Ross v. Ross

• Decision Date: 28 September 1880
• Citation: 129 Mass. 243
• Parties: Walter H. Ross v. Joseph M. Ross
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

129 Mass. 243

Walter H. Ross v. Joseph M. Ross

Supreme Court of Massachusetts

September 28, 1880

Argued September 25, 1878

Hampden. Writ of entry brought by an infant, by his next friend, to recover a parcel of land in Springfield. The case was submitted to the Superior Court upon the following statement of facts:

In May 1871, and for several years previous, James M. Ross and Cynthia B. Ross resided in the county of Erie and State of Pennsylvania. On March 13, 1871, James M. Ross presented to the Court of Common Pleas for said county of Erie his petition representing "that he is desirous of adopting Walter H. Smith" (the present demandant), "an infant son, of the age of five months, of John Wesley Smith and Mary Smith, now deceased, of said county, as one of his heirs, and for that purpose he herein declares his said desire, and also that he will perform all the duties of a parent to said Walter H. Smith;" and therefore praying the court to decree that said Walter H. Smith might assume his name, and have all the rights of a child and heir of said James M. Ross, and be subject to the duties of such child. The petition was signed and sworn to by James M. Ross, and was also signed by John Wesley Smith, the surviving parent of the child, for the purpose of giving his consent to such adoption. After due proceedings had upon the petition, that court, at May term 1871, as appears by its records "being satisfied that the welfare of said minor, Walter H. Smith, will be promoted by the adoption prayed for, and further that the surviving parent of said child consents to said adoption, ordered, adjudged and decreed that the said child shall assume the name Walter H. Ross, and have all the rights of a child and heir of the said James M. Ross, and be subject to all the duties of said child." At that time the statute of Pennsylvania of 1855, c. 456, which is copied in the margin, ^[*] was the law in force in that State relating to the adoption of children; and under the law of that State the demandant became the adopted child of James M. Ross.

Afterwards, in the year 1871, James M. Ross with his wife and the demandant came to reside in Springfield in this Commonwealth, and continued to reside in Springfield until May 1873, when James M. Ross died intestate, the owner in fee of the demanded premises, and leaving no other child than the demandant.

Both parties claim title to the demanded premises; the demandant as the child and heir of James M. Ross, and the tenant as brother of James M. Ross.

Allen, J. ruled pro forma that the demandant had not maintained his case; ordered judgment for the tenant; and reported the case to this court. If, upon this statement of facts, the demandant was not entitled to be recognized as a child and heir of James M. Ross under the laws of this Commonwealth, the judgment was to stand; otherwise, judgment to be entered for the demandant.

Judgment for the demandant.

N. A. Leonard & G. Wells, for the demandant.

J. M. Ross, pro se.

Gray, C. J. Ames & Soule, JJ., absent.

OPINION

Gray, C. J.

This case presents for adjudication the question which it was attempted to raise in Ross v. Ross, 123 Mass. 212, namely, whether a child adopted, with the sanction of a judicial decree, and with the consent of his father, by another person, in a State where the parties at the time have their domicil, under statutes substantially similar to our own, and which, like ours, give a child so adopted the same rights of succession and inheritance as legitimate offspring in the estate of the person adopting him, is entitled, after the adopting parent and the adopted child have removed their domicil into this Commonwealth, to inherit the real estate of such parent in this Commonwealth upon his dying here intestate.

The question how far a child, adopted according to law in the State of the domicil, can inherit lands in another State, was mentioned by Lord Brougham in Doe v. Vardill, 7 Cl. & Fin. 895, 898, and by Chief Justice Lowrie in Smith v. Derr, 34 Pa. 126, 128; but, so far as we are informed, has never been adjudged. It must therefore be determined upon a consideration of general principles of jurisprudence, and of the judicial application of those principles in analogous cases.

As a general rule, when no rights of creditors intervene, the succession and disposition of personal property are regulated by the law of the owner's domicil. It is often said, as in Cutter v. Davenport, 1 Pick. 81, 86, cited by the tenant, to be a settled principle, that "the title to and the disposition of real estate must be exclusively regulated by the law of the place in which it is situated." But so general a statement, without explanation, is liable to mislead. The question in that case was of the validity of an assignment of a mortgage of real estate; and there is no doubt that by our law the validity, as well as the form, of any instrument of transfer of real estate, whether a deed or a will, is to be determined by the lex rei sitoe. Goddard v. Sawyer, 9 Allen 78. Sedgwick v. Laflin, 10 Allen 430, 433. United States v. Crosby, 7 Cranch 115. Clark v. Graham, 6 Wheat. 577. Kerr v. Moon, 9 Wheat. 565. M'Cormick v. Sullivant, 10 Wheat. 192.

It is a general principle, that the status or condition of a person, the relation in which he stands to another person, and by which he is qualified or made capable to take certain rights in that other's property, is fixed by the law of the domicil; and that this status and capacity are to be recognized and upheld in every other State, so far as they are not inconsistent with its own laws and policy. Subject to this limitation, upon the death of any man, the status of those who claim succession or inheritance in his estate is to be ascertained by the law under which that status was acquired; his personal property is indeed to be distributed according to the law of his domicil at the time of his death, and his real estate descends according to the law of the place in which it is situated; but, in either case, it is according to those provisions of that law which regulate the succession or the inheritance of persons having such a status.

The capacity or qualification to inherit or succeed to property, which is an incident of the status or condition, requiring no action to give it effect, is to be distinguished from the capacity or competency to enter into contracts that confer rights upon others. A capacity to take and have differs from a capacity to do and contract; in short, a capacity of holding from a capacity to act. Generally speaking, the validity of a personal contract, even as regards the capacity of the party to make it, as in the case of a married woman or an infant, is to be determined by the law of the State in which it is made. Milliken v. Pratt, 125 Mass. 374, and authorities cited. Polydore v. Prince, 1 Ware 411,. Bell v. Packard, 69 Me. 105. Bond v. Cummings, 70 Me. 125. Wright v. Remington, 12 Vroom 48. Sir William Scott in Dalrymple v. Dalrymple, 2 Hagg. Consist. 54, 61. Lord Brougham in Warrender v. Warrender, 2 Cl. & Fin. 488, 544; S. C. 9 Bligh N. R. 89, 120; 2 Sh. & Macl. 154, 214. Simonin v. Mallac, 2 Sw. & Tr. 67, 77. Sottomayer v. De Barros, 5 P. D. 94, 100. And the validity of any transfer of real estate by act of the owner, whether inter vivos or by will, is to be determined, even as regards the capacity of the grantor or testator, by the law of the State in which the land is situated. Story Confl. §§ 431, 474. But the status or condition of any person, with the inherent capacity of succession or inheritance, is to be ascertained by the law of the domicil which creates the status, at least when the status is one which may exist under the laws of the State in which it is called in question, and when there is nothing in those laws to prohibit giving full effect to the status and capacity acquired in the State of the domicil.

A person, for instance, who has the status of child of another person in the country of his domicil, has the same status here, and as such takes such share of the father's personal property as the law of the domicil gives him, and such share of his real estate here as a child takes by the laws of this Commonwealth, unless excluded by some positive rule of our law. Inheritance is governed by the lex rei sitoe; but legitimacy is to be ascertained by the lex domicilii. If a man domiciled in England has two legitimate sons there, and dies intestate, owning land in this Commonwealth, both sons have the status of legitimate children here; but, by virtue of our statute of descents, the land descends to them equally, and not to the eldest son alone, as by the law of England.

If a marriage (in the proper sense of the term, not including Mormon or other polygamous marriages; Hyde v. Hyde, L. R. 1 P. & D. 130) is celebrated in one State, according to the form prescribed by its laws, between persons domiciled there, and competent to intermarry, it is universally admitted that the woman must be recognized everywhere as the lawful wife of the man, and entitled as such upon his death to such dower in his lands as the law of the State in which they are situated allows to a widow; although it is this law, and not the law of the domicil, which fixes the proportion that she shall take. Ilderton v. Ilderton, 2 H. Bl. 145. Doe v. Vardill, 2 Cl. & Fin. 571, 575, 576; S. C. 9 Bligh N. R. 32, 47, 48. Potter v. Titcomb, 22 Me. 300. Lamar v. Scott, 3 Strob. 562. Jones v. Gerock, 6 Jones Eq. 190. Story Confl. §§ 159, 454.

Our law goes beyond this in recognizing the validity of foreign marriages, and holds that, the relation of husband and wife being a status based upon the contract of the parties, and recognized by all Christian nations, the validity of...