ON MOTION FOR REHEARING. Respondent Marvin W. Leeper insists that the opinion is directly in conflict with St. Louis Union Trust Company v. Hill,336 Mo. 17 (En Banc), 76 S.W.2d 685, and Brock v. Dorman,339 Mo. 611, 98 S.W.2d 673. He contends that his rights are determined by the law at the date of his adoption and not at the date of the execution of the deed; that a contingent remainder was created by the deed and he was within the classification of those designated to take at the death of the life tenant; that the word "children" included adopted children; and that the old adoption statute has been superseded by the new statute which is controlling. He insists that, since by his adoption in 1934 he became the child of William F. Leeper and wife, as fully as though born to them in lawful wedlock, William F. Leeper could not and did not "die without children." Most of these matters were fully discussed in the opinion, but the case mentioned were not discussed, since they were not applicable to the facts before us.
The first case involved the construction of a will executed April 4, 1918. Testator died September 5, 1918. Both dates subsequent to the enactment in 1917 of our present adoption statutes, Secs. 14073-14081, Mo. Stat. Ann., pp. 822-828. In stating the consequences of adoption, Sec. 14079 provides: "Said child shall thereafter be deemed and held to be for every purpose, the child of its parent or parents by adoption, as fully as though born to them in lawful wedlock. Said child shall be entitled to proper support, nurture and care from said parents by adoption, and shall be capable of inheriting from, and as the child of said parents as fully as though born to them in lawful wedlock." An exception is provided where property is expressly limited to heirs of the body.
By the will under consideration in the case of St. Louis Union Trust Company v. Hill, supra, testator left a life estate in equal shares to all his children, with remainder to their heirs at law.
In 1929, testator's son, Frank W. Hill, Jr., and his wife, by decree of court under said statutes, adopted two children. Frank W. Hill, Jr., died shortly thereafter. The adopted children claimed as heirs at law of Frank W. Hill, Jr., and as such claimed to be entitled to take as remaindermen of Frank W. Hill, Jr., under the will of Frank W. Hill, Sr. The sisters of Frank W. Hill, Jr., claimed that their father intended by his will to limit remaindermen under the will to the heirs of his blood and not to strangers. The court said (336 Mo. 17, 76 S.W.2d 685, 687): "As to whether the appellants (the adopted sons of Frank W. Hill, Jr.), were his heirs at law at the time of his death depends upon the Statutes of Descent and Distribution in force and effect at the time of his death, and the statutes on adoption that were in force at the time the appellants were *Page 453 adopted by Frank W. Hill Jr. . . . These appellants were made the heirs at law of Frank W. Hill, Jr., not by contract but by complying with the adoption statutes. . . . By decree of court they were declared to be his adopted children, and it must follow that they were the heirs at law of their adopting father. . . .This will was executed April 4, 1918, and at that time thetestator is presumed to have known the adoption statutes now inforce and effect as passed by the 1917 Legislature." (Italics ours.)
The court then reviewed in detail the 1917 adoption statutes and reached the conclusion that appellants (the adopted children) were entitled to take unless by the will the property was expressly limited to the heirs of the body of Frank W. Hill, Jr. The court then said: "With this definition (of `expressly' a term used in Sec. 14079) in mind we find nothing in the will that shows that the testator intended to leave his property to the heirs of the body of Frank W. Hill, Jr. We believe under the facts in this case the appellants would have been included, even if the words `heirs at law' were used interchangeably with the word `child' or `grandchild' . . . If he (testator) did not want an adopted child to have any of his property he could have easily provided for such a contingency in his will by expresslylimiting his property to go to the bodily heirs of his son, but he did not do so."
The case is not applicable here, since at the time the deed was written in 1900 there was no such adoption statute. Section 5248, R.S. 1899, was then in force and effect. It contained no such provisions, but only gave the adopted child "rights and privileges as against the persons executing the deed of adoption." Provision was made for one "to adopt any child or children as his or her heir," but the child so adopted remained the child of its natural parents. [Sec. 5246, R.S. 1899; Hockaday v. Lynn, 200 Mo. 456, 473, 98 S.W. 585.]
William Leeper is of course, presumed to have known the adoption statutes as in force and effect at the time the deed was written, and to have prepared the deed accordingly. The word "children" was not used in the deed in the light of a statute making an adopted child the child "for every purpose" of its adopting parents, but in the light of a statute which only gave the adopted child the rights of a child against its adopting parents, while at the same time leaving such adopted child the child of its natural parents. An adopted child, under the law of this State at the time the deed was written, only stood "in thesame relation of heirship to the estate possessed by the adopting parent at the time of his or her death, that a natural and lawfully born child would occupy under similar circumstances" (Williams v. Rollins, 271 Mo. 150, 195 S.W. 1009), but such child remained the child of its natural parents. The word "children" as used in the deed did not include adopted children and William F. Leeper died "without children," as that word was used in the deed. *Page 454
Although this court in the case of St. Louis Union Trust Company v. Hill, supra, held that under the 1917 adoption statute "the adopted child is taken out of the blood stream of its natural parents and placed by the operation of law in the blood stream of its adopting parents," and, although respondent, Marvin W. Leeper, under the present adoption statute, was, after 1934, a child of William F. Leeper and wife as fully as if born to them in lawful wedlock, and, although as such adopted child he was entitled to inherit from them and through them, as "a child" and as "an heir," he was not a child of William F. Leeper within the meaning of the word "children" as that word was used in the deed written in 1900. The court in the Hill case did not, and we find no decision of this court that does, undertake to take the present meaning of the word "children" as now used in deeds written subsequent to the enactment of the 1917 adoption statutes, and to make such meaning applicable to the word "children" as used in a deed written prior to that act when, under the law then in force, the word "children" did not mean, or include adopted children.
By determining the meaning of the word "children," we determine whether the "heirs" of William F. Leeper took upon his death or whether "his full brothers and their heirs" took the remainder. Having decided that his full brother took the remainder under the terms of the deed the question of descents and distribution, or inheritance and the meaning of the words "to his heirs" were not discussed. Respondent insists that we should have done so.
Unless this court first found that William F. Leeper died leaving "children" as that word was used in the deed, the question of descent and distribution, the right of inheritance, and the meaning of the words "to his heirs" could not be involved in this case, because if William F. Leeper died without "children," as that word was used in the deed, the fee passed "to his full brothers and their heirs" and the question of descent and distribution of inheritance was not involved. To illustrate further, appellants claimed that the deed created a life estate in William F. Leeper with a vested remainder to the full brothers of William F. Leeper, subject only to being divested in the event he died leaving a child (as that word was used) of his blood. While on the other hand respondent contended that the deed created a life estate in William F. Leeper with a contingent remainder to those who should be "the heirs" of William F. Leeper at his death, citing Secs. 562 and 3110, R.S. 1929, as determining who should take. What respondent overlooks is the fact that the determining factor as to whether the remainder passed to the "heirs" of William F. Leeper or to "his full brothers and their heirs" was conditioned solely upon whether William F. Leeper should die with, or without "children," and that the meaning of the term "children" must be *Page 455 determined in accordance with the laws in force at the time the deed was executed.
The Brock case, supra, involved a construction of the will of James Brock who died in 1915 devising land to his son Samuel Brock "to have and to hold, during his natural life and after his death to go to his heirs." Samuel Brock and wife had no children, born to them, but prior to his death, they adopted Frances Hickey by a decree of the circuit court under the 1917 adoption statutes. Samuel Brock died and Frances Hickey conveyed, to her mother by adoption, who then brought the suit to quiet and determine title.
Defendants, the grandchildren and great grandchildren of the testator, contended that at the time the will was made the law of Missouri was that an adopted child did not "inherit the estate of any member of the adopting family, other than the adopting parent, and so did not inherit the estate of ancestors or collateral kin of the adopting parent.
The court said (339 Mo. 611, 98 S.W.2d 672, 674): "If the testator had provided that, upon the death of the life tenant, the remainder should go to his own heirs, then it might be possible to sustain defendants' contention. But that was not what he said. He provided that it should go to the life tenant's heirs. `The word "heir," unqualified by any adjective, is a technical word denoting the person on whom the law casts the inheritance on the ancestor's decease.' . . . That question is determined by statutes on descents, and `it has been held by this court that an adopted child was a child (of the adopting parents) within the meaning of (our) statute on descents,' although adopted under the deed of adoption statute. . . . The question here is not whether Frances Hickey was capable of inheriting from the testator but whether she can take under the designation therein of `heirs' of Samuel Brock."
The court then held that under the statutes in force when the will was written, a child adopted by deed was an heir of the adopting parents within the meaning of our Statute on Descents and Distribution; that when the testator used the words "after his (the life tenant's) death to go to his heirs," he was presumed to have done so under the then laws; that under the statutes then in force a child even adopted by deed would come within the classification of "heirs" of Samuel Brock; and that it was, therefore, within the contemplation of the testator under the laws then in existence that an adopted child under the then adoption statutes would be within the classification of "heirs" as used in the will. The court said: "Under these sections (now Secs. 562 and 3110, R.S. 1929), the vesting of the fee simple estate devised or conveyed is postponed until the termination of the life estate, and made to vest in the persons who are the heirs of such tenant for life at that time and not those who are the heirs of the testator. Since Frances Hickey would have been an heir of Samuel *Page 456 Brock at his death whether she had been adopted by the deed of adoption method . . . or by the present method by court decree . . ., how could the result be changed by considering that James Brock in making his will designated the `heirs' of the life tenant to take the remainder at the termination thereof, in the light of the law or adoption as it then was? . . . As to the effect of the adoption by deed law, this court said: `The law of inheritance is a creature of this statute (of descents). . . . When adopted children were made heirs under the designation of "children," no change in the law of descents became necessary, but these "children" took their place automatically by that name in the descending line and they and their descendants have ever since inherited in that line from the adopting ancestors. . . . The statute of adoption places the adopted child next in the line of descent from the ancestor, of whom, for the purpose ofinheritance, he becomes the child and heir.' [In re Cupples' Estate, 272 Mo. 465, 473, 199 S.W. 556, 558.] . . . Defendant's theory is that the testator meant for the property to go to his own descendants. What they overlook is that he did not provide that this land should go to his own `heirs' when the life estate terminated, . . . If he had even said `children,' or `descendants,' or `issue,' or `heirs of the body' of the life tenant, we would have had a different expression of intention."
It is apparent, therefore, that there is nothing in the case of Brock v. Dorman, supra, that in any way conflicts with the opinion in this case. It is further apparent that the Brock case deals with descents and distribution and would only become applicable here, if title had passed to the "heirs" of the life tenant, rather than "to his full brothers and their heirs."
The motion for rehearing is overruled. Hyde and Bradley,CC., concur.