« PreviousContinue »
one-third, and the son received the rest. There was no probability that the trust was made by order of the father, though, as both Curtis and Clapp were dead when the suit was brought, no direct evidence was obtainable.
In 1855, Robert Roberts married Helen M. Brown, and on the 17th July, 1855, Mr. and Mrs. Roberts and his mother made an indenture with Nathaniel Curtis, Jr., by which the Roberts assigned their interests in the existing trust to Curtis, in trust, to pay the income to the said Helen M. Roberts during her life, with a provision for the reversion at her death.
Again, on the 27th March, 1865, Mrs. Elizabeth Roberts, the mother, having died, Robert Roberts undertook, by an indenture, to ratify and confirm the preceding indenture.
On the 3d April, 1865, by a decree of the Probate Court for Norfolk, the said Robert and Helen M. Roberts were allowed and authorized “to adopt Ada Parker, a child under the age of fourteen years, child of Charles H. Parker, late of Fitzwilliam, in the county of Cheshire, deceased, and his wife deceased," and her name was changed to Ada Parker Roberts.
On the same day Robert Roberts made his will, giving the income of said trust to his wife Helen M. during her life, and at her death one-half of said income to his daughter by adoption," Ada Parker Roberts, and the other half to Helen S. Brown and Susan H. Brown, children of Henry S. Brown, of Milwaukie. By the same will he disposed of his other property, about which there was no dispute.
Robert Roberts died in April, 1872, leaving a widow, Helen M., but no issue or child, except the adopted daughter, Ada Parker Roberts, who is still living.
In the litigation which ensued after Roberts' death several different interests were involved. If the first contract, the one with the Insurance Company, was irrevocable and complete, the question whether Ada Parker Roberts was such a child of Robert as was therein contemplated, overshadowed all others.
In case she was not, the claim of the widow and the adopted daughter rested partly, and that of the two Browns rested solely, on the right of Roberts to make a will which really revoked the original trust.
Again, the heirs-at-law of Robert Roberts and the heirs-of-law of his mother, Elizabeth Roberts, presented their claims, holding
that the trust-deed was irrevocable, and that Ada Parker Roberts did not take under it. But in this class divisions occurred. The heirs-at-law of Robert Roberts at the time of his death, his wife being excluded, were his first cousins ; namely, the children of Mary Clark, his only aunt on the paternal side (he having no paternal uncle), and the children of Ephraim Harlow, one of his mother's brothers. But it was contended that Roberts left, at his death, an estate amounting to half of the capital sum, which, if Ada was not such a child as was meant under the contract, was to go to his heirs-at-law; and, he dying intestate, the widow Helen M. would take one-half of this half, or if the child Ada was considered in another view, dehors the contract, as legally his, one-third; Ada taking two-thirds. And this claim would equally embrace any portion descending to him as heir-at-law of his mother at her death. It was also shown that the heirs-at-law of Mrs. Elizabeth Roberts, the mother, excluding the son, were not the same at the time of her death as they were at the time of her son's death.
The questions, therefore, were,
First. Was the deed of trust irrevocable ? Since, if so, Roberts' subsequent deed and will were invalid.
Second. If the trust-deed was, paramount, was Ada Parker Roberts such a child as was therein intended, and therefore the person who alone could take all the principal sum?
Third. Under the trust, in case of there being no child, and division being made between the heirs-at-law of Elizabeth and of Robert, — a. Did Roberts' widow, Helen, take one-half of his share
on the ground of his dying intestate ; and, also, was Ada his issue, and so entitled to two-thirds, the widow
taking one-third in this case ? b. Or, were his cousins his heirs-at-law ? Fourth. Under the trust-deed, by heirs-at-law of Elizabeth should there be understood those at her death, or those at the time when the distribution of the principal fund should be ordered? If at her death, also, a. Should her son be deemed the sole heir, and did he acquire
an interest which would pass to his widow, or widow
and issue? and,
As the Supreme Court decided the first two questions in the affirmative, the other questions were not considered. It declared that, in Massachusetts, the law was well settled, that a voluntary settlement fairly made could not be revoked, unless a power of revocation was reserved; and that, though a court of equity would not aid in perfecting such a contract while executory, it would enforce an executed contract. Hence the terms of this trust were to be fulfilled, and Robert's second indenture was invalid, as was his will so far as it affected this trust-fund.
The important question was therefore, whether, since Roberts had no legal issue born of his body, his adopted daughter fulfilled the requirements of the trust. Certain technical objections were made to the form of adoption used by Roberts, but the court decided that he had complied with the statute. The opinion then proceeds as follows:
“ We are of opinion, therefore, that the adoption was valid, and the next inquiry is, What are the rights of the adopted daughter under her father's settlement ?
“The statute provides that 'A child so adopted shall be deemed, for the purposes of inheritance by such child and all other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as if he had been born to them in lawful wedlock; except that he shall not be capable of taking property expressly limited to the heirs of the body or bodies of the parents by adoption, nor property from the lineal or collateral kindred of such parents by right of representation. Gen. Stat. c. 110, $ 7.
"This language is very broad and comprehensive, and it was manifestly the intention of the legislature to provide that, with the exceptions named, the adopted child should, in the words of the sixth section, to all legal intents and purposes, be the child of the petitioner.'
“The adopted child in this case, therefore, in construing her father's settlement, must be regarded in the light of a child born in lawful wedlock, unless the property disposed of by the settlement falls within one of the exceptions.
“ It is true that, if she takes under the settlement, the property does not come to her by inheritance, but it comes to her as one of the legal consequences and incidents of the natural relation of parents and children. Does it fall within either exception of the statute? It cannot be claimed that it falls within the last exception as property from the kindred of the parents by right of representation.
“The other exception is that she cannot take property expressly limited to the heirs of the body or bodies of the parents by adoption. The
term ‘heir of the body' is a well-established technical term, with which the words children’ or issue' or “lawful issue' are not synonymous. The rule of construction enjoined by our statutes is that technical words or phrases, which have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning, unless it is inconsistent with the manifest intent of the legislature or repugnant to the context. Gen. Stat. c. 3, § 7.
“ The language of the statute shows that the legislature intended to use the phrase “heirs of the body or bodies' in its primary technical sense. The terms of the settlement, above cited, do not limit the estate expressly to the heirs of the body' of Roberts; and the terms therein used, .child or children,' issue' and 'lawful issue,' are not equivalent terms, and do not lead to the same construction and legal result as would be reached if the estate was in direct words limited to the heirs of his body. We are therefore of opinion that the case does not fall within either of the exceptions of the statute, and that, as to the property in question, Ada Parker Roberts is to be deemed the child of Robert Roberts, the same as if she had been born to him in lawful wedlock. It follows that, in the contingency which has happened, she is, as such child, entitled to the whole of the principal fund.
“ It is argued that this statute is unconstitutional as applied to a settlement made before its passage, because it takes property from one person
1 Although the court does not define at this time the meaning of the phrase, heirs of the body,” it has been passed upon repeatedly. In Richardson v. Noyes, 2 Mass. 62, it was explained as follows: “In England, lands conveyed to a man and his heirs generally, descend to his eldest male issue; if to a man and the heirs of his body, they descend in the same manner. If lands here are conveyed in the same manner, in the former case they descend to all his children, and in the latter to his eldest male issue.” Thus the court decided, in 1806, that estates tail were a part of the law in Massachusetts, and were to follow the common-law definition. In Ide v. Ide, 5 Mass. 501, the same estate was recognized. In Hawley v. Northampton, 8 Mass. 38, the court fully explains, that, “in a devise to a man and to the heirs of his body, these last words are a limitation of an estate tail; and, if it descend from the devisee in tail, all the heirs of his body cannot take together, but only in succession, – the eldest son and his issue, then the second son and his issue, and so on.” Numerous other decisions might be cited, but one will, perhaps, suffice. In Hayward v. Howe, 12 Gray, 51, it was held that Rev. Stat. c. 59, § 9, abolishing the rule in Shelley's Case, “was not intended to prohibit or restrain the creation of estates tail, when the devise should be made by apt and sufficient words, according to the well-established rules of law.” Inasmuch as the tenant-in-tail has the power, by the statute of 1791, to bar all remainders by a simple deed, our courts, so far from trying to reject estates tail, seem rather to have gone to extremnes in order to bring estates within that category. The question may yet be, under the words of the statute of adoption, "expressly limited to heirs of the body,” to hold it possible to exclude the adopted child from inheritance in estates limited by words heretofore decided to be equivalent to that technical phrase.
and gives it to another. But, until the death of the settlor, it was uncertain what persons would take under the settlement, and no title ever vested in those who are now claiming as his heirs, or the heirs of his mother, against his adopted daughter. The statute is an important one, general in its application, and passed by the legislature as the guardians of the public interests, and is to be upheld, unless it clearly exceeds their powers. Much more extensive powers have been exercised, without question, in the enactment of statutes affecting tenures and the interests of persons unborn or having remote expectations. Such was the St. of 1791, c. 61, giving to tenants in tail the power to bar by deed the issue in tail; and the St. of 1804, c. 59, providing a method for barring remainders and reversions expectant on estates tail; and the St. of 1851, c. 14, § 1, for the barring of equitable estates tail. Clarke v. Cordis, 4 Allen, 466. An instance more nearly like the statute we are considering is found in the provisions first enacted in the revision of 1836, that an illegitimate child, if his parents intermarry, and his father acknowledge him, shall be considered as legitimate to all intents and purposes. Rev. Sts. c. 61, § 4; St. 1853, c. 253. And in Loring v. Thorndike, 5 Allen, 257, it was held that this statute gave to an illegitimate child the same rights which a child born in lawful wedlock would have under a will proved before the statute was passed. The fact that the statute, as one of its incidental effects, changes the descent and devolution of property, does not render it invalid, unless it defeats vested rights. As we have seen, in the contingency which has happened in this case, no rights adverse to the adopted daughter had vested in the heirs who now claim, and therefore none have been defeated or impaired.
“ It is also argued that the result we have reached is opposed to the intention of the settlor. But, as is often the case in deeds or wills providing for a remote future, he could have had no intentions as to the particular person who was to take. His general intention was that the property should go in the first instance to his children as a class. Whoever at his death fell within this class was within this general intention; and, as his adopted daughter is by law his child, she belongs to the class intended to take, and her rights cannot be defeated upon the assumption that he did not intend her to take.
“ The views we have taken render immaterial the other questions argued at the bar.
“ The result of the whole case is, that Ada Parker Roberts, as the only child of Robert Roberts the settlor, is entitled to receive the whole of the principal of the trust fund.
« Decree accordingly." This matter of the adoption of children, and the legal rights thereby conferred upon them, is now first adjudicated in Massa