Moran v. Stewart

• Decision Date: 28 May 1894
• Parties: MORAN v. STEWART.
• Court: Missouri Supreme Court

26 S.W. 962

MORAN v. STEWART.

Supreme Court of Missouri, Division No. 1.

May 28, 1894.

DESCENT — RIGHTS OF ADOPTED CHILD.

A child duly adopted under Rev. St. § 968, providing for the adoption of children, is a child capable of inheriting, within the meaning of sections 4513, 4518, 4520, providing that the widow shall take half of her husband's real estate, as dower, in case he dies leaving no child capable of inheriting.

Appeal from circuit court, Andrew county; C. A. Anthony, Judge.

Action by Angie Moran against Samuel Stewart. From a judgment for defendant, plaintiff appeals. Affirmed.

David Rea and Jas. F. Pitt, for appellant. P. Mercer, Booher & Williams, and J. A. Sanders, for respondent

BLACK, C. J.

On the 17th April, 1869, David Moran and his wife, Catharine Moran, by deed duly executed, acknowledged, and recorded, adopted the defendant, Samuel Stewart, as their child and heir. Catharine Moran died, leaving her husband surviving. Thereafter, and on the 5th February, 1891, he and the plaintiff in this suit were married. He died testate on the 13th March, 1892, having devised the 400 acres of land now in question to Samuel Stewart, his adopted son. On the 8th September, 1892, the plaintiff signed, acknowledged, and recorded her election to take one-half of the real and personal estate of deceased in lieu of dower. She then brought this suit for the partition of the 400 acres, basing her claim to the one-half on the theory that her husband died "without any child or descendant in being capable of inheriting," within the meaning of Rev. St. 1889, § 4518. Section 4513, being the first section of the dower act, provides that "every widow shall be endowed of the third part of all lands whereof her husband or other person to his use, died seized of an estate of inheritance," to hold and enjoy during her natural life. Section 4518: "When the husband shall die without any child or other descendants in being, capable of inheriting, his widow shall be entitled: First * * *; second, to one-half of the real and personal estate belonging to the husband at the time of his death, absolutely, subject to the payment of the husband's debts." Section 4520: "When the husband shall die without a child or other descendant living, capable of inheriting, the widow shall have her election to take her dower, as provided in section 4513, discharged of debts, or the provisions of section 4518, as therein provided."

Now, the first section of the act concerning the adoption of children provides that "if any person in this state shall desire to adopt any child or children as his or her heir or devisee, it shall be lawful for such person to do the same by deed, which deed shall be executed, acknowledged and recorded in the county of the residence of the person executing the same, as in the case of conveyances of real estate." This section, it will be seen, speaks of adopting a child as heir or devisee. It is difficult to see what the legislature meant by the use of the word "devisee." One thing is certain, and that is this: that the deed of adoption cannot operate as, and perform the functions of, a will. The adopting parent may dispose of his property by last will,...