Warren v. Prescott

• Decision Date: 27 May 1892
• Parties: WARREN v. PRESCOTT et al.
• Court: Maine Supreme Court

24 A. 948

84 Me. 483

WARREN

v. PRESCOTT et al.

Supreme Judicial Court of Maine.

May 27, 1892.

(Official.)

Report from supreme judicial court, Somerset county.

Bill in equity by Charles E. Warren, as administrator with the will annexed of Martha H. Wright, against Mary A. Prescott and others, to obtain a judicial construction of the will. Bill sustained.

Charles H. Brick, one of the legatees under the will of Martha H. Wright, died during the lifetime of testatrix, leaving an adopted daughter, Alice P. Brick, but no issue of his body.

Merrill & Coffin, for plaintiff.

Walton & Walton, for defendant Mary A. Prescott.

Heath & Tuell, for defendant Alice P. Brick.

WALTON, J. The question is whether an adopted child can take a legacy given to one of its adopting parents, and thus prevent the legacy from lapsing, when the legatee dies before the testator. There is no doubt that a child born in lawful wedlock can so take. But, in this particular, does an adopted child possess the same right? We think so. With two exceptions, neither of which is applicable to such a case, an adopted child becomes," to all intents and purposes, the child of his adopters, the same as if born to them in lawful wedlock." Such is the express language of our statute in relation to the adoption of children. Rev. St. c. 67, § 35.

The exceptions are—First, that an adopted child shall not inherit property expressly limited to the heirs of the body of the adopters; and, secondly, that an adopted child shall not inherit property from their (the adopters') lineal or collateral kindred by right of representation. Rev. St. c. 67, § 35.

It is plain that neither of these exceptions is applicable to the question now under consideration They relate to the right to inherit as heirs at law, and not to the right to take under a will. To illustrate, we will suppose that one of the adopting parents is possessed of an estate expressly limited to the heirs of his body. By virtue of the first exception, an adopted child cannot inherit—that is, cannot take as an heir at law—this estate, or any portion of it. It must go to those to whom it is expressly limited. But an adopted child may rightfully inherit an estate not so expressly limited. With respect to such an estate, he must be regarded as a child, an heir, and a lineal descendant of his adopting parents, the same as if he had been born to them in lawful wedlock. By force of the second exception, an adopted child cannot be regarded as an heir at law of his adopting parents 'kindred. By adoption, the adopters can make for themselves an heir, but they cannot thus make one for their kindred. To this extent, the two exceptions named operate as a limitation upon the rights of an adopted child. But in all other particulars he is the child, the heir, and a lineal descendant of the adopting parents, to all intents and purposes, the same as if he had been born to them in lawful wedlock. And within the rights and powers thus conferred upon him, and without infringement of...