Van Derlyn v. Mack

• Decision Date: 07 July 1904
• Citation: 100 N.W. 278,137 Mich. 146
• Court: Michigan Supreme Court
• Parties: VAN DERLYN et al. v. MACK.

100 N.W. 278

137 Mich. 146

VAN DERLYN et al. v. MACK.

Supreme Court of Michigan

July 7, 1904

Appeal from Circuit Court, Jackson County, in Chancery; Erastus Peck, Judge.

Suit by Nelson Van Derlyn and another against Lillie May Mack. From a decree in favor of complainants, defendant appeals. Affirmed.

Pringle & Hewett, for appellant.

Parkinson & Campbell and Charles E. Townsend. for appellees.

HOOKER J.

Lillie May Mack was adopted, under the provisions of the statute (Comp. Laws,� 8776 et seq.), in the year 1895, by John F Mack and his wife, Mahala J. Mack. She was not of kin to either of these persons. Mahala J. Mack had four brothers viz., James, Alfred, John, and Nelson. John Van Derlyn made a will September 25, 1901, in which he left his property to his three brothers, and mentioned his sister as having previously died without issue. On February 14, 1903, he made a codicil to the will, revoking all provisions in his will in favor of his brother James. A question arises as to the effect of this codicil; i. e., should the other two brothers take the share bequeathed to James in the first will, or did the codicil leave it subject to distribution under the statute? Lillie May Mack bases her claim upon the latter view, and a claim that she is entitled to inherit a portion of the same through representation of her mother by adoption, Mahala J. Mack testator's sister. The bill was filed by Nelson Van Derlyn, individually and as executor of John Van Derlyn, and Alfred Van Derlyn. In its prayer he asked (1) that it be decreed that Lillie May Mack is not an heir at law of John Van Derlyn, or a distributee in any of the personal estate of the deceased; (2) that the will and codicil be construed; (3) that it be decreed that the complainants are the sole devisees and owners of all of said estate; (4) that the title be declared free and clear from any claim on her part. The bill was demurred to, and, the demurrer being overruled, the defendant had appealed.

The statute (Comp. Laws, � 8780) provides: '(8780) Sec. 5. Such judge of probate with whom such instrument is filed shall thereupon make an investigation, and if he shall be satisfied as to the good moral character, and the ability to support and educate such child, and of the suitableness of the home of the person or persons adopting said child, he shall make an order to be entered on the journal of the probate court that such person or persons do stand in the place of a parent or parents to such child, and in case a change of name is desired, that the name of such child be changed to such name as shall be designated in said instrument for that purpose. Whereupon such child shall, in case of a change of name thereafter be known and called by said new name, and the person or persons so adopting such child, shall thereupon stand in the place of a parent or parents to such child in law, and be liable to all the duties and entitled to all the rights of parents thereto, and such child shall thereupon become and be an heir at law of such person or persons, the same as if he or she were in fact the child of such person or persons.' The power to inherit from Mahala Mack is given by this statute, and that is as far as the statute goes. It does not say that she shall be the heir of Mahala Mack's kindred, nor that she may inherit from them by the right of representation of Mahala Mack. We cannot extend the statute by construction. We see nothing in it to lead to the belief that it was the legislative intention to permit one to adopt heirs for third persons.

It is claimed that there are many decisions which sustain the claim of Lillie Mack, although counsel concede that there are others which deny it. It will be found, however, that there is not much inharmony in the cases, when the varying statutes of different states are considered; and we are satisfied that most, if not all, of the cases can be reconciled with the view above indicated, if proper allowances are made for the differences in statutes. Thus in Massachusetts the statute provides that '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, nor property from the lineal or collateral kindred of such parents by right of representation.' Gen. St. 1860, c. 110, � 7. In the case of Sewall v. Roberts, 115 Mass. 276, the Massachusetts court properly held that the excentions in the statute aided in the interpretation, and perhaps broadened it--a doctrine that is also enunciated in Glascott v. Bragg, 111 Wis. 605, 87 N.W. 853, 56 L. R. A. 258, and Warren v. Prescott (Me.) 24 A. 948, 17 L. R. A. 435, 30 Am. St. Rep. 370. See, also, Hilpire v. Claude, 109 Iowa, 159, 80 N.W. 332, 46 L. R. A. 171, 77 Am. St. Rep. 524. Also the cases of Flannigan v. Howard, 200 Ill. 396, 65 N.E. 782, 59 L. R. A. 664, 93 Am. St. Rep. 201, and Hartwell v. Tefft (R. I.) 33 A. 882, 34 L. R. A. 500, both of which states have statutes similar to that of Massachusetts. See, also, Vidal v. Commagere, 13 La. Ann. 516, for a broad construction of a statute of this kind, following the rule of the civil law.

The foregoing cases are for the most part justified by the respective statues, and therefore do not militate against another construction of a statute, which, while it makes an adopted child the heir of the persons adopting him, contains nothing to indicate that he may inherit the property of others, which never has descended to those adopting him. In the construction of such statutes the following authorities are in point: In Barnhizel v. Ferrell, 47 Ind. 336 it was held that, by adopting a child, he was not made the heir of his foster brother, under the statute of Indiana. See In re Estate of Sunderland, 60 Iowa, 736, 13 N.W. 655. In Power v. Hafley, 85 Ky. 676, 4 S.W. 685, the court said: 'In reaching the conclusion that one, by adopting another, may make that other his own heir, with full capacity to...