Schafer v. Eneu

• Decision Date: 25 February 1867
• Citation: 54 Pa. 304
• Parties: Schafer <I>versus</I> Eneu.
• Court: Pennsylvania Supreme Court

54 Pa. 304

Schafer versus Eneu.

Supreme Court of Pennsylvania.

February 12, 1867.

February 25, 1867.

February 12th 1867.

Before WOODWARD, C. J., THOMPSON, STRONG and READ, JJ. AGNEW, J., at Nisi Prius

Error to the District Court of Philadelphia.

T. R. Elcock, for plaintiff in error.—Do children adopted under the Act of Assembly of May 4th 1855, sec. 7, Purd. 44, pl. 1, Pamph. L. 431, take under the devise recited in the case stated? The intention of the act is to give adopted children all the rights of inheritance which natural born children could have; the proviso, in case of other children of the adopting parent being alive, makes it clearly so: McKee v. McKinley, 9 Casey 92; Haldeman v. Haldeman, 4 Wright 29. Covenant cannot be maintained against parties holding adversely.

E. Olmstead and H. M. Phillips, for defendants in error.— James Eneu died in 1851; the act was approved in 1855. To defeat the defendants it must be decided that the act shall have a retroactive effect: Dewart v. Purdy, 5 Casey 117; Bambaugh v. Bambaugh, 11 S. & R. 191.

The adopted children are not Theresa Clark's children. The Act of Assembly gives adopted children the rights of children, but it does not and cannot make them children of the adopting party: Commonwealth v. Nancrede, 8 Casey 389.

The testator designed to describe the root of a new succession, and a party claiming that succession must be the party described, not one having the rights of such a party. The children of Mrs. Clark were to take as purchasers.

The action of covenant is the only one that could be brought. There can be no suit for ejectment for an incorporeal hereditament.

The opinion of the court was delivered, February 25th 1867, by STRONG, J.

The rent was devised to trustees for the sole and separate use of Theresa Clark during her life, and upon her decease it was directed to be conveyed to her children and the heirs of her children for ever. She had therefore but a life estate, nothing which she could devise, or which could descend from her to her heirs. Had she left children they would have taken as purchasers, as devisees under the will of her father, and not by inheritance through her. She left no children issue of her body, but she left children adopted in conformity with the Act of Assembly of May 4th 1855, to whom she devised the property and estate devised to her for life, and after her death to her children and their heirs. For the reason already maintained, her devisees took nothing under her will, for she had no devisable estate. If, therefore, the adopted children are owners of the rent, it is because they they are devisees under the will of James Eneu the first testator. But his gift of the remainder was to the children of his daughter Theresa Clark, and the heirs of her children. Adopted children are not children of the person by whom they have been adopted, and the Act of Assembly does not attempt the impossibility of making them such. It enacts that it shall be lawful for any person desirous of adopting...