Tirrell v. Bacon

• Decision Date: 17 July 1880
• Citation: 3 F. 62
• Parties: TIRRELL and others v. BACON and others.
• Court: U.S. District Court — District of Massachusetts

3 F. 62

TIRRELL and others v. BACON and others.

United States Circuit Court, D. Massachusetts.

July 17, 1880

John P Treadwell, for the heirs of Edward C. Tirrell.

John Hillis, for the widow and adopted child.

The case was submitted upon the bill, the answer of those defendants who made answer, and certain agreed facts, the substance of which is as follows: Edward C. Tirrell, of Boston, made his last will in 1846, and died in 1857. After a specific bequest to his wife, he devised the residue of his estate to the defendant Bacon and others, in trust, to pay the income to his wife for life, and at her death to his children during their lives, respectively, in equal shares and, upon the decease of each child, to convey and transfer his or her share and portion of the property, real and personal, above devised, etc., to his or her child or children then living, in equal shares, and to the lawful issue then living of any deceased child of such child; and in default of any such child, children, or issue then living, to the testator's heirs at law.

The testator left eight children, of whom one was Edward Q Tirrell, who enjoyed one-eighth part of the income of the trust fund until 1879, when he died, leaving no children, unless the defendant Willie K. Tirrell is to be considered his child. Willie K. Tirrell was duly adopted as a child by Edward Q. Tirrell, in 1874, in accordance with the then existing laws of Massachusetts.

The question raised by the pleadings and statement was, whether Willie K. Tirrell took a share of the trust fund as a 'child' of Edward Q. Tirrell.

LOWELL C.J.

The law of adoption of children in Massachusetts was first enacted in 1851, and modified a few years later in Gen. St., c. 110. In 1871 it was modified in some respects. Under both those laws an adopted child was conclusively taken to be the equivalent of a legitimate child of the parent or parents who had adopted him, excepting in two particulars. Sewall v. Roberts, 115 Mass. 262; Burrage v. Briggs, 120 Mass. 103. The first statute had but one exception, and the law of 1871 added the other. The first was that such child should not take under a limitation to the heirs of the body of the adoptive parent; but this was held in Sewall v. Roberts, ubi supra, not to include a limitation to children. The other was, that he should not take by 'representation;' and there is no pretence that Willie K. Tirrell claims by that title.

It is argued that the will expresses a general intent to favor those who were of the testator's blood, by its final limitation over to his heirs if his children's children should leave no issue. But the cases decide that an adopted child is a child, and is issue, and no general inferential intent can overrule the language. The argument was equally strong in one of the cases above cited. I cannot doubt that Willie K. Tirrell takes, by purchase, unless cut off by a later statute.

The statute of 1876, c. 213, repeals the act of 1871, and changes the law of adoption very materially, with a view to limit the operation of the earlier statutes as construed by the supreme court. Section 9 declares that 'the term child, or its equivalent, in any grant, trust, settlement, entail, devise, or bequest, shall be held to include any child adopted by the settler, grantor, or testator, unless the contrary clearly appears by the terms thereof;' but in all other cases the presumption should be against that construction; 'provided, however, that nothing in this act shall be construed to restrict any right to the succession to property, which may have vested in any person already adopted in accordance with the laws of this commonwealth.'

When this law was passed Willie K. Tirrell had already been adopted, and the question is whether his rights are affected by it.

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