Webb v. Jackson

• Decision Date: 13 May 1895
• Citation: 40 P. 467,6 Colo.App. 211
• Parties: WEBB v. JACKSON et al.
• Court: Colorado Court of Appeals

40 P. 467

6 Colo.App. 211

WEBB v. JACKSON et al.

Court of Appeals of Colorado

May 13, 1895

Error to district court, Boulder county.

Action by Mary Adella Webb, as heir of Mary C. Moore, against Robert Jackson and others. From a decree for defendants, plaintiff brings error. Affirmed.

Chas. M. Campbell, for plaintiff in error.

George Rogers, O.E. Jackson, and George F. Dunklee, for defendants in error.

BISSELL J.

The right to inherit property in Colorado is wholly a matter of statute. The subject of the descent and distribution of estates is controlled by legislative enactments. To determine whether, in any given case, a person is entitled to a distributive share of the decedent's estate, the court must first consider the relationship of the claimant to the decedent, and then decide the force and effect of the statute on which the claimant's rights depend. In 1869, Robert A Moore and Mary C. were husband and wife, and residents of the county of Boulder. Prior to this date, Robert McFarland and his wife were neighbors and residents of the county until Robert was killed, in 1864, at Sand Creek. He died leaving two children, a boy, and a girl named Mary Adella. About the date first named, Moore and his wife took the girl, Mary Adella, into their family, and she became, so far as their acts and her treatment were concerned, their child by adoption, and lived with them until Robert Moore died, in March, 1886. At his death Robert left considerable property on which his widow administered, and of which, so far as we are able to gather from the record, Mary Adella received her proportion. Of this fact we are unable to speak definitely but it is an unimportant consideration. During Robert's lifetime, and probably on his application, the Colorado legislature passed an act to change the name of Mary Adella McFarland to Mary Adella Moore, and by the second section of the act gave her the rights of inheritance by the following specific provision: Section 2: "That the said Mary Adella Moore shall be entitled to inherit the same interest in the estate, real and personal, of the said Robert A. Moore, in the same manner as if she were the daughter and natural heir of the said Robert A. Moore." There were other provisions in the act, but this is the only one which we must construe. The act took effect from the date of its passage, which was February 11, 1870. The child continued to live in Robert Moore's family, and to be known by his name until and after his death, and until the death of Mary C., his wife, at a later date. On the death of Mary C. she left a will, which disposed of her property, giving it to certain named legatees, of whom Mary Adella was not one. The will was filed for probate, and, on the hearing, Mary Adella filed her claim asserting her heirship as the daughter of Mary C., and as such claimed an interest in the property. Her claim was rejected, and from the action of the lower court affirming the distribution of the property according to the provisions of the will Mary Adella prosecutes this error.

The whole question is in a nutshell, and was clearly foreshadowed by the opening paragraph of the opinion. Eliminating all consideration of lineal or collateral descent or matters of sex, it was universally true at the common law that the right of inheritance was dependent upon the blood relationship of the one who claimed to be the heir of the deceased ancestor. It is impossible to give to the blood of a child, who is brought into the family by agreement or adoption, inheritable qualities. While the learned research of counsel has sought to find confirmation of a different principle by apt quotations from that masterful delineator of the passions of the human heart, who makes Orlando say:

"I am more proud to be Sir Rowland's son,--His youngest son,--and would not change that calling

To be adopted heir to Frederick,"

--he has apparently been unable to put his finger on any statute which would make Mary Adella the heir of Mrs. Moore. We must therefore conclude that in this state there was no act providing for the adoption of children prior to the enactment of 1876, which is found in Gen.St.1883, c 1. At the time, then, of the passage of the act, first referred to, there was no law in force in Colorado which provided for the adoption of children. The only other statutes bearing on this subject are the general statutes of descent and distribution. It must be conceded the...