Fisher v. Browning

66 So. 132, 107 Miss. 729

• Court: Mississippi Supreme Court
• Decided: March 15, 1914
• Status: Published

Opinions

Owen, Special Judge,

delivered the opinion of the court.

On the 15th day of July, 1901, Church W. Rule and his wife Lula A. Rule, who were then living and having their domicile in Sunflower county, Mississippi, and then being without children, and being in the state of Kentucky, presumably on a visit there, in Kentucky, on said date signed what is called in the record, “articles of adoption.” This was a contract merely, signed jointly by Church "W. Rule and his wife on the one part and the Louisville Baptist Orphans’ Plome, by its president, on the other part, by which Church W. Rule and Ms wife, Lula A. Rule, are said to have adopted a child, then about three years of age, and an inmate of said institution, named Lula May Browning. By this contract the said Rule 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’ Plome 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, Mississippi, and there it occupied the relation of a 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 general assembly of Kentucky, approved January 28, 1870 (Laws 1869-70, ch. 197), and amended by an act approved January 31, 1880 (Laws 1879-80, ch. 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 or proven in the clerk’s office of Jefferson county, Kentucky* 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 such persons,” etc. It appears also that the supreme court of 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.

We remark that the present Constitution of Kentucky has a provision similar to section 90 of our own Constitution, which forbids that any special laws shall be passed on the subject of adoption, and other things, but this Constitution of Kentucky was adopted after the act of incorporation aforesaid, of the Louisville Baptist Orphans’ Home, with a saving clause, and we do not think that it repealed that act.

On August 9, 1898, Mrs. Mary J. Buie, the mother of Church W. Buie, living in Sunflower county, Mississippi, died and left a considerable body of land, which descended on her death to her children, two of whom were then living, and to the heirs of the two of her children then dead. Mrs. Mary J. Buie was survived by one son, J. W. Bule, and a daughter, Emma. Her son, J. H. Buie, who died after she did, was survived by his widow, Mary Maude Bule, and her daughter, then an infant, Johnnie Floyce Bule, and her son, Church W. Buie, who died after his mother did, was survived by his widow, Lula A. Buie, and the adopted child, Lula May Browning Buie. On March 2, 1903, J. W. Buie, the surviving son of Mrs. Mary J. Bule, and the widows of his two deceased brothers, to wit, Mrs. May Maude Buie, the widow of John Bule, and Mrs. Lula A. Buie, the widow of Church W. Buie, filed in the chancery court of Sunflower county, Mississippi, a hill to which they made defendants Emma Buie, the surviving daughter of Mary J. Buie, an adult, and the two minors, Johnnie Floyce, the daughter of Mrs. May Maude, the widow of John Bule, and Lula May Browning Bule. The object of this bill, and its sole purpose was to partition the lands of Mrs. Mary J. Buie between her surviving son and daughter and the heirs of her deceased sons, J. W. Buie and Church W. Bule, and the hill prayed for a division of said lands of Mrs. Mary J. Buie into four parts; that is, one part might be set aside to J. W. Bule, and another part to Emma Bule; one part to the widow of John H. Bule, and her daughter, Johnnie Floyce Buie, jointly, and the fourth part to he set aside to Lula A. Bule, and the child, Lula May Browning Buie.

The hill of complaint thus filed contains the following statement, with reference to the position of Lula May Browning Buie:

‘ ‘ The said minor, Lnla May Browning Rule was never adopted by any proceedings in court, according to the laws of the state of Mississippi, but the said Church W. Rule and his wife, Lula A. Rule, made their certain contract in writing with the Louisville Baptist Orphans’ Home, bearing date the 15th day of July, 1901, executed in triplicate, and signed by said Church W. Rule and Lula A. Rule and the said Louisville Baptist Orphans’ Home. By the said contract it was agreed that the said Church W. Rule and his wife, Lula A. Rule, should adopt, and they did thereby adopt, the 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 herewith file a copy of this contract as 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 said minor, and the said child is now in the care and custody of said Lula A. Rule. Tour complainants are advised that by said articles of adoption, although there had been no proceedings in the courts, 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; the said Johnnie Floyce has no guardian. It is asked that your Honor may adjudicate whether the said minor, Lula May Browning Rule, has an interest in said estate. ’ ’

The suit in which this bill was filed is called cause No. 1100 in the record, being so numbered -on the chancery court docket of Sunflower county.

The prayer of the bill, among other thing’s, is:

“That your honor may adjudicate whether the said minor, Lula May, has an interest in said estate . . . and one of said shares to the said Lula A. Bule and her adopted minor child, Lula.”

Guardian ad litem was appointed for the minors, including Lula May Browning Bule, and answered, submitting the interest of the minors to the protection of the court, and praying that the allegations of the bill be required to 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 Ms wife, and as such adopted child inherited one-half of the estate and lands in Mississippi of Church W. Buie, and in the decree of partition set apart one of the four shares to Lula A. Bule and her adopted child, Lula May Buie. From this decree of the chancery court in the partition proceedings, cause No. 1100, there was never any appeal, and the right of appeal is barred by the statute of limitations. Church W. Buie died intestate on the 7th day of February, 1903, and the infant, Lula May Browning Buie, died on the 29th day of November, 1905. Mrs. Lula A. Buie, after the death of her husband, Church W. Buie, married the appellant, J. B. Fisher, who claims all the land as the only heir of Ms wife, Lula A. Buie Fisher, who had died since the death of Lula May Browning Bule, and the appellant claims that when the child died, it had no interest in the lands of Church W. Bule, and inherited nothing from Mm, but that if it did inherit an interest in the lands of Church W. Buie, that upon the child’s death this land descended to its adopted mother, Lula A. Buie, and at her death descended to him, appellant. The bill in the present case was filed by ap-pellees, claiming to be the brothers and sisters by the blood of Lula May Browning Bule, and claiming that as the adopted child-of Church W. Buie she inherited half of Ms lands upon his death, and upon the death of Lula May Browning Buie the said lands descended to them as brother and sisters by blood, and did not descend to its adopted mother, Lula A. Bule, and a decree made for appellees is appealed from to this court.

There are many questions in the case, and some of them are of very great importance and are of first impression in this court, and we have carefully and laboriously considered the same.

The statutes of descent and distribution in Mississippi mate no provision for the descent of the property of adopted children. There is no law in Mississippi which gives the right of inheritance to an adopted child, except section 542 of the Code of 1906, which was copied from the previous Code of 1892, the only change being made in the statute was with reference to the court in which the petition for adoption should be filed. The principal questions presented by the record for solution are: First, was Lula May Browning Buie so adopted under the laws of Kentucky as to make her capable of inheriting the lands of Church W. Buie in Mississippi? Second, is Mississippi bound by the law of comity to recognize the status of adoption of a child, which status is created in Kentucky, and give effect to it, and to the legal rights of that status in Kentucky here in Mississippi, to the extent of holding that the child has capacity to inherit lands located in Mississippi? Third, if the second proposition is answered hy the court in the negative, then is Mrs. Lula A. Bule and those in privity with her and claiming under her precluded, or estopped, by the decree of the chancery court made in cause No. 1100, which adjudicated that the child was adopted in Kentucky, and by virtue of that adoption it had capacity to inherit lands in Mississippi? Fourth, assuming that the child was legally adopted in Kentucky, and that the decree in cause No. 1100 was res judicata, then whether or not on the death of the child the property descended to its blood relatives, strangers to the Rule family, or to its adoptive mother, Mrs. Lula A. Rule.

There can be no dispute about the fact, we think, that under the laws of Kentucky, Lula May Browning Rule was so adopted as to be capable of inheriting anything that Church W. Rule owned in the state of Kentucky. In Mississippi, unlike in the state of Kentucky, under this special act of the general assembly of Kentucky, a child may be partially adopted, or it may be completely adopted, but under the laws of the state of Mississippi it only inherits and gets those benefits and rights which are specifically «given to it in the petition required in adoption proceedings, and in the decree of the court in response to it.

There can be no dispute that the descent of lands is governed by the lex rei sitae, and that the lands in Mississippi must descend according to the laws of Mississippi, and we, therefore, hold that the lands of Church W. Rule in this state upon his death without natural children descended to his wife, Lula A. Rule, and no interest in it descended to Lula May Browning Rule.

There are very many respectable authorities holding that adoption in one state confers no right of inheritance to lands in another state, and that inasmuch as adoption was unknown to the common law, and it being purely a statutory right, those statutes have no extraterritorial effect. See Smith v. Deers, Adm’rs., 34 Pa. 126, 75 Am. Dec. 641; Doe v. Varnell, 6 Varn & C., 438, 6 Bing. N. C. 385; Linger v. Linger, 45 Ala. 410; Barnum v. Barnum, 42 Md. 307; Beauchamp v. Bertig, 90 Ark. 351, 119 S. W. 75, 23 L. R. A. (N. S.) 659; Brown v. Finley, 157 Ala. 424, 47 So. 577, 21 L. R. A. (N. S.) 679, 131 Am. St. Rep. 68, 16 Ann. Cas. 778; Shearer v. Weaver, 56 Iowa, 578, 9 N. W. 907.

We recognize that the weight of authority and the 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 created by the laws of the state which are in harmony with 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. Buie, 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 subject are not inconsistent with or opposed to the laws or public policy of this state on the same subject.

We repeat that under the law of comity we are not bound to recognize the rights flowing from the status created in Kentucky if its laws on the subject of adoption and the rights flowing from it are inconsistent with our own laws on that subject.

We do not believe, however, that this child was capaci-tated 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. Its status as an adopted child of Mr. and Mrs. Buie may be recognized here without recognizing its capacity to inherit lands, which is a wholly different thing. Under the charter of the Louisville Orphans’ Home the adoption was a complete adoption, or no adoption at all, whilst in Mississippi, there may be an adoption without the right to inherit lands, and without the right of heirship at all. Again, the laws of Mississippi require the consent of the mother and father, or the guardian, to the adoption, and any kind of an adoption requires the solemn sanction of a decree of the chancery court. No such thing is known to the laws of Mississippi as adoption by contract, nor can it be done by special act of the legislature of Mississippi, by reason of section 90' of our Constitution. The proceedings for adoption followed in Kentucky by the contract, etc., if pursued in Mississippi, would undoubtedly be held to be null and void, and before a child adopted even in Mississippi can inherit lands here, the jurisdictional fact must be asserted in the petition that heirship is one of the benefits to he conferred by adoption. See Beaver v. Crump, 76 Miss. 36, 23 So. 432.

Our own court in this case, in construing section 542 of the Code of 1906, said:

“This statute is wholly unlike those of most of the other states of the Union and is similar in some respects to those of only two other states, so far as we have been able to ascertain.”

And in this case it was held that the adopted child could not inherit lands in this state unless heirship be one of the benefits proposed to be conferred by the petition filed for adoption.

“The adoption of this class carries with it only the specific gifts, grants, bequests, and benefits proposed in the petition.”

The only way to interpret the statute of descent and distribution in Mississippi by way of adoption is that the adoption shall be made in accordance with the laws of the state of Mississippi. This is the clear public policy of our state by its Constitution, laws, and decisions, and what could not be done in Mississippi directly, to create capacity to inherit lands here, could not be done in Mississippi indirectly, and if this contract or adoption would be void under the laws of the state of Mississippi, and- is inconsistent with our public policy, then capacity cannot be given to inherit lands here by this indirect proceeding in the state of Kentucky.

We hold that Mississippi would not be bound by any law of comity to give effect to this method of inheritance of lands here where the status of adoption was created by a state whose laws and public policy were so inconsistent and antagonistic to our own laws and Constitution, and we hold, therefore, that Lula May Browning Rule inherited nothing of the lands of Church W. Rule in Mississippi, by reason of her so-called adoption in Kentucky.

As to the third proposition, we are of opinion that the decree in cause No. 1100 was res adjudicata. Lula A. Rule was a complainant in this bill and Lula May Browning Rule was a defendant, and the complainant submitted her rights to the court for adjudication. There was a question as to whether Lula May Browning Rule inherited this property, and she was therefore a necessary and proper party. The court had jurisdiction of the subject-matter and the person, and its decree was therefore, we think, res adjudicata. We think the authorities are too uniform and too numerous to cite that a judgment of a court in a matter within its jurisdiction, however erroneous, is final and conclusive if not appealed from. The opinion of the chancellor and his decree in cause No. 1100 was clearly erroneous, and would unquestionably have been reversed had appeal been taken to this court, but Mrs. Lula A. Rule, the complainant and adopted mother of Lula May Browning Rule, did not appeal from this decree and accepted it as binding on her,' and we think that when she failed to appeal it was res adju-dicata, and estopped her and her privies from afterwards questioning it.

The fourth proposition, we think must be decided against appellant’s views. We cannot subscribe to the doctrine that an adoptive parent inherits from an adopted child to the exclusion of its blood relatives. We think that the property inherited by an adopted child goes to the child iu fee simple, and upon its death the property descends according to the law of descent and distribution of this state, which would be to its blood relatives. We are referred by counsel to the case of Humphries v. Davis, 100 Ind. 274, 50 Am. Rep. 788, decided by Judge Elliott, in which Judge Elliott holds that the adoptive parent inherits from an adopted child to the exclusion of the natural mother or blood relatives. The law on adoption of children is in derogation of the common law, and unless the statute of the state provides for descent and distribution from an adopted child to go to the adoptive relatives in preference to the natural relatives, we are of the opinion that the natural relatives or blood kin inherit in preference to the adoptive kin. The opinion in Humphries v. Davis follows the civil law. The civil law was pressed on this court by counsel in Beaver v. Crump, 76 Miss. 34, 23 So. 432, and this court refused to follow the civil law and adopt the views adopted by Judge Elliott in Humphries v. Davis, and we think that was the correct view, and therefore hold that the property upon the death of Lula May Browning Rule was inherited by her blood brothers and sisters, and that it did not go to her adoptive mother, Mrs. Lula A. Rule Fisher.

The case will therefore be affirmed.

'Affirmed.