HARLE et al. v. HARLE et al., 204 S.W. 317

GREENWOOD, J. The material facts showed that in 1879 Nathan Harle, who was then the husband of Gracie Ann Harle, and Freeman Slaughter, who was then the husband of Amanda Slaughter, acquired by purchase the 160 acres of land i'n controversy. By a marriage prior to that with Gracie Ann Harle KVithan Harle had three children named Bruff Harle, John Harle, and Amanda Slaughter. Under a partition between Nathan Harle and Freeman Slaughter, 40 acres of the land was set apart to Freeman Slaughter, and the remaining 120 acres was set apart to Nathan Harle.

Out of the 120 acres Nathan I-Iarle and Gracie Ann Harle conveyed 60 acres to John Harle. Gracie Ann Harle had no children, but she adopted, in compliance with the Texas statute, Mary Ann Richardson, who married Wash McGriff, and Wash McGriff and his three children by Mary Ann McGriff are termed herein the McGriff heirs. Mary Ann McGriff died intestate, and at a later date Gracie Ann Harle also died intestate. This suit was brought in the district court of Navarro county by Nathan Harle against Bruff Harle, John Harle, and Freeman Slaughter to try the title to the entire 160 acres of land.

The McGriff heirs and the children of Amanda Slaughter, deceased, intervened in the suit. On a verdict directed by the court Freeman Slaughter recovered the 40 acres, which had been partitioned to him, subject to the rights of the children of Amanda Slaughter; John Harle recovered the 60 acres, which had been conveyed to him; and Nathan Harle recovered. the remainder of the land sued for.

The Court of Civil Appeals affirmed the judgment of the trial court, save as to the McGriff heirs, and, with respect to them, that court reversed the judgment of the trial court and rendered judgment in their favor for an undivided half of the land adjudged below to Nathan Harle. 166 S. W. 674. Writs of error were granted the several applicants because this court was of the opinion that there was probable error in the judgment of the Court of Civil Appeals in favor of the McGriff heirs. The land in controversy, being a part of the community estate of Nathan Harle and Gracie Ann Harle, passed under

article 2469 of the Revised Statutes, on the dissolution of the marriage relation between Nathan Harle and Gracie Ann Harle by the latter’s death, to Nathan Piarle as survivor, unless descendants of a child or children of Gracie Ann Harle survived her. The Court of Civil Appeals concluded that the mother of the McGriff heirs, as the adopted heir of Gracie Ann Harle, acquired the legal status of a child, and.that hence the McGriff heirs were descendants of a child, within the meaning of

article 2469. It seems clear to us that the words “child” or “children of the deceased or their descendants,” as used in

article 2469, cannot be interpreted to include adopted heirs and their issue. For, as was said in Burgess v.

Hargrove, 64 Tex. 117: “The Revised Statutes require that ‘the ordinary signification shall be applied to words, except words of art or words connected with a particular trade or subject matter, when they shall have the signification attached to them by experts in such art or trade, or with reference to such subject-matter.’ The words ‘child or children’ are not technical terms to require the evidence of an expert to define them; and the subject-matter in reference to which they are used does not demand that they shall receive other than their ordinary signification.

That hardship may result from such construction is not for the courts, but for the Legislature, to take into consideration.” The ordinary signification of child is a male or female descendant in the first degree. As the mother of the McGriff heirs was not descended from Gracie Ann Harle, but from some other mother, she was not in fact a' child of Gracie Ann Harle, under the ordinary signification of the word child, and therefore the McGriff heirs were not in fact descendants of a child of Gracie Ann Harle. Cochren v. Cochren, 43 Tex. Civ. App. 259, 95 S. W. 732. In Morse v. Osborne, 75 N.

H. 487, 77 Atl. 403, 30 L. R. A. (N. S.) 914, Ann. Cas. 1912A, 324, an adopted person was held'not to be “issue” of his adopter, within the meaning of a statute of descent of New Hampshire, though the Supreme Court of that state gave to the word “issue” the meaning of “child, grandchild, or other lineal descendant.” The Supreme Court of Illinois reached a similar conclusion when it said in Keegan v.

Geraghty, 101 Ill. 40: “An adopted child is not a child in fact, nor is an adopted child, having the rights of a child, a child in fact.” The Supreme Court of Vermont was called upon to determine the status of one Amanda M. Pennock, who had been constituted by

an act of the Legislature “heir at law of John B. and Sally Dunbar * * * in as full and. perfect a manner as if she had been the daughter of the said John B. and Sally Dunbar horn in lawful wedlock,” and it was held that: “She is merely made heir at law of Mr. and Mrs. Dunbar, to share as their child. It is not enacted that she is their child, or that she is to be considered, and taken in law, to be their child. * * * We cannot go farther than the statute, which merely authorizes her to take directly as heir from Mr. and Mrs. Dunbar.” Moore v. Estate of Moore, 35 Vt. 101.

The same court, in construing another legislative enactment constituting John Chancey Chandler “heir at law” of John Bullock, declared: “It cannot be said that the act under and by virtue of which he [John Chancey Chandler] was adopted, made him the child or issue of John Bullock. The words ‘child’ or ‘issue’ are defined to mean progeny or offspring.” Stanley v. Chandler, 53 Vt. 624. As announced in Eckford v. Knox, 67 Tex. 200, 2 S.

W. 372, adoption under our statutes does not constitute the adopted person a member of the family of the adopter, and does not confer the privileges nor impose the duties which arise from the relation of parent and child, as was the case under the civil law, but, on the contrary, the complete effect of compliance with

article 1 is, as declared in

article 2, to put the adopted person in the same position with respect to succession to the estate of the adopter on his death as a child would occupy, except that as against a child born in lawful wedlock the adopted person cannot take more than one-fourth of the estate. It necessarily follows that adoption in Texas does not give the adopted person the legal status of a child. The opinion of Chief Justice Willie in Eck-ford v. Knox has been followed in the case of Walton, Tax Collector, v. Yturria, 204 S.

W. 315, this day decided by this court, wherein it was determined that an adopted person was not a direct lineal descendant of his adopter, and that such person did not acquire the status of a child of his adopter. The doctrine announced in Eckford v. Knox had previously been reaffirmed in Taylor v. Des-eve, 81 Tex. 249, 16 S. W. 1008. Under our construction of the statutes, we do not deny the adopted person any of “the rights and privileges, both in law and equity, of a legal heir of the party so adopting him,”" to which he is entitled under

article 2 B. S., but we do not extend the statute so as’ to confer rights and privileges in the estate of the adopter on others than the person adopted. The right to inherit from Grade Ann Harle was given to the person she adopted. When that person died before Grade Ann Harle, the latter’s estate could not pass to her. The adopted person acquired no right, through her adoption, to be represented by her heirs in the distribution of the adopter’s estate.

Eor it is the settled law in Texas that, when children of a deceased child inherit from a parent of such child, under our statutes of descent, they take, not through or by representation of the parent, but directly from the deceased. Chief Justice Gaines, in delivering the opinion in Powers v. Morrison, 88 Tex. 139, 30 S. W. 853, 28 L. B. A. 521, 53 Am. St. Rep. 738, said that the following is an accurate, terse, and fordble statement of the law, viz.: “The grandchildren of an intestate take by substitution, not through, but paramount to, their parent.

The law designates them as a person to take a title, derived not from the parent, but immediately from the intestate. The property never was in the parent, and consequently they did not inherit from him what he had not.”

Article 2466, B. S., appears to expressly forbid recognizing any right of inheritance in the McGriff heirs, they not being “children or lineal descendants of the intestate”; for the

article denies the right of inheritance to any persons whatsoever other than to children or lineal descendants of the intestate unless they are in being and unless they are also “capable in law to take as heirs” at the time of the death of the intestate, and we. have no statute conferring any right of inheritance in the estate of an adopter on the children or descendants of the adopted person. Yet “the right of succession in this state is the creature of statutory law.” Powers v. Morrison, 88 Tex. 137, 30 S. W. 852, 28 L. R. A. 521, 53 Am. St. Rep. 738.

There are decisions of other states upholding the right of children of an adopted person to inherit from the adopter. But, as pointed out in Bernero v. Goodwin, 184 S. W. 75, cited in behalf of-defendants in error, these decisions are in the main based on one of the two following propositions:

(1) That “under the civil law the children of an adopted child stood in the position of grandchildren of the adopting parent,” and “since adoption was a creature of the civil law and unknown to the common law, the courts will look to the civil law for aid in construing the respective statutes”; and (2) that the term “heir,” when used in an adoption statute, “implies representation, and that therefore upon the death of an adopted child her children succeeded to her rights as heirs of the adopting parent.” In our opinion, neither of these propositions should have controlling weight in construing our statutes.

As pointed out in Eck-ford v. Knox, the civil law doctrine was so modified by the terms of our adoption statute as to preclude giving children of an adopted person the status of grandchildren of the adopter. !Amd it would be utterly inconsistent with the principles enunciated in Powers v. Morrison to extend to the children of adopted persons, by means of representation, a right of inheritance in the estate of their parent’s adopter. We have considered the assignments of all parties, and find no error in the action of the district court or Court of Civil Appeals save as indicated above.

We fully appreciate the importance of this decision, and have given it commensurate consideration. The judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed. <fc=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes