Willson v. Carmichael

665 S.W.2d 52, 1984 Mo. App. LEXIS 3487
CourtMissouri Court of Appeals
DecidedJanuary 10, 1984
DocketNo. WD 34782
StatusPublished

This text of 665 S.W.2d 52 (Willson v. Carmichael) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Willson v. Carmichael, 665 S.W.2d 52, 1984 Mo. App. LEXIS 3487 (Mo. Ct. App. 1984).

Opinion

PRITCHARD, Presiding Judge.

The issue is whether a statute, § 5246 RS. 1899, controlling the effect of the adoption by deed of Walter S. Brown, deceased, determines what person is his heir, or whether subsequently enacted adoption statutes govern the descent and distribu[53]*53tion of his estate, said in the petition for declaratory judgment to be $24,056.46.

The facts stipulated by the parties are these: Walter S. Brown and his sister, Martha S. Brown, were the natural children of Charles T. and Elizabeth McQuillen Brown, who were married in Missouri some time prior to 1896. Walter was born December 15, 1896, and Martha was born March 15, 1899, both at Dover, Missouri. Shortly after Martha’s birth, Elizabeth died and Charles T. placed both children for adoption. Charles T. died prior to 1931. Martha was adopted by deed of adoption by George W. Eddings on October 23, 1899, and Walter was adopted by deed of adoption by Otto A. Carmichael and Hattie B. Carmichael on October 23, 1901. Both deeds were duly recorded in Ray County, Missouri. No other children were born or adopted by Charles T. and Elizabeth. Martha S. Brown Eddings Willson died January 24, 1978, a widow, leaving one child, appellant, Donald E. Willson, she not having had any other children, natural or adopted. Walter died intestate, a widower, without children, natural or adopted, on January 30, 1980.

The Carmichaels had these children who survived Walter S. Brown: Robert Carmichael, Harold Carmichael, Alvin Carmichael; Herbert Garland Carmichael; Irene Carmichael Knox, Bernice Carmichael Sin-nett; Delia Carmichael Fizer; Goldie Carmichael Bordon; and Gladys Carmichael Cline. Three other children were born but did not survive Walter: Lesta May Carmichael Derstler, deceased, leaving Frank Derstler; Hazel Carmichael Bales, deceased, leaving George Anne Blystone, Ronald K. Bales, Elva Fern Lankford, and Beverly Ross; Melvin Carmichael, deceased, leaving Kenneth G. Carmichael, Melvin 0. Carmichael, Jr., Donald L. Carmichael, Robert I. Carmichael, Dolores Lucille McFee, Marilyn Sue Beissenberg, Melva Jean Barb and Betty Lou Price. The trial court declared that these persons, respondents here, were Walter’s living brothers and sisters by adoption, and the children of his deceased adoptive brothers and sisters, and were his sole and only heirs.

Appellant, Donald E. Willson, contends that he is the sole surviving blood relative of Walter S. Brown and therefore he is entitled to the entire estate.

Respondents contend that the statutory enactments of this state have effectively removed Walter from the bloodline of his nephew, Donald E. Willson, in that subsequent to Walter’s adoption by deed in 1901, the adoption statutes were modified, thereby removing him from his natural bloodline and placing him within the bloodline of the Carmichaels.

By Point I, in essence, appellant contends that the current adoption statute, § 453.-150, RSMo. 1978, was erroneously found by the trial court to have validly impaired his vested contractual rights created by the deed of adoption under the 1899 statute. He says that because neither of the parties to the deed of adoption, Walter S. Brown himself, nor his blood relatives, consented to the (statutory) change in contractual heirship, the legislation had no effect upon the contract rights; that the trial court should have so ruled and should have held that appellant was the sole heir of Walter S. Brown, deceased.

It should be noted that the trial court’s judgment did not expressly hold that the deed of adoption created a vested contractual right, or that § 453.150 could validly impair appellant’s rights. What the trial court did hold was that Section 453.150 was not unconstitutional, and that Walter’s heirs must be determined under the statute of descent and distribution in effect at the time of his death, § 474.010, on January 30, 1980. Appellant’s Point I will therefore be considered merely as argument for reversal of the judgment.

Section 5248, RS 1899, declared the effect of the adoption by deed statute, § 5246, supra: “From the time of the filing of the deed with the Recorder, the child or children adopted shall have the same right against the person or persons who executed the same, for support and maintenance and for proper and humane treatment, as the child has, by law, against [54]*54lawful parents; and such adopted child shall have, in all respects, and enjoy all such rights and privileges as against the persons executing the Deed of Adoption. This provision shall not extend to other parties, but is wholly confined to the parties executing the Deed of Adoption.” As appellant says, these 1899 statutes created a contractual right between adoptive parents and the adopted child under the early cases. “The status or relation of an adopted heir is a lawful one, since the law sanctions and provides a method for its creation; but the relation is not the creature of the law, but of the deed of adoption; a child by adoption is, in a limited sense, made an heir, not by the law, but by contract evidenced by deed.” Reinders v. Koppelman, 94 Mo. 338, 7 S.W. 288, 290 (1888); Hockaday v. Lynn, 200 Mo. 456, 98 S.W. 585, 589 (1906), holding, “... [B]y the event of adoption, he (the adopted child) has, ex contractu, the right of inheritance from his adoptive parent.” [The Hockaday case held, however, that the plaintiff was not entitled to inherit from the intestate estate of the adoptive parent’s brother, i.e. a collateral kindred of the adoptive parent.]; and Weber v. Griffiths, 349 Mo. 145, 159 S.W.2d 670, 674-675 (1941). The cases have also held that the adoption by deed statutes did not prevent an adoptive child from inheriting from his natural parents. See the dictum in Clarkson v. Hatton, 143 Mo. 47, 44 S.W. 761, 762 (1898), “The child becomes, in a legal sense, the child of the adopting parents, and at the same time remains the child of its natural parents, and is not deprived of its rights of inheritance from them unless expressly so provided by statute.”; Shepherd v. Murphy, 332 Mo. 1176, 61 S.W.2d 746, 748[3, 4] (1933), stating “Prior to that enactment (the adoption statute of 1917), our statute provided that any person desiring to adopt a child ‘as his or her heir’ might do so by deed; i.e., by contract. On the death of an adopted child, intestate, without descen-tants, his or her estate went to his or her relatives by blood.”; Crawford v. Arends, 351 Mo. 1100, 176 S.W.2d 1, 5[7] (banc 1943); and Rumans v. Lighthizer, 363 Mo. 125, 249 S.W.2d 397, 399[2] (1952).

Appellant seizes upon the foregoing cases for his contention that he was Walter’s sole blood relative, and entitled to inherit his intestate estate. His contentions, however, are answered by subsequent legislative enactments which completely changed the status of an adopted child as it existed under prior adoption by deed statutes.

In 1917, the legislature enacted new adoption statutes, Laws 1917, p. 194, § 1671; § 14079 RSMo. 1929, which provided, “When a child is adopted in accordance with the provisions of this article, all legal relationship, and all rights and duties between such child and its natural parents, shall cease and determine.

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Related

Rumans Ex Rel. Jackson v. Lighthizer
249 S.W.2d 397 (Supreme Court of Missouri, 1952)
Commerce Trust Company v. Weed
318 S.W.2d 289 (Supreme Court of Missouri, 1958)
Robertson v. Cornett
225 S.W.2d 780 (Supreme Court of Missouri, 1949)
Crawford v. Arends
176 S.W.2d 1 (Supreme Court of Missouri, 1943)
St. Louis Union Trust Co. v. Hill
76 S.W.2d 685 (Supreme Court of Missouri, 1934)
McIntyre v. Hardesty
149 S.W.2d 334 (Supreme Court of Missouri, 1941)
Weber v. Griffiths
159 S.W.2d 670 (Supreme Court of Missouri, 1941)
Shepherd v. Murphy
61 S.W.2d 746 (Supreme Court of Missouri, 1933)
Reinders v. Koppelman
94 Mo. 338 (Supreme Court of Missouri, 1887)
Clarkson v. Hatton
39 L.R.A. 748 (Supreme Court of Missouri, 1898)
Hockaday v. Lynn
98 S.W. 585 (Supreme Court of Missouri, 1906)

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Bluebook (online)
665 S.W.2d 52, 1984 Mo. App. LEXIS 3487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willson-v-carmichael-moctapp-1984.