Warren v. Prescott

Adoption. Devise. Lineal Descendant. Lapsed Legacy, 11. 8., c. 67, § S5,r c. 74, § 10. A legally adopted child is a lineal descendant of Its adopting parents within the ■ meaning of the Ti. S., c. 74, § 10; and, as sncli, may take a legacy given by-will to one of its adopting- parents, and thus prevent the legacy from lapsing,, when the legatee dies before the testator.

On report. This was a bill in equity, brought by an administrator witln the will annexed, of Martha H. Wright, to obtain a judicial construction of the will. The essential facts, which were admitted by the respondents to be correctly set forth in the bill, are as. follows : The will after providing for the payment of debts, funeral charges and expenses of administration, disposed of the residue-of her estate to various relatives, share and share alike, each of the legatees being entitled to one-eleventh part. She named Charles H. Brick, of Augusta, as one of her legatees. He died before the death of the testatrix, leaving no issue of his body, but leaving an adopted daughter, Alice P. Brick. This child was adopted by Charles H. Brick and his wife, by virtue of a decree of the Probate Court for Kennebec County, made upon regular proceedings, under R. S., c. 67, § 35, at the September term, 1885. The decree of adoption is as follows : "State of Maine. Kennebec County: In Probate Court, held at Augusta, on the fourth Monday of September, 1885. "In the matter of the petition of Charles H. Brick, and Mary Emma Brick, his wife, of Augusta in said County, for leave to adopt Alice, a minor child under the age of fourteen years, of unknown parents, abandoned by them, and now in custody of petitioners ; being satisfied of the identity and relations of the parties, of the ability of the petitioners to bring up and educate the child properly, having reference to the degree and condition of said child’s parents, and of the fitness and propriety of the adoption prayed for, and written consent to said adoption having been given by H. M. Heath, appointed by the judge to act in the proceedings as the next friend of said child, upon proof that its parents have long since abandoned her and ceased to provide for her support, and that she has no legal guardian and no next of kin in this State. " Ordered; That from the date hereof, the said child shall be to all legal intents and purposes, for the custody of the person and all rights of inheritance, obedience and maintenance, the child of the aforesaid petitioners, the same as if born to them in lawful wedlock, except that said child shall not inherit property, expressly limited to the heirs of the body of her adopters, nor property from their lineal or collateral kindred by right of representation, and said child shall hereafter take the name of Alice Prescott Brick.” It was admitted by the parties that, unless this adopted daughter took this share of Charles H. Brick under the will, said share became a lapsed legacy, and should be distributed as intestate property. This was the question submitted for the decision of the court. Two questions arise, the determination of either of which adversely to the claim made by Alice P. Brick, will be decisive of this case. First: Is Alice P. Brick a "lineal descendant” of Charles H. Brick, within the meaning of R. S., c. 74, § 10? Second : Does the legacy to Charles H. Brick fall within the exception in R. S., c. 67, § 85, which prohibits the adopted child from inheriting property from lineal or collateral kindred of the adopters, by right of representation? 1st. Alice is nota lineal descendant within the meaning of R. S., c. 74, § 10. The terms " descendants ” and " lineal descendants ” have uniformly been construed to mean the same as "issue.” 2 lied. Wills. 3d ed. p. 77; Hamlin v. Osgood, 1 Redf. Sur. Rep. 409 ; Baker v. Baker. 8 Cray, 101; Osgoocl v. Lovering, 33 Maine, 469; Mowalt v. Qarow, 7 Paige Ch. 339. See also, Wister v. Scott, 105 Pa. St. 200, where it is said that the word "issue ” in leg'al parlance means lineal descendants. As bearing upon the construction of this term, we quote R. S., c. 1, § 6, cl. IX. "The word issue as applied to the descent of estates, includes all lawful lineal descendants of the ancestor.” Here "lineal descendants,” the very term under consideration, are treated as identical with "issue.” In Morse v. Hayden, 82 Maine, 137, occurs this language : "While the devisee in the case at bar was a relative of the testator, he did not leave any'lineal descendants,’ — that is, any 'issue,’ which is synonymous with 'lineal descendants’— hence would not include his mother.” This statute in its original form and in all revisions, these same words, "leaving lineal descendants,” are found, and there is no suggestion that they are to bear a different meaning from their ordinary legal signification. Prior to 1880, our law gave an adopted child no rights of inheritance whatever,— that is, no right to inherit from its adopters. 2d. The intention of the legislature, as expressed in R. S., c. 67, § 35, is plain. They meant to give the • adopted child the power to take such of the property of his adopters as the latter did not voluntarily divert into other channels, (except property limited to the heirs of the body of the adopters) and nothing more. But property coming from lineal or collateral kindred of the adopters is not to be diverted from its natural course, and cast upon one who is not of their blood. Therefore, an adopted child does not take by right of representation the property of its adopters, relatives, whether descending to them as heirs-at-law, or by devise or bequest. Argument that "inherit,” as used in the exception, is to be strictly construed, in the sense of taking as heir, is suicidal; because "inheritance,” in the same: section, must also beso construed ; and it follows that if the claimant cannot take as heir she must take as a sort of statute devisee. Fisher v. Hill, 7 Mass. 86. In Sewall v. Roberts, 115 Mass. 262, an adopted child took the fund because the court held that the settlement was to be regarded as made by the foster-father himself. Lapsed legacy: R. S., c. 74, § 10; Kimball v. Story, 108 Mass. 382; 1 Jar. Wills, pages 618-622. By the terms of the decree of adoption, claimant was not to inherit property from the adopters’lineal orcollateral kindred by right of representation.