Johnson's Appeal

• The testatrix devised certain real estate to her executors, to he held in trust ■by them to pay over the rents, issues and profits to her son for life, and then disposed of the remainder as follows : “ and upon and immediately after the death of my son, to assign, grant and convey the said real estate to such person or persons, and for such estate or estates, and in such proportions as would, by the intestate laws of this Commonwealth, be entitled to the same, if he had died intestate seised thereof in fee.” After the death of the testar trix the son adopted a child under the provisions of the Act of May 4th 1855, and subsequently died, leaving this adopted child but no issue. Held, that this adopted child was entitled to the estate.

Appeal from the Court of Common Pleas, No. 4, of Philadelphia county: Of January Term 1878, No. 154. In Equity. Appeal of Ann B. F. Johnson, by her guardian, from the decree of the court dismissing her bill in equity. By her will, dated March 13th 1857, Mrs. Jane Johnson devised to testamentary trustees certain real estate in Philadelphia in trust, to collect the rents and profits thereof and to pay them over to her son, Samuel B. Johnson, for and during the term of his natural life, the same not to be subject to any debts or liabilities contracted by him, and immediately after his death to grant and convey the said real estate to such person or persons for such estate and in such proportions as would, by the intestate laws of this Commonwealth, be entitled to the same if he, the said Samuel had died intestate, seised thereof in fee. Other parts of her estate were similarly disposed of, in trust for three other sons. Her residuary estate was devised and bequeathed to trustees upon like Busts, for the benefit of her four sons for life, with a similar limitation of the remainders in each to such persons as would, by the intestate laws of Pennsylvania, be entitled to the same, if the sons had respectively died intestate, seised in fee. By a codicil the testatrix restricted the amount of income to be paid to her son, Samuel, to such sums as the trustees might, in their own discretion and judgment, think proper and conclusive to his welfare, and not to his injury. On the 8th of May 1875, Samuel B. Johnson applied to the Court of Common Pleas for permission to adopt Ann Booth Francis (the complainant), under the provisions of the Act of May 4th 1855, Purd. Dig. 61, which petition having been assented to by the minor and her mother, was duly granted, and it was decreed, in accordance with the act, that she should have “ all the rights of a child and heir of the said Samuel B. Johnson.” Ann Booth Francis was a stepdaughter of Samuel B. Johnson, being a daughter of his wife by James Francis, her former husband. Samuel B. Johnson died December 18th 1876, leaving a widow and no child, except his adopted daughter, the complainant. The case was heard on bill and answer, and the court, Thayer, P. J., in an opinion, said: “ The question to be decided upon the pleadings is, whether the fee in that portion of the estate of the testatrix which was devised and bequeathed in Bust for Samuel B. Johnson for life, has vested in the complainant, his adopted daughter, or has passed under the will to his surviving brothers and the children of his deceased brothers. “ It is clear that whoever is to take the remainder is to take as a purchaser under the will of Jane Johnson, and not by descent as the heir of her son. The son may be said to have been a purchaser as to his life interest, for, although at common law a devisee, who takes by the will precisely the estate, that would have been cast upon him by descent is in by descent and not by purchase, yet the case is different where there is a difference in quantity between the estate which the devisee would take as heir and that which he takes under the devise: Kinney v. Glasgow, 3 P. F. Smith, 143; Reading v. Royster, 1 Salk. 242. But as purchaser he only took an equitable life estate. He had nothing in it which could descend to his heirs. The fee remained in the trustees for the remaindermen, to whom it was given by the will, and these remaindermen are described as ‘ such person or persons as would, by the intestate laws of this Commonwealth, be entitled to the same if the said Samuel had died intestate, seised thereof in fee.’ What persons were intended by Mrs. Johnson by these words, for it is the intention .of the testatrix, and her intention alone which is to prevail ? We think those persons were intended who would have been entitled under the Intestate Act of 1833. That act is entitled ‘An Act relating to the descent and distribution of the estates of intestates.’ This is what is usually understood by the intestate law of Pennsylvania. It is commonly called the intestate law, sometimes the statute of distributions. It is in itself a complete code of laws upon the subject to which it relates. Its provisions are in accord with the general sentiment of the people of this state upon that subject, and are founded in nature and reason. It gives the property of an intestate to his kindred, commencing with the nearest in degree, and scrupulously confines the descent of real estate to those who are of the blood of the ancestor from whom it descended, or by whom it was devised. By this law any estate derived from the mother would, upon the death of any one of her sons, go to those of her own blood, to her surviving sons, and to her grandchildren and granddaughters, the children of her deceased sons. Can it be believed that' she intended that any part of it should go •to strangers to her blood, or, least of all, that it should go to an appointee of a son whom she had tied up by the most rigid trusts, whom she had deprived of the least control over both the corpus and income during his life, and of all disposition of it after his death ? Can she be supposed to have intended that her son should designate the heir wbo should succeed to her estate, when she deprived him not only of all power of appointment, but of any control whatever ? Could she have intended to commit the future disposition of the estate, or of any part of it, to her son’s discretion when she expressly deprived him of all discretion and power even over that which he was to enjoy himself, and subjected him absolutely, even as to the receipt of income, to the discretion and judgment of her trustees ? It is impossible for us to believe this, for it is contrary to the whole spirit and teno.r of her will. “But it is said that, however improbable this may be deemed, the testatrix must have intended that which she has said, that she has by express words limited the remainder to such person as would be entitled to the same by the intestate laws, if Samuel B. Johnson had died intestate, seised thereof in fee; that if Samuel B. Johnson had died intestate and seised thereof in fee, the complainant, his adopted daughter, would, under the Adoption Act of May 4th 1855, have been entitled to the estate. But the argument leaps to a conclusion which is totally unwarranted by law'. If Samuel B. Johnson had died intestate and seised in fee, it by no means follows that the complainant would have inherited this estate. It would have been necessary, in that event, to have inquired from whom the estate descended, or by whom it had been given or devised to him, for the ninth section of the Act of April 8th .1833 would have excluded from the inheritance all persons who were not of the blood of the perquisitor. There is not the slightest pretence to say that the Act of 4th of May 1855, relative to adoption, has repealed or modified in the least degree this fundamental rule of the law of descents, as fixed by the intestate law of this state. It would require the plainest and most express language, or the most absolute and necessary implication, to repeal a rule of inheritance so deeply imbedded in our law as this. There is nothing in the Act of 1855 which lend„s countenance to the supposition that it was the intention of the legislature to disturb in the least this long-established canon of descent. The act declares that such adopted child shall have all the rights of a child and heir of the adopted parent. It gives to the adopted child the right to inherit from the adopting parent, but always subject to the rules of inheritance laid down by the intestate law. It does not repeal the ninth section of the Act of April 8th 1883, w'hich demands the indispensable qualification of blood to enable her to inherit an estate coming to the adopting parent by descent or devise. As was said by Mr. Justice Strong, in Schafer v. Enue, 4 P. F. Smith 306, ‘ the statute of 1875 does not attempt the impossibility of making the adopted person the child of the adopted parent. It gives to such person the rights of a child without being a child.’ That is, the right to inherit from the adopting parent an estate of which he is the true perquisitor. But there is no ground to allege that an adopted child, not of the blood of the ancestor from whom the estate is derived, could inherit such an estate from his adopting parent. “ The argument therefore that the complainant is entitled to this estate because if her adopted father, Samuel B. Johnson, had died intestate seised in fee, she would have taken from him, is founded in an erroneous conclusion. She could not have inherited an estate derived to him by descent or devise from his ancestor, unless she W'as herself of the blood of that ancestor. When Mrs. Johnson, therefore, by her will gives the remainder to such person or persons as would by the intestate laws be entitled to the same, if her son Samuel had died intestate seised thereof in fee, her words must be construed with reference to the facts of the case, and the words had died intestate seised thereof in fee,’ must be taken to mean the same as if she had said died intestate seised thereof in fee of an estate derived from herself. “That the Act of 1855 confers only a limited right upon an adopted child, and does not substitute him in' the place of a real child under the intestate laws, is proved by the decision in Commonwealth v. Nancrede, 8 Casey 389, where it was held that a child by adoption is subject to the payment of the collateral inheritance tax, and Tharp v. Commonwealth, 8 P. E. Smith 500, is to the same effect. There is an analogy between the Act of May 4th 1855, relative to adopted children, and the Act of 27th April 1855 (Purdon 810), which enables illegitimate children to inherit from their mother and vice versa. That act declares that they shall have capacity to take and inherit from each other personal estate as next of kin and real estate as heirs in fee-simple. In Grubb’s Appeal, 8 P. E. Smith 55, it was held that the next of kin of the mother could not under this act inherit as heirs of the child, in other words, the act was held to have no operation in altering the intestate laws b.eyond the letter of the statute. A like rule may with propriety be applied to the Act of May 4th 1855. The application of that rule, while it gives the adopted child the right to inherit from the adopting parent, would exclude the possibility of such child inheriting from an ancestor of the adopting parent, and preserve intact the rule always so zealously maintained in this state, that one who claims an estate descended to or devised to an intestate must show himself heir to him by whom it was devised, or from whom it descended as perquisitor. “ When Mrs. Johnson therefore directed that the estate, the income of which was to be appropriated during his life to the maintenance of her son, should after his death go to such persons as would by the intestate laws be entitled to the same if he had died intestate, seised thereof in fee, she cannot be supposed to have intended that the estate should be taken out of the ordinary rules of descent prescribed by the intestate laws, and she must be presumed to have known that such an estate derived from her must be confined in its descent to heirs of her own blood. That this was her true intention, and that she did not contemplate the possibility of its being diverted from her own kindred to a stranger by any act of the son, we think is plainly apparent from the whole will. We have considered the question exclusively in respect to the real estate devised by the testatrix. We are of opinion that the same result would follow as to any personalty which might be embraced in the residuary estate, for it is obvious she intended the same persons to take both. But it is unnecessary to decide this, because the bill, while suggesting the possibility of some personal estate being comprehended in the residuary estate, does not explicitly charge that any such personal estate came to the hands of the trustees “Bill dismissed with costs.” From this decree this appeal was taken.