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chusetts, although the original act was passed there in 1851 (chap. 324). It may, indeed, be considered as a theory first sanctioned by law in that state ; for, though Texas seems to have passed a law in 1850, it was not so extensive as this in its operation. Since 1851 quite a number of states have enacted laws on this subject; namely, all of the other New-England states, California, Georgia, Illinois, Iowa, Kansas, Michigan, Missouri, North Carolina, Ohio, Pennsylvania, Wisconsin, and possibly others. Several of these states have followed the legislation of Massachusetts very closely, and others have made various alterations. The most sweeping act, probably, is that of Ohio, in 1854, by which any one may appoint another to be an heir-at-law," and the rules of inheritance shall be the same between him and the relations by blood of the declarant as if born in lawful wedlock.” Some states neglect to state clearly the legal effect of such adoption ; others stipulate that in no case shall an adopting parent inherit from the adopted child, and that the children of the natural parents shall not become heirs to the child so adopted.
We believe that this theory of legal adoption is unknown to English law, and that it must be regarded as a most important innovation in the practice of Massachusetts. It was, as we are informed, originally passed as a remedy for the distressing cases arising under the custom of adopting children, which was then increasing rapidly in that state, through the efforts of foundling societies. A man, having adopted, educated, and reared a child, with tastes and habits only comporting with a competence in the future, would sometimes die intestate, leaving the child unprovided for. Evidently, in such a case, the adoption was an injury rather than a benefit to the child. But, in remedying this evil, may not this legislation have gone too far? Probably all the good desired would have been obtained had the act provided that, if the adoptive father died intestate, the adopted child should inherit any property of which the father might have disposed hy will. This would have covered the usual cases of the disposal of such property as the father had himself accumulated or acquired free of restraint.
The statute of Massachusetts, however, makes but two restrictions; namely, that (1) an adopted child shall not take property expressly limited to the heirs of the body of the adopting parents ;
(2) nor property from the lineal or collateral kindred of such parents by right of representation. I
The court has already decided that the first exception is to be construed literally according to the technical meaning of the words, “ heirs of the body.” Cases under it will seldom arise, as this is not a customary mode of devise in this state.
But may we not infer that the other exception will be construed with equal strictness, and limited to cases in which the exact position occurs? In the Massachusetts Statute of Distribution (Gen. Stat. c. 91, SS 6, 7) this phrase, of persons taking
by right of representation,” is used, and many wills are drawn employing the same phraseology. Sect. 12 defines the phrase in terms as meaning “ when the descendants of a deceased heir take the same share or right in the estate of another person
that their parent would have taken if living.” Does not this, therefore, become a technical phrase, liable to be construed as strictly as that of “heirs of the body”? To illustrate : A. gives a lifeestate to his widow, remainder to his children, the issue of any deceased child to take by right of representation. Here, if any child had adopted a child, and died before the widow deceased, the adopted child would not take. But if the devise was to A.’s children for life, and after their deaths to their children, then their adopted children would be let in. Yet, in this case, much of the testator's estate might pass to alien heirs by means of this process of adoption.
Again, this statute creates a contingency not before recognized, in that a man or woman may die unmarried, and yet leave lawful children. In many wills the phrase is used, “ to A., and if he die unmarried and without lawful issue,” then to B. But when these two terms become incompatible, which shall prevail ? Will it not probably be held that the leaving lawful issue is the more important?
1 Instead of adopted children being prohibited from taking by right of representation, they shouid be allowed to do so, where the estate devolving upon the parent, had he lived, would have been a fee-simple. If the property would have been at his absolute disposal, then, so far as the lineal or collateral kindred are concerned, he ought to be able to leave it to an adopted child without a will as well as by one. The fact of his dying at one date or another involves no principle. On this point, therefore, the statute under discussion makes an exception against its own manifest intention.
So, again, this statute impinges on the rights of minors and guardians. Reasoning from analogy, it may be said that whoever is capable of lawfully marrying and begetting children should be legally capable of adopting a child. But this might establish the age of consent as the limit of the time at which adoptions could begin to be made. Is a minor under guardianship necessarily prohibited from adopting a child without his guardian's consent? The question next arises as to what persons inay be adopted. By the statute of Massachusetts, any person may adopt any other person, if the Probate Court is satisfied “that it is proper such adoption should take effect.” But the main guide of that court might be in the subsequent words, that, " for all legal consequences of the natural relation of parent and child, the adopted child is to be deemed to be born to the adoptive parents in lawful wedlock.” Would this prevent a man from adopting his wife ? Would it prevent the adopted child from marrying a near relative of the adopted parent so far as now prohibited by our statutes ? Clearly it cannot be urged that a man must not adopt a person whom he cannot marry; for he might properly adopt granddaughters, step-daughters, daughters-in-law, or nieces, and possibly an aunt.
Further, it may be urged that, by adopting an adult, a lifetenant may acquire the power to bargain beforehand for a disposal of the remainder in a mode entirely at variance with the desires of the devisor. He may stipulate that the adopted child shall give the greater portion to the widow or other nominee of the parent. So, in other cases, a sickly child may be adopted with the deliberate intention of profiting by the death of the child in the parent's lifetime. So in regard to estates by curtesy, does an adoption fulfil the terms by which that estate is created ?
In other states, after an adoption, the new parents cannot inherit from the adopted child ; but this salutary restraint does not seem to form part of the law as it stands in Massachusetts.
The statute also seems to be silent as to the position of the natural relatives of the child. In other states they cannot inherit from him property obtained by the adoption. But here there seems to be no such limitation, and the nearest heirs of an adopted child may be of his natural kindred. Sect. 9, indeed, of Mass. Stat. chap. 310, Acts of 1871, attempts to deal with this problem, but hardly explicitly enough.
Undoubtedly, many of the above suggestions may seem fanciful; but yet cases may happen under each division, and the courts may be called upon to decide them. It is not easy to find a method of so wording bequests as to avoid with certainty the unintentional diversion of property. If a testator expressly undertakes to exclude adopted grandchildren, will it not be held that the legislature has taken away his power to do so ? 1
It would seem, then, as if the only remainders exempted are those strictly in fee-tail, and such as are determined by the death of the intended recipient. That is, if a man wishes to leave property to be divided after the expiration of a life-estate, -as, for example, among his grandchildren, — he must devise it to the heirs of the body, in which case only the oldest grandson will take, to the exclusion of his brothers and sisters, and with the other peculiarities of such a devise; or he must run the risk that the life-tenants may, by adoption, send his property through channels alien to his blood and totally different from his intention.
Surely, then, it is time that the legislature should examine the subject, and decide whether it is for the public interest thus to disturb our whole system of devising property. It is impossible yet to comprehend the damage already done during the twentythree years in which this law has been in force in Massachusetts. It is certainly wise to consider the matter carefully, and to understand the existing law. If it is to continue, too great publicity cannot be given to the fact, in order that testators may frame their wills understandingly. But, even in this case, some alterations are certainly proper. If the only desire is to protect the rights of adopted children in property acquired by the parents, then a new and very different section should be substituted for sections eight and nine of the Act of 1871, now in force in that state.
1 Thus the statute says, “A child or person so adopted shall be deemed, for the purpose of inheritance, and all other legal consequences of the natural relation of parent and child, to be the child of the parent or parents by adoption, as if born to them in lawful wedlock, except,” &c. It is clear that a testator may devise to A. for life, and, at his death, to his lawful children. Here the adopted child takes. The testator may devise so as to exclude certain of the children; but can it be done by a devise to the grandchildren, excluding expressly all which became such by adoption?. A certain analogy seems to exist between this case and others where the identity of qualifications are settled by the superior authority. Thus the United States declare the privileges of citizens as equal, so that, in the words of the Supreme Court, in Woodruff y. Parham, 8 Wall. 140, an attempt to deprive the citizens of
other states of any privilege or immunity possessed by citizens of Alabama, by & law having such operation, would render the law void."
In Massachusetts, a case has been decided, Nourse v. Merriam, 8 Cush. 11, which comes quite near to the supposed one. One Joseph Houghton undertook, by will, to give $12,000 to the town of Bolton, to establish a school for the benefit of the inhabitants, excepting nine persons named and their descendants, who were to be excluded from attending said school for the term of one hundred years. The case having arisen on the legality of this exclusion, the school having been duly established, the Supreme Court decided that this part was void, " because it is repugnant to the nature of the grant; in violation of the fundamental principles of equality upon which the rights and privileges, as well as the duties and burdens, of citizens of towns are regulated; contrary to good morals and public policy.”
May it not then be argued that the “public policy” of Massachusetts, as shown by the statute, is that adopted children are to stand in the place of real children born in lawful wedlock; and that where a testator attempts to exclude adopted grandchildren, simply for the reason that they are adopted, from benefits which would have resulted to them if born of certain parents in lawful wedlock, his attempt may be pronounced void, as “contrary to good morals and public policy?” It would be presumptuous in us to attempt to answer the question definitely ; but, on the other hand, is there not at least such a doubt thrown over the subject, that a lawyer would hesitate to advise his client that a devise of a remainder to lawful children, excluding all adopted children, would be perfectly safe and valid? Our suggestions are confined to pointing out the dangers which may have arisen under a statute couched in unnecessarily vague terms.