Brewer v. Browning

76 So. 267, 115 Miss. 358

• Court: Mississippi Supreme Court
• Decided: March 15, 1917
• Status: Published

Opinions

Ethridge, J.,

delivered the opinion of the court.

On the 15th day of July, 1901, Church W. Bule and his wife, Lula A. Buie, who were then living and having their domicile in Sunflower county, Miss., and then being without children, and being in the state of Kentucky, presumably on a visit there, on said date signed what is called in the record “articles of adoption.” This adoption was signed jointly by Church W. Buie and his wife on the one part and the Louisville Baptist Orphans’ Home, by its president, on the other part, by which Church W. Bule and his wife, Lula A. Bule, are said to have adopted a child, then about three years of age, and an inmate of said institution, named Lula May Browning. By said adoption the said Bule and wife obligated themselves to adopt the said infant, Lula May Browning, “and do hereby adopt said Lula May Browning, and covenant with said Louisville Baptist Orphans’ Home that said Lula May Browning shall bear from this time forward the same legal relation to them as if she had been born unto them, and were their child, especially as to such property as would descend to her were she their child.”/ After signing said articles' of adoption, Church W. Bule and his wife took the said infant to their home in Sunflower county, Miss., and there it occupied the relation of child to them, and was treated by them as their child, up to the time of their deaths, respectively.

It appears that the Louisville'Baptist Orphans’ Home was chartered and incorporated by an act of the G-eneral Assembly of Kentucky, approved January 28, 1870 (Laws 1869-70, chapter 197), and amended by an act approved January 31, 1880 (Laws 1879-80, chapter 108), and that by virtue of its charter it was invested with all the rights of parents and natural guardians of any child committed to its care, and that it was also empowered to permit any suitable person to adopt any child in its custody and control as their own child upon proper covenants in writing being executed by such persons and its president, and acknowledged by such persons and its president, and acknowledged or proven in the clerk’s office of Jefferson county, Ky., as deeds may be, and by the amendment of 1880 to this charter it was provided that by the articles of adoption, when executed and recorded, “such child shall become the heir at law of such person so adopting him or her, and be as capable of inheriting as though he or she were the child of said per-/ son,” etc. It appears also that the supreme court or Kentucky has held this act of incorporation constitutional, and that when this contract was executed it amounted there to a complete adoption, and authorized the child adopted to inherit as if it were the natural child of its parents.

On August 9, 1898, Mrs. M. J. Rule, the mother of Church W. Rule, died in Sunflower county, Miss., leaving a considerable body of land which descended upon her death to her children, one of whom was Church W. Rule. Church "W. Rule died February 7, 1903, leaving his wife and the adopted child, Lula May Browning, but no children born to himself and wife. In 1903 there was a suit filed in the chancery court of Sunflower county for a partition of the lands left by Mrs. Mary J. Rule, mother of Church W. Rule,' among the heirs then surviving, and the widow of Church W. Rule and Lula May Browning Rule were made parties. In this suit in the chancery court the bill of complaint filed contained the following provision with reference to the position or status of Lula May Browning Rule, to wit:

“The said minor, Lula May. Browning Rule, was never adopted by any proceedings in court according to fhe laws of the state of Mississippi, but said Church ~W. Rule and his wife, Lula A. Rule, made their certain contract in writing with Louisville Baptist Orphans’ Home bearing date of 15th of July, 1901, executed in ■triplicate and signed by the said Church W. Rule and Lula A. Rule and the said Louisville Baptist Orphans’ Home. By said contract it was agreed that the said Church W. Rule and his wife, Lula A. Rule, should adopt, and they did thereby adopt, said minor, whose name at that time was Lula May Browning, and that the said Lula May Browning should, from that time forth, bear the same relation to the said Church "W. Rule and his wife, Lula A. Rule, as if she had been born unto them and were their child, especially as to such property as would descend to her if she were their child. Complainants file herewith a copy of this contract as a part of this bill, and mark the same ‘Exhibit A.’ Complainants allege that from that time up to the time of the death of the said Church W. Rule the said Church W. Rule and his said wife have had the care, custody, and control of the said minor, and the said child is now in the care and custody of said Lula A. Rule. Tour complainants advise that by said articles of adoption, although there have been no proceedings in the court, the said child is entitled to have a child’s part in the said estate of Church W. Rule, but complainant, Lula A. Rule, submits this question for decision of this court: “The said Lula A. Rule is now the legally appointed guardian of the said Lula May Browning Rule. . It is asked that your honor may adjudicate whether the minor, Lula May Browning, has an interest in the said estate.’ This bill- of complaint being filed by Lula A. Buie and others in cause No. 1100 of the chancery court docket of Sunflower county, Miss.”

The prayer of the bill, among other things, asks that “your honor may adjudicate whether the said Lula May Browning Bule has an interest in the said estate.” A guardian ad litem was appointed for the minors in the suit, including Lula May Browning Bule, and the answers of the guardian ad litem submitting the interests of the minors to the protection of the court and praying that the allegations of the bill be required tó be substantiated by strictly legal proof. The Chancellor rendered a written opinion in which he held that Lula May Buie was in fact adopted by Church W. Bule and his wife, and as such adopted child inherited one-half of the estate and lands in Mississippi of Church W. Bule, and in the decree of partition set apart one of the four shares to Lula A. Bule and her adopted child, Lula May Buie, and from this decree there was no appeal prosecuted, and the right to an appeal has long since been barred by the statute of limitations. After this decree, and on the 29th day of November, 1905, the infant, Lula May Browning Buie, died. Mrs. Lula A. Buie, after the death of Church W. Buie, married one J. B. Fisher, and after such marriage Lula A. Buie Fisher, formerly the wife of Church W. Buie, died, leaving her husband, J. B. Fisher, who was one of the parties to the former appeal in this cause, but who since said appeal has disposed of his interest and claims to other appellants in this case. Subsequent to the death of Lula A. Buie Fisher, the brothers and sisters by natural blood of Lula May Browning Buie filed their bill in the chancery conrt, praying for a partition of the lands set apart to Lula A. Bule and Lula May Browning Buie by the cause No. 1100 jointly to be divided between the brothers and sisters of Lula May Browning Buie by the blood, and the appellants are original defendants in said suit. This bill for a partition. came on for hearing in the chancery court of Sunflower county, Miss., and the chancellor adjudged that the brothers and sisters of the blood of Lula May Browning Buie would inherit her interest in the said lands to the exclusion of Lula A. Buie Fisher and her heirs, and ordered a partition of the said property in accordance with the prayer of the hill, from which order an interlocutory appeal was allowed to this court, and was decided by this court in the case of Fisher v. Browning et al., 107 Miss. 729, 66 So. 132, in which opinion this court, as then constituted, adjudged that the decree of the chancellor in cause No. 1100 in Sunflower county adjudicated that Lula May Browning Buie inherited one-half of the estate of Church W. Bule, and that said judgment constituted res adjudicata,. hut decided that the chancellor was wrong in holding in that cause that Lula May Browning Buie was entitled to inherit from Church W. Buie as to lands under the laws of the state of Mississippi, and that the public policy of Mississippi with reference to inheritance of lands would be violated by adoption of a rule of comity as applied to adopted children in Kentucky, permitting them to inherit as heirs under the laws of this state. I They also held that the property allotted to the said Lula May Browning Buie should go to the sisters and brothers of the blood to the exclusion of the adopting parent, Mrs. Lula A. Buie Fisher, and her heirs. The cause was remanded for further proceedings, and partition was made in accordance with the former decree reported to the court and confirmed, and final appeal is prosecuted'here from that decree.

Several questions are presented now for consideration, among which the following may be stated: Is the opinion of this court on the former appeal conclusive on the court now under the doctrine of the law of the case? Second. If not, was Lula May Browning entitled to inherit from the adopted parents, Church W. Bule and Lula Á. Buie? Third. If she was, would the property inherited at the time of her death go to the brothers and sisters of the blood, or would it go to the adopted mother and her heirs to the exclusion of the sisters and brothers of the blood?

As to the first ground, whether or not the former decision of this court constitutes the law of the case in such sense as this court on this appeal is bound to follow it is not free from difficulty because of the well-recognized rule that the court, ordinarily, after having laid down principles governing a case on one appeal, will not review its holdings on a subsequent appeal, but will ordinarily adhere to its former decision and not inquire into its correctness. We do not think, however, that this rule is so fixed and binding upon the court that it may not depart from its former decision on a subsequent appeal if the former decision in its judgment after mature consideration is erroneous and wrongful and would lead to unjust results. Where the facts are the same,- and where there has been no chang*e of conditions or situations as that a change of decision would work wrong and. injustice, the court may, on the subsequent appeal, correct its former decision where it is manifestly wrong. In the present case there is no such change of condition as would inflict any hardship upon any party or person, and we are satisfied that the court reached the wrong conclusion in its former opinion. This court has, on more than one occasion, departed from its first announcement on subsequent appeal of the same case where there had been no change of conditions, or accrual of other rights that would be harmed or prejudiced by the other decision. In Maxwell v. Harkleroad, 77 Miss. 456, 27 So. 990, this court said: \

“It is further, in justice to the learned chancellor be-\ low, to be said that the decree rendered by him was induced by the opinion (formerly delivered by the writer hereof) of this court. It is not a duty merely, but a pleasure, to correct error at the earliest possible moment, and we are glad of the opportunity to do this in this case, while it is still pending undetermined.”

See, also 2 E. C. L. p. 226, section 188, where it is said:

“The better rule, and that more in accord with justice, is that, though ordinarily a question considered and determined in the appeal is deemed to be settled and not open to re-examination, on a second appeal it is not an inflexible rule, and if the prior decision is palpably erroneous, it is competent for the court to correct it on the second appeal.”

See, also, Missouri, K. & T. R. Co. v. Merrill, 65 Kan. 436, 70 Pac. 358, 59 L. R. A. 711, 93 Am. St. Rep. 287, where Justice Smith, speaking for the court, says:

“Counsel for defendant in error . . . insists that the former decision must govern on the second appeal. This would come to us with more force if we were not now considering the same case with the same parties before the court. If an erroneous decision has been made, it ought to be corrected speedily, especially when it can be done before the litigation in which the error has been committed has terminated finally. ”

See, also, Ellison v. Georgia Elec. Co., 87 Ga. 691, 13 S. E. 809 (where Bleckley, C. J., says: “The only treatment for a great and glaring error affecting the current administration of justice in all courts of original jurisdiction is to correct it. When an error of this magnitude, and which moves in so wide an orbit, competes with truth in the struggle for existence, the maxim for a supreme court, supreme in the majesty of duty as well as in the majesty of power, is not ‘Stare decisis,’ but ‘Fiat justitia mat coelum’ [Let right be done, though the heavens should fall] ”); Messinger v. Anderson, 225 U. S. 436, 32 Sup. Ct. 740, 56 L. Ed. 1152 (where the supreme court of the United States said: “In the absence of statute, the phrase ‘law of the case,’ as applied to the effect of previous orders on the later action of the court rendering them in the same ease merely expresses the practice of courts generally to refuse to reopen what has been decided — not a limit to their power”); King v. West Virginia, 216 U. S. 101, 30 Sup. Ct. 225, 54 L. Ed. 401; Remington v. Central Pacific R. Co., 198 U. S. 100, 25 Sup. Ct. 577, 49 L. Ed. 963.

The opinion of Cook, J., in Johnson v. Machinery Co., 104 Miss. 217, 61 So. 178, 62 So. 4, is pressed on us as being conclusive on us on the law of the case as applied to this appeal.. We. think the language used in that opinion as to the binding effect of a decision on first appeal is too broad. We do not approve of that portion of the opinion which states:

“If the decision of the court upon the original appeal was made upon a record which, in .all substantial particulars, was the same as now before us, we must decide now as we decided then, however wrong we may believe the court was in the first instance. This is the law, and we do not question its wisdom; nor do we wish to evade rules in order to right a real or imaginary wrong.”

We think courts are created and maintained and sworn to administer justice, and not to adhere strictly to arbitrary rules. When a rule of decision defeats justice or seriously impairs it, it should be departed from rather than followed. Rules are made to secure justice, not defeat it. We think the rule of “the law of the case’ is a good rule of practice, and should be followed, except in rare cases where the decision is manifestly and palpably erroneous and to follow it would result in grave injustice being done.

The decree of the chancellor in cause 1100, being res •adjudicata, established the status of adoption between parent and child under the laws of Kentucky! and it was by virtue of this status so established by our state court that the child took the one-half interest in the property of the deceased adoptive father pand by virtue of the same status the adoptive mother took the child’s interest in the property at its death. If the adjudication of the status by the chancellor in cause 1100 is res adjudi«cata, as held by Justice Owens in the former decision of this court, then such status should not be followed in part and ignored in part. The relation and status established should be observed throughout with reference to the descent of the property involved.

As to the second proposition as to whether or not Lulu May Browning Rule, the adopted child, was entitled under the facts stated to inherit from the adoptive parent Church W. Rule, the former opinion held that to permit such inheritance would violate the public policy of this state, and while, under the law of Kentucky the adoption had the effect of conferring upon the adopted child full capacity to inherit lands or personal property in Kentucky as a natural child, still it was contrary to the public policy of Mississippi for such child to inherit lands in Mississippi, and that the rule of comity would not require the state to adopt the Kentucky law upon that subject, or recognize the status of parent and child created under the laws of Kentucky by reason of the adoption. J The court on this subject says:

“We recognize that the weight of authority and trend of modern decisions is to the effect that every other state will recognize the status of the state creating it, and will give effect to it just as if that status were created under the law of the state where it is invoked, but provided always .that the status and the rights flowing from it are by laws of the state which are in harmony and consistent' with the laws and public policy of the state where it is invoked, and that therefore Mississippi will recognize the status of the child, created in Kentucky, as the adopted child of Church W. Rule, and will enforce all the rights of the child in that situation here, provided the rights flowing from that adoption in Kentucky and the laws of that state on the same subject are not inconsistent with or •opposed to the laws or public policy of this state on the same subject. . . . We do not believe, however, that this child was capacitated by the adoption in Kentucky to inherit lands in Mississippi, because the laws of Kentucky are inconsistent with and antagonistic to our Constitution and laws on the same subject, and to the public-policy of Mississippi on that subject, as such public policy is found in our statutes and Constitution, and for that reason we do not believe that Mississippi is bound to recognize this adoption by contract, as it was made in Kentucky, to be valid and binding in Mississippi as to confer upon the child the capacity to inherit lands in Mississippi. ’ ’

If we understand the opinion in the former case, it holds that it would be inconsistent with the laws and Constitution of Mississippi for an adopted child to inherit lands under the statutes of Mississippi; The court seems to-have been of the opinion that it was not possible for an. adopted child, adopted under the laws of Mississippi, to inherit as an heir of the adopting parent. We are at loss, to understand how the court reached this conclusion, in view of the previous decision of W. T. Adams v. America Adams et al., reported in 102 Miss. 259, 59 So. 84 Ann. Cas. 1914D, 235, where this court held that, where a petition was filed under the Code pertaining to the adoption of children, seeking the adoption of a minor, and a decree-was entered providing that the custody of the minor be awarded to the adopting father, and that he be clothed with all the rights and bound by all the obligations with reference to said child as that of a parent, and that said child be clothed with all the rights and bound by all the obligations with reference to the adopting father and his estate, real and personal, at his death, as that of a daughter, and that.the name of the child be changed to that of the adopting father, holding that such a decree under our laws creates a relationship of heir on the part of the-adopted daughter. It is therefore not contrary, to the Constitution,' laws, and public policy of Mississippi for a person to adopt a child so as to make it an heir and capable of inheriting both real and personal property.

In the case of Finley v. Brown, 122 Tenn. 316, 123 S. W. 359, 25 L. R. A. (N. S.) 1285, the Tennessee court in an able opinion holds that a child adopted in one state under the law of comity has a right to inherit real estate situated in another state even as to lands. In the report of the L. R. A. there is a case note in which the learned editor of this series says:

“As indicated in those notes, the decision of the . . - court in Finley v. Brown, giving effect to the foreign adoption for the purposes of - inheriting real estate in-Tennessee, is sustained by the weight of authority in this; country.”

See, also, as supporting this doctrine, 17 L. R. A. 435; 65 L. R. A. 186; 8 L. R. A. 747; 8 L. R. A. (N. S.) 117: 19 L. R. A. 201; 20 L. R. A. 199; 21 L. R. A. 380, 483; 23 L. R. A 196, 665; 27 L. R. A. 791; 30 L., R. A. 263; 33 L. R. A. 207, 34 L. R. A. 500; Humphreys v. Davis, 100 Ind. 369, 50 Am. Rep. 788.

In our view it would be unjust to both parent and child under the adoption made such by the law of one state in which they are given full right of parent and child to hold that the mere fact of moving to another state wouM unset and unsettle this relationship. It is of the utmost importance that the status of-this character should be maintained so far as it is possible to do it without doing violence to' the laws and institutions of the state wherein the parties have moved/ It was undoubtedly the intention of Church W. Rule and his wife in adojtinp’ this child to-give the child all the rights of a natural child and this intention should be carried out to the fullest extent permitted by the laws of this state. Under the Kentucky law the adopted child (adopted in the manner this one was),, inherits from the adopting parent as a natural child and is for all legal intents and purposes-the real child of the adopting parent, and under the laws of that state the adopting parents are the heirs of the adopted child in the case of the death of the child without issue and inherit from the child all property which it had derived from the adopting parents or either of them. According to the construction of courts of Kentucky the identical contract here involved created the legal status of parent and child between Mr. and Mrs. Rule on the one part and Mary Browning on the other. If this is true in Kentucky, why is it not true also in Mississippi? We are unable to appreciate the idea that this state will not fully and completely recognize and enforce a status thus created in Kentucky. When we apply our laws to the Kentucky status we find no difficulty in defining the reciprocal rights of the parties to the articles of adoption. Lula May Browning inherits the property of her adopting father and mother, and why? Because she is their child in legal contemplation. When the child died intestate Mrs. Rule inherited her property, .and why? Because Mrs. Rule in legal contemplation is the mother of the deceased child. There is no possible way in which Lula May Browning could have inherited the property in controversy except by reason of her legal status of daughter to her deceased father, Church W. Rule. The law of Kentucky has defined the status in a similar case as follows: By the event of adoption the .adopted child becomes the lawful child of the adopting parent in the same light as a child born in lawful wedlock. The estate of a natural child which he inherits from his parent is defeated by his death in infancy without issue, and the property then goes back to the kindred of that adopting parent. The adopted child, inheriting as though he were the child of his foster parent, takes subject to the same limitation, and if he dies in infancy and without issue the property under the status descends to the kin■dred of that parent from whom he receives it. Lanferman v. Vanzile, 150 Ky. 751, 150 S. W. 1008, Ann. Cas. 1914D, 563. See, also, Re Jobson, 164 Cal. 312, 128 Pac. 938, 43 L. R. A. (N. S.) 1062. So, we see that Lula May Browning by the event of adoption becomes the legal child of Church W. Rule and wife, the adopting parents, in the same light as a child born in lawful wedlock; and when .she dies in infancy without issue, under the inheritance laws of this state the property descends to her foster mother who survives her. We see no conflict, real or imaginary, between our laws and the laws of Kentucky on this subject. Under.our law the adopting parent may ■adopt the child fully and completely, or it may adopt it and limit its rights by a decree of court. In other words, under our statutes the parent can either adopt partially or totally, conferring or withholding benefits at his option but if he confers upon the child full benefits as though it were a natural child, there is nothing to prevent his so doing, and there can be no inconsistency between our law and the law of Kentucky as applied to the present adoption. If we treat the adoption in Kentucky as if it had been done in the chancery court of Mississippi, we find there is no greater right conferred there than may be conferred here. This construction appeals to- us as natural justice entirely consistent with sound judicial construction. In fact when judicial construction is out of harmony with natural justice, the judicial reasoning should withstand the most careful scrutiny and analysis before it should prevail. The principal of reciprocal relations between parent and child is recognized and enforced by the Kentucky law. A foster child inherits from the foster parent, and when the foster child, inheriting from one of the foster parents, dies without issue, the surviving foster parent takes the property which the foster child received from the intestate foster parent because the surviving foster parentis in law the mother of the deceased.

In Wagner v. Varner, 50 Iowa, 532, the court said that, upon the death of an adopted child intestate and without wife or descendant, may its heirs at law be sought in the family under which it was born or in the family of which it became a part by adoption? Has its relationship with its natural parents been disturbed by the act of adoption by which they relinquish' all control over it and consents that it should become in law the child of others? So far as its rights of inheritance are concerned they probally extend to both families to the extent of entitling it to inherit from both the adopting and natural parents. If the adopted child inherits property from the person on the' theory that it is the legal child of such person, we are unable to see any reason why upon its death such property should not descend to the relationship of the child created by the adoption. It is more consistent with justice to hold that the property inherited by Lula May Browning Buie from Church W. Buie should go to that line of legal heirs through which it was derived. It seems to us that it best harmonizes with the public policy of the state to recognize to the full extent the rights conferred by adoption. Those who have no natural children should be encouraged to adopt some child who has no parents to take care of it and educate it, and as far as possible to make such adopted child the real child of the adopting parents. If the rule should be adopted in this state and adhered to that the property coming to the adopted child from the adopting parents should, on the death of the child, descend to strangers of the blood of the adopting parent, it would have a strong tendency to discourage the good work of the adopting parents iii taking some, perhaps unfortunate, child and make it their very own, conferring upon it all the rights and privileges that could be conferred upon a child, and at the same time should the child unfortunately die, not to permit them to reinherit from the child that which they had, through motives of kindness and generosity, bestowed upon it.

Judge Freeman,the able annotator of the American State Beports, in a note to Van Matre v. Sankey, 39 Am. St. Rep. 228, 229, in commenting upon decisions holding that the adopting parents could not inherit from the adopting child said:

“The vice of these decisions, in our judgment, lies in the fact that the courts making them gave too strict a construction to statues of adoption, and were unwilling to 'concede that such statutes had any other object than to confer the benefit of heirship to the adopting parent upon the child adopted. The purpose of these statutes we conceive to extend further than this, and, in effect, to take the child from its parents by birth, and to give it to the parents by adoption, and to create, as between it and such parents, the reciprocal rights and relations of parent and ■child, and to give to the former both the incidental and the ■direct advantages of parentage; and we therefore think that, upon the death of such child intestate and leaving estate which, by statute, vests in its parnts, that the word ■‘parents,’ as thus used, should he deemed to designate the adopting parents,rather than the parents by birth; for, under the law, it is the former, rather than the latter, who ■occupy-the relation of parent to the child at the time of its •death. ”

Judge Elliott, speaking for the supreme court of Indiana, in Humphries v. Davis, 100 Ind. 274, 50 Am. Rep. 788, uses this language:

“It is, as we have seen, the legal status of the person respecting the subject that determines his legal rights. To •again quote from Austin: ‘The law of persons is the law of status or conditions. . . . The rights and duties, •capacities and incapacities, which constitute a status or condition, are commonly considerable in number and various in kind. . . . Such are the rights and duties, ■capacities and incapacities, of husband and wife, parent and child, guardian and ward.’ 2 Austin, Jurs. 709, 711. As the status of the surviving husband and adoptive father is that of father, his interest in the land which the deceased child held in virtue of the rights vested in it by •adoption is that of a father, since it is of that property, as the subject, that the statuts of parent and child is predicated. This is a just as well as a logical result. It is not to be presumed that the legislature meant to violate logical rules by creating the legal relation of child without the corresponding one of parent, nor that they meant to thrust out the surviving husband and father for the benefit of a person that was a stranger to the ancestor who was the .source of title.”

We, therefore, reach the conclusion that if Lula May Browning Buie, having inherited the property in this suit from her adopting father, Church W. Bule, and haying died without issue, the property descends to that heir of Church W. Buie, to wit, his wife, who bore the relation of adopted mother to said Lula May Browning Buie. It follows that the complainants had no legal right to the property claimed in their bill, and were without right to file the suit for partition, and the case is reversed, bill of complaint dismissed, and judgment entered here for the appellants.

Reversed, and judgment here.

Cook, J., took no part in this decision.