Drake v. Drake , 328 Mo. 966 ( 1931 )

In this State the power to create artificially the status of parent and child, to which the law will attach the same incidents, rights, privileges, duties and obligations it attaches to the status growing out of the natural relation, does not exist in the absence of an express statute conferring it. This, because "adoption" was unknown to the common law. For nearly a hundred years there was a statute in force in this State which provided that any person might adopt any child, as his or her heir, by deed duly acknowledged and recorded; and that the child so adopted should have and enjoy all the rights and privileges as against the person executing the deed of adoption, as a child has by law against the lawful parents. [Secs. 1671, 1673, R.S. 1909.] There have been a number of cases in which this court has approved decrees in equity decreeing the status of parent and child through adoption. But in every instance the decision, in its final analysis, was bottomed on the existence of the statute just referred to. Two cases will illustrate: Lynn v. Hockaday, 162 Mo. 111, and Holloway v. Jones, 246 S.W. 587. In the first (p. 125), it is said:

"And as there was no common law adoption the argument is that it must be done as the statute requires, or it cannot be done at all. But since the statute has made the adoption of a childlawful, the law, for the same reasons that it sometimes enforces oral contracts affecting real estate, will not allow the mere failure of one party to do his duty to work an irreparable wrong to one who has fully performed his part."

In the second (p. 590):

"While with us it is a statutory right, it is not to be considered as an infringement upon the natural rights of individuals, but must be regarded, like the statutes which regulate the distribution of the estates of individuals, as a declaration of governmental policy in a matter of purely legislative cognizance, to be construed with reference to the intention, object, and purpose of the Legislature.

"For the purposes of this case it matters little whether we regard the act of adoption as a status voluntarily assumed with the parental duties and burdens implied by the statute with the corresponding benefits inuring to the adopted child (R.S. 1899, Sec. 5248), or as a contract of which the child is the beneficiary."

These cases could not have been written as they were had there been no statute conferring upon individuals the right to adopt children by deed or contract. And so with all the other cases cited in the majority opinion, the decisions in which are based, it is said, on equitable principles. They all assume, in view of the statute, the competency of the alleged adoptive parent to create by contract the status of parent and child. But in 1917 (Laws 1917, p. 193) the Legislature repealed outright the adoption statute above referred to and in lien of it enacted one providing for the adoption of children through and by means of an elaborate judicial proceeding. In so doing it withdrew from the realm of contract the creation of the status of parent and child. The majority opinion affirms that this action on the part of the Legislature is without significance and that courts of equity can, and will, still enforce contracts, or quasi-contracts, for adoption.

What has been said is with reference to the legal status of parent and child, from which flows, among others, the right of inheritance. This cannot now be created by contract in this State. Contracts attempting to create such status should not be confused with contracts wherein one person, upon a valuable consideration, agrees that upon his death his property shall go to another as though his heir, or that he will his property to such other. Contracts of this latter character can of course be enforced on common law principles. [Gupton v. Gupton,47 Mo. 403.] It has been held that, though a contract wherein the proposed adoptive parent agreed that if the child would render to him all the duties of a child to its natural parents he would adopt the child and make him his heir was void as a contract toadopt, because not authorized by statute or because the authorizing statute was not substantially complied with, yet it was valid and enforceable to the extent that it dealt with the disposition of property. [Sharkey v. McDermott, 91 Mo. 647, 4 S.W. 107; Healey v. Simpson, 113 Mo. 340, 20 S.W. 881; Chehak v. Battles, 183 Iowa 107; Webb v. McIntosh, 159 N.W. (Ia.) 637; In re Darling's Estate, 159 Pac. (Calif.) 606.] In the case at bar there was some evidence tending to show that Drake promised to adopt the boy Arnold, but not an iota (in so far as the principal opinion discloses) that he promised to make him his heir. It might be suggested that the parties understood and intended that adoption should include the right of inheritance, but certainly such a term cannot be implied in a contract where there is no attempt to comply with some statute which makes heirship a consequence of adoption. For adoption does not confer on the child any right of inheritance unless expressly so provided in the statute authorizing it. [Hockaday v. Lynn, 200 Mo. 456, 98 S.W. 585; In re Darling's Estate, supra.]

Where one upon a valuable consideration agrees that if he dies intestate his property shall go to another, the latter takes under the contract and not by inheritance. The right to take property by descent is a creation of the law. [Carroll's Estate,219 Pa. 440.] In this State the right is created by our Statute of Descents and Distributions. With respect to that statute, it is said in Hockaday v. Lynn, pp. 466-7, that, barring the one incident of husband and wife's rights by marriage, it is built on, and around, the idea of blood relation, and that consanguinity is so fundamental in the statute that it may only be ignored by construction where courts are forced to do so, either by the terms of express statute or by inexorable implication. There is but one instance where our statute law, other than the single exception found in the Statute of Descents and Distributions heretofore noted, ignores consanguinity in creating the right to inherit. That is the present statute of adoption. It provides:

"When a child is adopted in accordance with the provisions ofthis article, . . . said . . . child shall be capable of inheriting of said parents as fully as though born to them in lawful wedlock."

Arnold Drake was not a blood relative of James G. Drake, nor was he ever adopted by James G. Drake in accordance with the provisions of the statute: it follows that he could not inherit the latter's property.

As the alleged oral contract made no reference to the disposition of James G. Drake's lands or other property at his death, and as Arnold Drake could not inherit from him, it is clear that the latter has no title to the land sought to be partitioned in this proceeding.

For the reasons herein set forth I am unable to give my concurrence to the majority opinion. White, J., concurs in these views.