Virgin v. Marwick

• Decision Date: 30 June 1903
• Citation: 55 A. 520,97 Me. 578
• Parties: VIRGIN v. MARWICK et al.
• Court: Maine Supreme Court

55 A. 520

97 Me. 578

VIRGIN

v. MARWICK et al.

Supreme Judicial Court of Maine.

June 30, 1903.

(Official.)

Bill by Harry R. Virgin, executor, against Ernest H. Marwick and others. Decree rendered.

Argued before WISWELL, C. J., and EMERY, STROUT, PEABODY, and SPEAR, JJ.

Franklin C. Payson and Harry R. Virgin, for plaintiff.

Frank W. Butler, for defendant Marwick.

Robert T. Whitehouse, Jed F. Fanning, and Charles E. Burbank, for other defendants.

STROUT, J. This is a bill asking construction of the will of Capt. Edward A. Marwick, but, to facilitate settlement of the estate, the parties request that it may also be regarded as a bill of interpleader, so far as the disposition of money received upon two life insurance policies is concerned, and, as all parties interested in the fund are before the court, we accede to the request.

July 17, 1863, Capt. Marwick took a policy of insurance upon his life, in the New England Mutual Life Insurance Company, for $5,000, in which the company promised to pay that sum to "the said assured, his executors, administrators or assigns sixty days after due notice and proof of the death of the said assured * * * for the benefit of his widow, if any, otherwise for the benefit of his then surviving children."

January 28, 1865, he took another policy for $5,000 in the same company, with the same provisions as to payment as in the first policy—"for the benefit of his widow, if any, and his then surviving children, in equal shares to each." Marwick was married in 1860. His wife was living when these policies were issued. In 1861 she gave birth to a child, which deceased in about two weeks after its birth. She never bore another child, and died before her husband, who did not again marry. Marwick died February 16, 1895, leaving neither widow nor issue of his body.

In October, 1872, Capt. Marwick and his wife petitioned the probate court for leave to adopt a boy named Ernest H. Gruntzow, and that court, at a term held on the first Tuesday of October, 1872, after hearing, "decreed and declared that from and after the date hereof the said child shall be to all legal intents and purposes the child of said petitioners, and that his name be hereby changed to that of Ernest Herman Marwick," and delivered to Capt. Marwick and his wife a certificate signed by the judge, under seal of the court, in which it was stated "that from this day said child shall to all legal intents and purposes be your child. * * * You therefore assume the relation of parents to said child, and will hereafter cherish, support, educate and otherwise provide for him as though you were his natural parents." Thenceforward Ernest was the legal child of Capt. Marwick, from whom he was entitled to receive the same respect, obedience, and service as from a natural child, and to whom he owed all the duties of a parent. This relation existed until the death of Capt. Marwick.

Ernest now claims the proceeds of these policies of insurance, which have been paid to the executor, as legal child of Capt. Marwick. The claim is resisted by other parties interested in Capt. Marwick's estate.

If Ernest is to be regarded as a child of Capt. Marwick, within the scope and meaning of these policies, then he is entitled to their proceeds as clearly as if he had been designated by name in them. His right thereto was by virtue of the contract, and so vested in him that it could not be altered or taken away by Capt. Marwick, by will or otherwise. The estate of Capt. Marwick can take no part of them.

The statute in force when this adoption was had, Rev. St. 1871, c. 67, provided, in section 30, that, after the prescribed proceedings in the probate court had been taken, the judge of probate "shall make a decree setting forth the facts, and declaring that from that date such child is the child of the petitioners," and, by section 31, such adopted child "shall be, for the custody of the person and right of obedience and maintenance, to all intents and purposes, the child of the adopters, as if they had been his natural parents," except as to the right of inheritance.

Rev. St. 1857, c. 59, §§ 28, 29, in force when these policies were issued, contained the same provisions as those in Rev. St. 1871, c. 87. They applied to these policies, with such consequences as might legally result therefrom, in case of any future adoption. The contract was not limited to issue. The term "child" has a broader significance than "issue."

The status of an adopted child is well defined by the court in Power v. Hafley, 85 Ky. 674, 4 S. W. 684: "It is the event of adoption that fixes, under the law authorizing the adoption, the legal status of the adopted child: and the child, by the event of adoption, becomes the legal child of the adopting parent, and stands, as to the property of the adopting parent, in the same light as a child born in lawful wedlock, save in so far as the exceptions in the statute authorizing the adoption declare otherwise. And when the statute authorizes a full and complete adoption, the child adopted thereunder acquires all of the legal rights and capacities, including that of inheritance, of a natural child, and is under tin same duties." See, also, Humphries v. Davis, 100 Ind. 274, 50 Am. Rep. 788; Wagner v. Varner, 50 Iowa, 532.

In Waldohorough v. Friendship, 87 Me. 211. 32 Atl. 880, it was held that an adopted child took the pauper settlement of the party adopting him. Peters, C. J., in that ease, said: "The common law established certain legal relations between a father and his child, and the statute substitutes the same legal relations between the father and his adopted child. The latter are as legal as the former—both are legal, the latter superseding the former." The adoption in that case was under the Revised Statutes of 1871, which also govern the present case, and under the statute which provided that legitimate children have the settlement of the father. The same doctrine was held in Massachusetts in Washburn v. White, 140 Mass. 568, 5 N. E. 813, under a statute which provided that "legitimate children shall follow and have the settlement of their father." The court said: "One of the legal consequences of the...