Warren v. Prescott

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. R. S., 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. R. S., 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 [487] 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 themeslves 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 either of the exceptions referred to, an adopted child may take a devise or legacy given by will to one of his adopting parents, and thus prevent the devise or legacy from lapsing, in case the parent dies before the testator, precisely the same, and with the same limitations, as if he were a child born to such parent in lawful wedlock. In such a case, a child born in lawful wedlock does not "inherit” the devise or legacy from his parents’ kindred. One who takes under a will does not " inherit.” To inherit is to take as an heir at law, by descent, or distribution. To take under a will is not to inherit. And when an adopted child takes a legacy given by will to one of his adopting parents, he does not take as an heir at law of the parent’s kindred. He does not " inherit ” the legacy from the testator. He takes as a lineal descendant of the legatee, by force of the statute. K.. S., c. 74, § 10. Notas a lineal descendant by birth; but as a statutory lineal descendant; and as lawfully in the line of descent as if he were placed there by birth. It is as competent for the legislature to place a child by adoption in the direct line of descent as for the common law to place a child by birth there. And that is precisely what the legislature has done, and what it undoubtedly intended to do, when in strong and emphatic language, it declared thata legally adopted child becomes to all intents and purposes, the child of the [488] adopters, the same as if he were born to them inlawful wedlock, with the two exceptions named, neither of which, as we have already seen, is applicable to such a case. This conclusion is, in our judgment, as indisputable as a mathematical demonstration. We cite, not as directly in point, but as having a bearing on the question, Ross v. Ross, 129 Mass. 243 (37 Am. Rep. 321), and Humphries v. Davis, 100 Ind. 274 (50 Am. Rep. 788). Our opinion, therefore, is, that Alice P. Brick, the adopted daughter of Charles H. Brick, is entitled to the estate, real and personal, given to the latter by the will of Martha H. Wright, and which the said Charles H. Brick would have taken if he had survived the testatrix. And, as the question was new, and the parties seem to have acted in good faith, in taking the opinion of the court, the costs of the litigation, including moderate counsel fees, may be paid by the administrator, and charged to the estate in his administration account. Bill sustained. . Peters, C. J., Virgin, Libbey, Emery and Haskell, JJ., concurred.