Russell v. Russell
| Decision Date | 22 March 1888 |
| Citation | 3 So. 900,84 Ala. 48 |
| Parties | RUSSELL v. RUSSELL ET AL. |
| Court | Alabama Supreme Court |
Appeal from chancery court, Mobile county; THOMAS W. COLEMAN Chancellor.
This was a bill filed by Caroline V. Russell, the appellant, to construe the last will and testament of Thomas S. Russell deceased, and praying that the court direct the executor how to distribute the estate of the testator. The facts, as brought out in trial of the case, are sufficiently stated in the opinion to fully understand the decision of this court. The chancellor decreed that the adopted son, Cyrus George Russell, should take under the will as if he was really the child of the testator; taking, therefore, one-third of the estate, personal and real. The complainant thereupon appealed, and now assigns this decree of the chancellor as error.
Overall & Bestor, for appellant.
R H. Clark, for appellees.
In 1870, Thomas S. Russell made a will, duly executed, containing the following clause: "I give to my children two-thirds of all my personal and real estate." The remaining third he gave to his wife, Caroline V. The will disposed of his entire estate. At that time he had one child, Thomas E. Russell, about six or seven years old, and Mrs. Russell was enciente. She did not carry the child to a living birth, and gave birth to no other child. In 1885, Thomas S. Russell, testator, adopted Cyrus George, an orphan, and had his name changed to Cyrus George Russell. The proceedings were in strict conformity to the statute. Code 1876, § 2745; Code 1886, § 2367. The statutory provisions are: "Any person desirous to adopt a child, so as to make it capable of inheriting his estate, real and personal, or to change the name of one previously adopted, may make a declaration in writing, *** which being acknowledged by the declarant before the probate judge of the county of his residence, *** has the effect to make such child capable of inheriting such estate of the declarant, and of changing its name to the one stated in the declaration." Thomas S. Russell died in 1886. He had made no other will, nor had he changed the provisions of the will of 1870. The will was duly probated, and the question is whether the adopted child, Cyrus George Russell, takes under the will.
If the word "inheriting" had been left out of our statute we think it would probably be our duty to hold that an adopted child would take under the term "children." Adoption of children is "an act by which a person appoints as his heir the child of another," (Rap. & L. Law Dict.;) "to receive and to treat as a son or daughter one who is the child of another," (Worcest. Dict.;) "to take into one's family as son and heir; to take and treat as a child, giving a title to the privileges and rights of a child," (Webst. Dict.) The Imperial Dictionary (England) employs substantially both the definitions of Worcester and Webster. What we have intimated above is the conclusion very clearly and satisfactorily reached by the supreme court of Louisiana in Vidal v. Commagere, 13 La. Ann. 516; Schouler, Dom. Rel. 314. The word "inheriting" is twice employed in our statute, and, it would seem, was placed there ex industria. The legislature did not deem it necessary to make any provision in case a will was made; for, in such case, the testator usually directs in what manner his property shall go after his death. A will, unless it contravenes some provision of positive law, or some principle of public policy, is the law of the succession. In interpreting a will, we may and should take into the account the surrounding state of things, as they existed when the will was made. This is not confined to the exact ascertained status, then existing and known. It may, and often does, extend prospectively, so as to embrace both subjects and objects not then in being, but which the law presumes were had in contemplation. Hence it is that when a will does not specify all the property it disposes of, but purports to dispose of testator's entire estate, it carries under its devises and bequests, not alone the property owned at the time the will was made, but all acquired afterwards, and owned at testator's death. Hence it is that a testamentary gift by a parent to his or her children, without more specific designation, inures to the benefit, not only of children then in esse, but equally to those born afterwards. These canons of interpretation are founded on two presumptions: First, when a will has been made, the testator is presumed to have intended to dispose of his entire estate, unless the will...
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In re Holden's Trust
...give the adopted child the status of a natural one and grant only certain rights of inheritance from the adopting parents. Russell v. Russell, 84 Ala. 48, 3 So. 900; Rodgers v. Miller, 43 Ohio App. 198, 182 N.E. The New York statute construed in Re Leask, 197 N.Y. 193, 90 N.E. 652, 27 L.R. ......
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In re Holden's Trust
...give the adopted child the status of a natural one and grant only certain rights of inheritance from the adopting parents. Russell v. Russell, 84 Ala. 48, 3 So. 900; Rodgers v. Miller, 43 Ohio App. 198, 182 N.E. The New York statute construed in Re Leask, 197 N.Y. 193, 90 N.E. 652, 27 L.R.A......
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Bray v. Miles
...used in a will, a child adopted after the execution of the will could not take under such words. Jenkins v. Jenkins, supra; Russell v. Russell, 84 Ala. 48, 3 So. 900; Barnum v. Barnum, 42 Md. Schafer v. Eneu, supra; Bowdlear v. Bowdlear, 112 Mass. 184; Wyeth v. Stone, supra. I find very man......
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Casper v. Helvie
...in the will makes it clear that it was intended to be included. In addition to the authorities heretofore cited see Russell v. Russell, 84 Ala. 48, 3 So. 900;Stout v. Cook, 77 N. J. Eq. 153, 75 A. 583;Melek v. Curators, 213 Mo. App. 572, 250 S. W. 614;Cochran v. Cochran, 43 Tex. Civ. App. 2......