Yates's Estate

Gest, J., — The testator executed his will on June 9, 1900, and died on Aug. 11th of the same year. By his will he divided his residuary estate into four equal parts. One he gave to his brother Thaddeus, if the latter survived, or to his issue, if he should be deceased, and in default of issue to the testator’s three sisters. The other three shares the testator gave in trust for the benefit of his three sisters, Eliza, Clara and Helen, under similar trusts, viz., as to Plelen Foulk, in trust to pay her the income for life and on her death to pay over the principal of her share “to such child or children as my said sister Helen may leave her surviving and the issue of any child or children who may be deceased in equal shares per stirpes,” with remainder over, in default of such issue, to his nephew and two nieces, who are the exceptants here. The trusts for Eliza and Clara are identical, except that the remainders over in default of children or issue are given to the testator’s surviving brother and sisters. Helen Foulk, at the time of the execution of the will, was fifty-six years old and married to Thomas Foulk, but had no children. She died on Oct. 2, 1923, without ever having had children born of her body, but on Feb. 14, 1880, adopted the claimant, Effie Foulk, who was then an infant and was the daughter of William Johnston, deceased, and his wife, Anne Johnston. The testimony showed that Effie had been brought up by Thomas and Helen Foulk as their daughter, and under the name of Effie Rebanda Foulk; that the fact of her adoption was known to the testator when he made his will some ten years afterwards, and that he was called by her uncle Dave, etc. The auditing judge awarded the trust estate to Effie as the child of Helen, and the testator’s nephew and nieces have filed these exceptions. The first matter to be considered is the status of Effie as the adopted child of Helen under the deed of Feb. 14, 1880. The Act of May 4, 1855, § 7, P. L. 431, then in force, providing for adoption by decree of court, distinctly provides for the right of inheritance by the adopted child, and gives the adopted child the rights of a child and heir of the adoptive parents: Johnson’s Appeal, 88 Pa. 346. But, nevertheless, the collateral inheritance act was held to apply, in Com. v. Nancrede, 32 Pa. 389, because, as the Supreme Court said, “giving an adopted son a right to inherit does not make him a son in fact:” Wayne’s Estate, 18 W. N. C. 10. And likewise the adoption of a child by the [574] testator himself after the execution qf his will does not operate (previous to the Act of May 20, 1921, P. L. 937) as a revocation of the will pro tanto: Boyd’s Estate, 270 Pa. 504. The parties, however, did not avail themselves of the provisions of the Act of 1855, but adopted the claimant under the supplementary Act of April 2, 1872, P. L. 31, which refers to the common law form of adopting a child by deed and makes a certified copy of the recorded deed admissible in evidence; but, as was pointed out in Ballard v. Ward, 89 Pa. 358, and McCully’s Estate, 8 W. N. C. 14, affirmed in 10 W. N. C. 80, there is no such thing in Pennsylvania as a common law adoption by deed or in fact a common law adoption at all. Now, the deed of adoption in this case recites that Thomas and Helen Foulk are desirous of adopting the female child of Anne Johnston and taking her to live with them, to be cared for and educated as their own daughter, and that Anne Johnston consented and approved of such adoption, and the deed proceeds with a covenant by Anne Johnston to transfer and assign the said child to said Thomas and Helen Foulk, to have and to hold as their daughter and adopted child, and provided that they should treat the said child as their own and as though the same was born to them in lawful wedlock, and Thomas and Helen Foulk on their part agreed to treat the child kindly and as a daughter, to train, rear and teach her correct principles of morality and of the Christian religion and to keep, maintain and educate her according to their ability, so as to make her a useful member of society, and to train her to habits of industry and good order. There is not a word in this indenture to give the claimant any right of inheritance in the estate of her adoptive parents, such as is expressly given in cases of adoption under the Act of 1855, and it is very probable that the adoptive parents elected for this reason to have recourse to the Act of 1872. As was said by Judge Penrose in McCann’s Estate, 9 Dist. R. 184, in speaking of McCully’s Estate, 8 W. N. C. 14, the paper was prepared “with no intention of conferring the right to inherit as a consequence of the so-called adoption.” See, also, the similar cases of Wallace’s Estate, 218 Pa. 39, and Carroll’s Estate, 219 Pa. 440. It follows from this that Effie Foulk could not inherit as a statutory child and heir of her adoptive parents, but the auditing judge was of opinion that she could take under the will of the testator as included in the designation of child or children of Helen, relying principally upon the case of Bray v. Miles, 23 Ind. App. 432. In this case the testator gave his estate to his children, with a substitutionary gift, in the event of the death of any one of them, to the children of such deceased person. One of his daughters, Martha, was married when the will was written, never had children and predeceased the testator, having, however, during her lifetime, legally adopted a child, to whom Martha’s share was awarded, upon the ground that, under the statute of Indiana regulating adoption, the adoptive parents occupied the same position to an adopted child as natural parents, and, therefore, the adopted child was identified as a beneficiary under the will. A dissenting opinion was filed by the Chief Justice, which drew a clear distinction between the rights of an adopted child to inherit from its adoptive parents as though it were their child and the fact that adopting a child does not make it in reality the child of the adoptive parents, citing our own case of Schafer v. Eneu, 54 Pa. 304, where it is stated that the act of assembly does not attempt an impossibility; in other words, the identity of the child is not changed. But even if the decision in Bray v. Miles should be considered as sound, it is not applicable, as in that case the child had been legally adopted under the statute of Indiana, which provided that the adopted child should be entitled to all the rights in [575] the estate of the adopting father or mother, by descent or otherwise, that such child would have if the natural heir of such adoptive father and mother. The auditing judge was, however, of opinion that the testator understood Effie, the claimant, to be comprehended within the word “children” as he employed it in his will, and to some extent relied upon an unreported adjudication of Judge Penrose in the Estate of Samuel Gibson, 441 of January, 1907, which, as no exceptions were filed to it, was never considered by the court in banc. The will in this case provided: “If anything happens to me, all my property is to be sold and divided among you five children, share and share alike.” As the testator left four children, it it easy to see that there was something in the will that afforded a basis for testimony to show whom he intended by the fifth. No exceptions were filed, and it appears from the orders to satisfy that the four children made no objection to the award to the person to whom the testator stood in loco parentis, as his signature is followed by those of the other four. It is true that in Schafer v. Eneu, 54 Pa. 304, and Puterbaugh’s Estate, 261 Pa. 235, the adoption took place after the testator’s death, so that these decisions do not rule this case, but it may be observed that in Puterbaugh’s Estate the Supreme Court referred to “the disposition of the courts to confine and limit the word children in its application, when it occurs in a will, to its natural import, except where the testator has clearly shown by other words that he intended to use the term in a more extensive sense.” In Hughes’s Estate, 225 Pa. 79, the testator directed that his money in bank should be divided among all his children, and this was held not to include a woman whom, as an infant sixteen months old, the testator had taken to raise, and whom he recognized and treated as a daughter for thirty-five years, and to whom in his will he devised other property, describing her as “my adopted daughter” and “my daughter Annie Griffiths.” We may also refer to Line’s Estate, 221 Pa. 374, and our own decision in Bringhurst’s Estate, 1 D. & C. 330, in which parol evidence was held inadmissible to show that the testator considered a child, whom his daughter had adopted, as though she were a member of her family and his own grandchild. We there said: “Parol evidence is competent only to explain ambiguities in the will or to apply its provisions to the subject or person intended when the description is defective, uncertain or too general to be understood; but when the language of the will is plain, as it is here, parol evidence is not admissible in order, first, to create the ambiguity, and then afterwards to remove it. Evidence intended to afford a light by which what is said in the will may be read and understood is proper and competent, but that is quite different from evidence whose effect is to introduce into a will that which is foreign to it, thus giving to it operative provisions which were not in it before.” We believe that this statement of the law conforms with the rulings of the Supreme Court, and that, therefore, the parol testimony should not have been received in this case. There are indeed numerous cases, some of which were cited, in which the courts have construed the words child or children to include grandchildren, and perhaps Campbell’s Estate, 202 Pa. 459, is the extreme case. There, Judge Penrose, in this court, held that the gift in remainder to the children of the life-tenant was vested, and awarded the share in controversy to the executrix of the deceased son and not to his children. And in the course of his adjudication Judge Penrose said significantly: “If a grandchild claims a share of the estate of his grandfather under a gift to ‘children,’ he must show beyond all possible doubt that the word was used in a sense other than its usual one — as the equivalent of progeny or issue. . . . The word ‘child,’ [576] according to the lexicographers, means a son or daughter, the immediate progeny of the parent, but the word ‘children’ in the plural may mean ‘the descendants of a man, however remote,’ ” citing authorities. Exceptions were dismissed in an opinion by Hanna, P. J., 10 Dist. R. 287. On appeal, the Supreme Court discovered a manifest general intent in the will “to send the shares of each of his daughters respectively down in the line of his and her blood (italics ours) per stirpes. If he had said ‘decease without leaving any issue surviving,’ it would have been beyond question, and the plain intent of the whole provision of his will shows that he used the word ‘children’ in the sense of issue; a sense which, as remarked by the learned auditing judge, is sanctioned by the lexicographers,” etc. In other words, this case was decided on the ground that “children” meant issue, a conclusion that would not help the adopted child in this case, for certainly an adopted child is in no sense the issue. We refer also to Judge Penrose’s comments on Campbell’s Estate in Page’s Estate, 227 Pa. 288, and also to McGlensey’s Estate, 37 Pa. Superior Ct. 514. And, furthermore, as was said in Puterbaugh’s Estate, 261 Pa. 235, it requires less strain to include grandchildren under a gift to children than it does to enlarge the words so as to include adopted children, the obvious reason being that “children” may mean descendants, however remote. While decisions in other states are, of course, not authoritative, we may refer to Woodcock’s Appeal, 103 Me. 214, and Lichter v. Thiers, 139 Wis. 481. Re Truman, 61 Atl. Repr. 598 (R. I.), is cited to the contrary, but it will he noted that in this case the child had been adopted under the statute which gave her all the rights of inheritance as if she had been born the lawful child of her adoptive parents. Nor do we attach importance to the fact that the testator, knowing his sister’s age, took it for granted that she could bear no children, and he, therefore, must, have intended her adopted child as a beneficiary. This theory of decision is open to the same objection, namely, that there is nothing in the will to serve as a basis for it, and, although the probability of a woman fifty-six years old having a child is exceedingly remote, yet it is not impossible, and, in proper cases, where we terminate trusts on this ground, we always exact at least a refunding bond or receipt. We have no right to assume that the testator was familiar with the physiological statistics on this subject, and, while he may not have instructed the scrivener of the will as to the adoption of the claimant by his sister, or perhaps may have taken it for granted that an adopted child would take under the general designation of children, all this is mere surmise, affording no basis for a judicial construction of the will. The terms of this trust for Helen’s share of the estate, it will be noted, are precisely similar to those of the trusts for the two other sisters, and it may, therefore, be assumed that his intention was uniform in all three cases. If the claimant in this case had been adopted under the Act of 1855, or possibly under a deed giving her the right of inheritance, and the testator had died on or after Dec. 31, 1917, the statutory canon of construction enacted in section 16 (b) of the Wills Act of 1917 would apply, by which this bequest to the children of the testator’s sister would be construed to include her adopted child, who was adopted before the date of the will, an intention to the contrary not appearing therein. But the case is governed by the law as it existed prior to this statute. For the reasons set forth, the exceptions 1, 2, 3 and 4 are sustained. Exceptions were also filed to the award by the auditing judge to the executor of the deceased life-tenant of the income of the estate, inasmuch as the [577] will directed, on the death of the life-tenant, that the principal, together with any accrued income, should be paid to the remainderman. We agree with the auditing judge in this respect, and, therefore, exceptions 5, 6 and 7 are dismissed. Counsel will prepare a schedule of distribution in accordance with this opinion and submit the same to the auditing judge for his approval. Thompson, J., dissents for the reasons expressed in his adjudication.