Morse v. Osborne

• Decision Date: 07 June 1910
• Parties: MORSE v. OSBORNE.
• Court: New Hampshire Supreme Court

77 A. 403

75 N.H. 487

MORSE

v. OSBORNE.

Supreme Court of New Hampshire. Hillsborough.

June 7, 1910.

Transferred from Superior Court, Hillsborough County; Wallace, Judge.

Action by Drusilla A. Morse against Alfred Osborne, guardian of Doris A. Morse. Decree for defendant, and plaintiff appeals. Appeal sustained.

Joseph C. Morse died January 13, 1909, leaving as the only persons entitled to share in his estate a widow, Drusilla A. Morse, who is the appellant, and the appellee's ward, Doris A. Morse, who was legally adopted by Joseph and Drusilla on April 4, 1903. December 13, 1909, the widow duly executed aud filed a release of her dower and homestead rights in the real estate of her deceased husband, and claimed to be entitled in fee to one-half of the estate remaining after the payment of debts and expenses of administration, under sections 10, 11, c. 195. Pub. St. Upon her petition for a division of the real estate, the probate court decreed her to be entitled to one-third only, and from that decree this appeal was taken.

Branch & Branch (Oliver W. Branch, orally), for appellant.

Alfred Osborne, pro se.

PARSONS, C. J. The status of an adopted child, unknown to the common law, may now be created in nearly all the states by proceedings authorized by legislative action. 1 Cyc. 917. As such status is entirely created by statute, the numerous and conflicting decisions with reference thereto, based upon the varying language found in the different enactments, are of little value in the present inquiry.

Is an adopted child "issue," within the meaning of sections 10-13, c. 105, Pub. St., which give the surviving husband or wife certain rights in the estate of the deceased wife or husband, dependent upon whether such deceased left issue of the marriage or no issue whatever surviving? Under section 11 of the chapter the appellant upon the facts stated is entitled in fee to one-third of her husband's real estate if he left issue by her surviving him, and to one-half "no issue whatever surviving him." "The word 'issue' means child, grandchild, or other lineal descendant." Kimball v. Penhallow, 60 N. H. 448. In common understauding the word includes natural descendants, and not children by adoption. Jenkins v. Jenkins, 64 N. H. 407, 14 Atl. 557; Stanley v. Chandler, 53 Vt. 619; New York Life Ins. Co. v. Viele, 161 N. Y. 11, 20, 55 N. E. 311, 76 Am. St. Rep. 238; Phillips v. McConica, 59 Ohio St 1, 51 N. E. 445, 69 Am. St. Rep. 753. "The word 'issue,' as applied to the descent of estates, shall include all the lawful lineal descendants of the ancestor." Pub. St. c. 2. § 20. Upon the question whether an adopted child is issue, the statutory definition gives but little aid, for the question is whether by force of the act of adoption the child has acquired the status of, or has become, a lawful lineal descendant of the adopting parents. In Jenkins v. Jenkins, 64 K. H. 407, 14 Atl. 557, the statute appears to have been regarded as defining the word "issue" to mean "heir of the body." The question in that case was the meaning of the word "issue" in a will probated long before either the adopting or defining statutes were passed; and, inasmuch as the legislative definition was given for use in the construction of statutes (Pub. St. c. 2, § 1; Comm'rs' Rep. R. S. p. 1, note), the reliance thereon in Jenkins v. Jenkins adds but little support to the undoubtedly sound result reached. But the judicial view therein taken in 1887 is doubtless entitled to some weight, in ascertaining the meaning given to the word when introduced in 1891 into the statute defining "the rights of the husband or wife, surviving, in the estate of the deceased husband or wife."

The statute providing for the adoption of children was enacted in 1802. Laws 1862, c. 2603. Section 4 is: "A child so adopted shall be deemed, for the purposes of inheritance by such child, and all other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as if he had been born to them in lawful wedlock; except that he shall not be capable of taking property expressly limited to the heirs of the body or bodies of the parents by adoption." Substantially the same language, with some verbal changes and an addition immaterial upon the present question, forms the existing statute. Pub. St c. 181, § 5. The purpose of the statute is to define the status of and to confer the right of inheritance upon the adopted child—not to regulate the rights of the surviving adopting parent in the estate of the one deceased.

In 1842, in the Revised Statutes the husband's common law right of curtesy was recognized in the provision for the descent of real estate subject to that right. Rev. St. c. 166, § 1. The only other statutory reference thereto prior to 1862 appears to be in the reservations to the husband of such right in the acts in relation to married women. Laws 1846, c. 327; Laws 1860, c. 2342. Subsequent enactments enlarging the property holding capacity of married women contain similar reservations, while the present statute gives the husband an estate by the curtesy "when he would be entitled to hold as tenant by the curtesy at common law." Pub. St. c. 195, § 9. As the common law did not recognize the status of an adopted child, it seems clear that the statutory adoption of a child was not intended to invest the husband with the common-law right of curtesy. It was so held in a recent case. Murdoch v. Murdock, 74 N. H. 77, 65 Atl. 392.

In 1862 the widow's share in her husband's estate, in addition to homestead and dower, depended in part upon whether or not the husband left a lineal descendant. Comp. St. 1854, c. 175, §§ 2, 9, 12. As it is clear the Legislature did not understand that the husband's right in his wife's real estate was increased by the capacity of inheriting from the wife conferred upon an adopted child, it is reasonable to conclude that it was not understood the wife's right in her husband's estate was diminished by the capacity of the adopted child to inherit from the husband. The child was rendered capable of inheriting from each, but the rights of husband and wife in the property of the other were not disturbed.

The term "lineal descendant," in the statute determining the right of the wife in the husband's estate, appears in Gen. St. 1867, c. 183, §§ 7-12. In the General Laws, in similar provisions, for "lineal descendant" was substituted "child, or the issue of any child." In this revision the provisions on the subject in behalf of both parties are first grouped together. Gen. Laws, c. 202. That the change from "lineal descendant" to "child, or the issue of any child," was not made for the purpose of including adopted children, appears from the history or the section directly involved (section 11), under which the...