has been held that the word 'children' does not include an adopted child because such children not then being in legal existence could not have been in contemplation of the maker of the will, but in other cases in which the adoption is completed before the execution of the testator's will and the testator had knowledge of that adoption, it has been held that the testator intended to include adopted children in the term 'children.' This appears to be the reason for the distinction and in general the principal reason for the difference in the holdings of the courts. However, in a Maine case, In re Woodcock, 103 Me. 214, 68 A. 821, 125 Am.St.Rep. 291, while these conditions were met, yet the court held contrary to the general rule.

The Maine case held, as shown by the headnotes, that where a testator devises property to his own child by blood, and then over to the 'child or children' of that child, if any, otherwise to others of the testator's blood, a child of the latter by legal adoption only is not included, and takes nothing under the will, even though adopted before the making of the will. The question was whether the words 'child or children' as used by the testator in the clause of the will included a child by adoption and not of the blood. It was therein held, not according to the rule, division (a) above quoted, that where one makes provision for his own 'child or children,' by that designation, he should be held to have included an adopted child, since he is under obligation in morals, if not in law, to make provision for such child. Citin...