Bennington, this state, the place of his resi- | the adopted daughter deceased is entitled to dence, leaving a solvent estate in this state inherit through her by right of representaconsisting mostly of real property. He left tion a share in the adoptive father's intessurviving him a wife, Jennie L. Walworth, tate estate. This question, now for the first and several brothers and sisters (the except- time before his court, is not on the face of ants in this case), but no father or mother. the statute altogether free from doubt. The On January 15, 1885, by an instrument of doctrine of adoption was unknown to the adoption properly executed, filed, and record- common law of England, and in this country, ed pursuant to the statute (R. L. c. 127), the in states whose jurisprudence is based exintestate, then single, duly and legally adopt-clusively on that system, it exists only by ed one Maggie Mitchell, then a minor, as his statute. Matter of Thorne, 155 N. Y. 140, heir at law. Subsequent to such adoption, 49 N. E. 661; Burrage v. Briggs, 120 Mass. and on October 17, 1901, the intestate mar-103; Ross v. Ross, 129 Mass. 243, 37 Am. ried Jennie L., she then knowing of said Rep. 321; Morrison v. Estate of Sessions, 70 adoption, but at no time assenting or dissent- | Mich. 297, 38 N. W. 249, 14 Am. St. Rep. 500. ing to or from the same. Subsequent to her It has, however, been recognized by the civil adoption Maggie married, and after the mar-law from the earliest days of its existence, riage of her adoptive father and within his and on the provisions of that law our statlifetime she died leaving a son, Howard M. ute, as well as largely the statutes of adopScott, born in marriage, surviving her. Ho- tion in the different states of the Union, has ward M., now a minor, by his guardian, been founded. It is therefore reasonable and claims in consequence of the adoption of his proper to look to the civil law for the propmother to be an heir of the intestate by right er definition of the term, and in aid of the of representation, and as such entitled to a interpretation of the provisions in question. distributive share of his estate. No children Powers v. Hafley, 85 Ky. 671, 4 S. W. 683, 9 were ever born to the intestate. The court Ky. Law Rep. 369; Gray v. Holmes, 57 Kan. below decreed pro forma that Howard M. is 217, 45 Pac. 596, 33 L. R. A. 207; Human heir at law of the intestate, and that he phries v. Davis, 100 Ind. 274, 50 Am. Rep. is entitled to two-thirds of the intestate's es- 788. In the case last cited, where the contate remaining for distribution, the widow to struction of an adoption statute was under the remaining one-third, and that the broth-consideration, the court said: "A statute is ers and sisters of the intestate take nothing. not to be construed as if it stood solitary and To this decree exceptions were severally tak- alone, complete and perfect in itself, and isoen by the widow, the brothers, and sisters.lated from all other laws. It is not to be 1] By Laws of 1880, No. 137, § 1, "any expected that a statute which takes its place person other than a married woman, of full in a general system of jurisprudence shall be age, and sound mind, and any husband and so perfect as to require no support from the wife, may adopt any other person as his or rules and statutes of the system of which their heir at law with or without change of it becomes a part, or so clear in all its terms name of the person adopted." Sections 2, as to furnish in itself all the light needed for 3, 4, and 5 prescribe the method of proce- its construction. It is proper to look to othdure, and the form of the instrument to be er statutes, to the rules of the common law, executed to effect such adoption. And by to the sources from which the statute was section 6 "such instrument shall, if it ap- derived, to the general principles of equity, pears to the probate court that the provi- to the object of the statute, and to the condisions of the statute have been complied with, tion of affairs existing when the statute was be recorded in the probate office where it is adopted." filed. And upon the proper execution and filing of such an instrument the same rights, duties and obligations and the same right of inheritance shall exist between the parties as though the person adopted had been the legitimate child of the person or persons making the adoption, except that the person so adopted shall not be capable of taking property expressly limited to the heirs of the body or bodies of the parties making such adoption. And the natural parents of a minor shall be deprived, by the adoption, of all legal rights as respects the control of such minor, and such minor shall be freed from all obligation of obedience and maintenance as respects his natural parents." The law of these sections appears in R. L. 2536-2541, without change, and was in force at the time of the making of the adoption hereinbefore mentioned.

By the civil law before the time of Justinian, the effect of adoption was to place the person adopted in the same position he would have held had he been born a son of the adopter. All the property of the adopted son belonged to the adoptive father. The adoptive son was heir to his adoptive father, if intestate, bore his name, etc., and shared the sacred rites of the family he entered. It sometimes happened under this law that a son lost the succession to his own father by being adopted, and to his adoptive father by a subsequent emancipation. To remedy this, Justinian provided that the son given in adoption to a stranger should be in the same position to his own father as before, but gained by adoption the succession to his adoptive father if he die intestate. And by that law the adopted son is declared "assimilated, in many points, to

cretion; and that it is acquired on the birth, and also under some systems, on the adoption of a child. Holl. Jur. (10th Ed.) 172. In Ross v. Ross, cited above, the question was whether a child legally adopted in Penn

Justinian, 113, 115, 119. Lord Mackenzie, | their labor till they arrive at years of disin his work on the Roman Law, p. 131, says that: "By the ancient civil law adoption created the relation of father and son for all practical purposes, just as if the adopted son were born of the blood of the adoptive father in lawful marriage. The adopt-sylvania and thus entitled to inherit real ed child quitted entirely his own family and entered the family of his adopter, passing under the paternal power of his new father, and acquiring the capacity to inherit through | latter state upon his dying there intestate. him." The same author says: "Augustus did not adopt Tiberius who succeeded him in the empire, till Tiberius had adopted his nephew Germanicus; and the effect of this was that Tiberius became the son and Germanicus the grandson of Augustus at the same time." In Vidal v. Commagere, 13 La. Ann. 516, a leading case on the civil law pertaining to the subject, the minor child was adopted under an act of the Legislature authorizing Vidal and wife "to adopt" her. The controversy was between the nephews and nieces of the deceased adopting wife and the adopted child for the property of the succession of said wife. Vidal and wife were simply authorized "to adopt" the child, naming her, "provided the adoption be executed" within a specified time. The court said the whole question was one of interpretation: What rights did the Legislature intend to confer upon the child by authorizing Vidal and wife to adopt her? "What was meant by adoption?" The court said: "Under the Roman law, the person adopted entered into the family, and came under the power of the person adopting him. And the effect was such that the person adopted stood, not only himself in relation of child to him adopting, but his children became the grandchildren of such person."

estate there having with the adopting parent become resident in Massachusetts could inherit the real estate of such parent in the

[2] It was held "that, as by the common acceptation of the word 'adoption' the relationship of parent and child with all the consequences of that relationship is understood, as such was the legal meaning of the word under the former laws of Louisiana, and as such is its acceptation among civilians and those conversant with the sources of our laws, we cannot say that the Legislature used the word in a more restrained sense, in a sense not understood in common parlance, nor given in any dictionary, and not known in any system of laws. As by the former laws of Louisiana the person adopted bore the relation of child to the person adopting, and inherited his estate, so we think the Legislature, by the solemn expression of its will, intended to confer the same right upon the plaintiff to the estate of those who were authorized to adopt her." By the decree it was ordered that she be recognized as the sole heir of the deceased, and be put into the possession of all the property of the succession. Mr. Holland, in bis Elements of Jurisprudence, says that parental right extends to the custody and

Holding that generally the law of the domicile of the parties is the rule which governs the creation of the status of a child by adoption, it became necessary for the court to determine the legal status of the adopted child by the statute of Pennsylvania under which the adoption was had, as construed by the highest court of that state. Referring to two such cases the court said: "The opinion in each of those cases clearly recognizes what is indeed expressly enacted in the statute, that, as between the adopted child and the adopting father, the child has all the rights and duties of a child, and the capacity to inherit as such. According to one of the most learned and thoughtful writers on jurisprudence of our time, it is the rights, duties, and capacities arising from the event which creates a particular status that constitute the status itself, and afford the best definition of it. 2 Austin on Jurisprudence (3d Ed.) 706, 709-712, 974. By the law of Pennsylvania, therefore, as enacted by its Legislature and expounded by its highest judicial tribunal, the demandant, as between him and his adopting father, has in all respects the legal status of a child."

By the statute of Indiana, a child after its adoption takes the name in which it is adopted, and is entitled to all the rights and interests in the estate of the adopter, by descent or otherwise, that it would if the natural heir of the adopter; and the adoptive father or mother occupies the same position toward such child that he or she would if the natural father or mother, and is liable for the maintenance, education, and every other way responsible as a natural father or mother, in substance not materially unlike our own statute, except that ours excludes from the right of inheritance property expressly limited to the heirs of the body of the adopter. In Markover v. Krauss, 132 Ind. 294, 31 N. E. 1047, 17 L. R. A. 806, the court, recognizing the civil law as the source from which the statutory rules of adoption in this country have been borrowed, said that under that law, after the revision by Justinian, as before, the adopted child while held in the bonds of adoption was still in the position of a natural child born to the adopting father; that the law could and did make the legal status of the child adopted in every respect that of the natural child; and that the son of the adopted son was by the law made the grandson of the

and Stanley v. Chandler, 53 Vt. 619, as authorities against such right of representation. Yet they are not so. In the Moore Case by the special act the name of the person was changed, and she was "constituted heir at law of," etc., "in as full and perfect a manner as if she had been the daughter of the said" man and wife named, "born in lawful wedlock." The word "adopt" or "adoption" is not used in the act; hence a construction based upon the meaning of the term "adoption" under the civil law, as in the Louisiana case, could not be given; nor did the act confer upon either party any rights, duties or obligations other than such as resulted from the mere creation of an heir

cident to that relation. It was held that the intention of the statute was to give to adopted children the same relation to adopting parents that was given them by the civil law, and that, so far as property rights were concerned, it was the intention to give them the same rights as if they were their natural children or children of their blood. Although the direct effects of adoption under our statute are not left to rest upon the determination of the meaning of that term by construction, yet such effects expressly declared by the lawmaking power correspond in most respects with the principles of the early civil law; as respects his control, and the duties and obligations resulting from the adoption, the person adopt-at law. And it should seem that the court ed is placed in exactly the same position he had this peculiar feature of the act in mind, would have held had he been born a son of for it says: "It is hardly claimed that, if the adopter; and in such respects all rights, the act had merely constituted Mrs. Wright duties, and obligations between the child and heir at law of Mr. and Mrs. Dunbar, it his natural parents terminate. And, except would have had this effect (make her "the as to property expressly limited to the heirs child and lineal descendent of" them), but the of the body of the adoptive parent (an ex- subsequent words, it is insisted, could have ception of no apparent moment on the ques-been used for no other purpose, and are mere tion of the status created), the right con- useless surplusage, unless such effect be given ferred upon the child to inherit from such them. But it seems to us that these addiparent is also measured by that in law of a tional words were used to show the extent natural child. We think it logically follows and define the limits of the heirship thus from the authorities to which reference has created." The real question there was whethbeen made that under the statute, construed in er Mrs. Wright, by right of representation the light of the civil law, the adopted child through Mrs. Dunbar, deceased, became heir by the event of the adoption becomes the le- to the estate of the latter's brother subsegal child of the person or persons making the quently dying intestate. It was held that adoption, and stands as to the property of the right conferred to inherit from Mrs. Dunthe adoptive parent in the same position as bar did not give the right thus to inherit a child born in lawful wedlock, except as to through her. The Stanley Case was based property expressly limited to the heirs of the upon a similar special act, though even briefbody of the adopter. Ross v. Ross, cited er in terms; no additional words of definition above; Buckley v. Frazier, 153 Mass. 525, or limitation being used therein, such as were 27 N. E. 768; Flannigan v. Howard, 200 Ill. noticed by the court in the Moore Case. The 396, 65 N. E. 782, 59 L. R. A. 664, 93 Am. instrument of assent was executed by John St. Rep. 201; Atchison v. Atchison's Ex'rs, Bullock alone, then a married man, and the 89 Ky. 488, 12 S. W. 942, 11 Ky. Law Rep. opinion states that it was not shown that his 705; Hilpire v. Claude, 109 Iowa, 159, 80 wife was instrumental in procuring the pasN. W. 332, 46 L. R. A. 171, 77 Am. St. Rep. sage of the act, or ever approved of it, and 524; Moran v. Moran, 151 Mo. 558, 52 S. W. it was in derogation of her rights secured 378. by law in case she survive her husband, as [3] Furthermore, the status of parent and she did. The question involved, as stated child is a correlative one. Where there is a by the court, was: "Did the adoption of legal child there is a legal father. In Hum- John Chauncey Chandler in the manner in phries v. Davis, cited above, the court said which it appears he was adopted constitute it was not to be presumed that the Legisla- him in a legal sense the child or issue ture meant to violate logical results by cre- of John Bullock, so that under the general ating the legal relation of child without the statutes of descent or the special act consticorresponding one of parent. As a logical tuting him heir he would be entitled to the sequence, the children of such legal child are estate of John Bullock by inheritance to the the grandchildren of the legal father. The exclusion of the widow?" It was held that status of Howard M. is, therefore, that of a it did not; and the widow was allowed, unlegal grandchild to the intestate, and as such der the statute, $1,000 and one-half of the he is entitled to stand in his mother's place remainder of the estate. We think the Moore and right respecting the intestate estate, and Case and the Stanley Case are so distinshare in it as her legal representative, unless guishable in bases, and in the question inprevented from so doing by the restrictions volved, from the case at bar, that they have contained in either the statute of adoption | but little force as precedents in solving the or the statute of descent, presently to be questions before us. considered. The exceptants rely upon the

The special act under which the adoption

changed the name of the child from that of tween the parties" to the instrument of her natural parents to that of the adoptive parents, and made her "capable of taking and holding, by descent, the estate of" the latter "in as full and complete a manner as if she was his lawful child." The language of that act is certainly no broader than that of the statute now under consideration. After adoption the child died leaving children (the appellants in that case), and after her death the adoptive father died intestate. The question was whether the appellants, as such children, were entitled to the estate of the intestate by right of representation. It

adoption. The statute expressly defines the direct effects produced by the event of adoption; but it contains nothing which excludes the incidental consequences of the status produced, either alone or coupled with subsequent facts. An "incident," says Lord Coke, is "a thing appertaining to or following another as a more worthy or principal." Co. Litt. 1515. The direct effects of the adoption are complete when that event is entered upon. But the incidents are attached to the status by fixed rules of law, and whether they become operative in resulting was held that by the law of adoption the rights may be contingent upon subsequent adopted child was made a full legal heir circumstances. Thus we have seen that by to the adopting father; and was put pre-operation of law the minor child, Howard cisely upon the same footing, so far as tak- M., is the legal grandchild of the intestate, ing and holding the latter's property by de- consequent on the correlative relation of the scent was concerned, as a natural child; parties to the adoption. Yet the right of that, taking the logical sequence of the lan- such grandchild to inherit from the intesguage of the act, aided as it is by the prin- tate arises not out of the status produced by ciples of the civil law, the conclusion was the adoption alone, but out of that status inevitable that the appellants were the le- coupled with the subsequent fact of his gal grandchildren of the adopting father, mother's death before that of her adoptive and as such by right of representation en- father intestate; and therefrom the law fixtitled to share in the distribution of his es- es the results. "Every right," says Mr. Justate. The doctrine of this case was reaffirm- tice Holmes, "is a consequence attached by ed in Atchinson v. Atchinson's Ex'rs, 89 Ky. the law to one or more facts which the law 488, 12 S. W. 942, 11 Ky. Law Rep. 705. To defines, and, wherever the law gives any the same effect is Gray v. Holmes, 57 Kan. one special rights not shared by the body of 217, 45 Pac. 596, 33 L. R. A. 207. In Pace the people, it does so on the ground that v. Klink, 51 Ga. 220, the legislative act of certain special facts, not true of the rest adoption changed the surname of the adopt- of the world, are true of him. When a group ed child to that of the adopter, and pro- of facts thus singled out by the law exists vided "that he be entitled to all rights and in the case of a given person, he is said to privileges that he would have been entitled be entitled to the corresponding rights." to had he been born the son of" the adopter, Holmes' Com. L. 214. As respect the right and be made capable "of taking, receiving, of inheritance, we think the words "between and inheriting all manner of property under the parties" are intended to limit such right the statute of distributions * so far of the person adopted to inherit from the

by right of representation; and, if the statute be mutual (a question not considered), the right of the adopter to inherit is limited in like manner. Yet, as such limitations do not pertain to incidental consequences flowing from the legal parental relations, the right of the minor child in this case, through his mother by right of representation, to share in the intestate's estate, is not affected thereby.

as relates to the" latter's estate. The adopt-person or persons making the adoption, and ed son died before the adoptive parent, leav- to this end they in effect negative any right ing children surviving him. The question to inherit through such person or persons was whether these children, by right of representation, were entitled to take the same distributive share of the estate of the adoptive father, intestate, that their father would have taken if living. It was held that by the statute of adoption the adopted, so far as the adopter and his estate were concerned, was made the lawful son and lawful heir of the adopter; and that, so far as the property of the latter was concerned, the adopting act made the children of the adopted son the representatives of their father should he die first. From the examination we have given the subject, it is believed that in no other reported case has a like question been determined, and hence that there is no diversity of decision.

[4] It is said, however, that the words "between the parties," used in the section of the statute pertaining to the effects of the adoption, should be literally and strictly applied, and that with such application they clearly indicate an intention by the Legisla

[5] It is further contended that the word "children," as used in the first canon of descent (P. S. 2936), does not include an adopted child, and that the word "issue," as used in the second canon, does not include either an adopted child or the children of such child. In Ross v. Ross, cited above, it is said that the statute of descent "must be understood as merely laying down general rules of inheritance, and not as completely and accurately defining how the status is to be created which gives the capacity to inherit. It does not undertake to prescribe

or a husband, or what is necessary to con- 26 S. W. 962, more particularly noticed in a stitute the legal relation of husband and later paragraph. The word "issue" in the wife, or of parent and child. Those requi- second canon of descent has a broader sig. sites must be sought elsewhere. The words nificance than the word "children" in the 'children' and 'child,' for instance, in the first, since it must necessarily include the first clause, 'issue,' in the phrase 'if he "legal representatives of deceased children," leaves no issue,' in subsequent clauses, and also within the first. Indeed, by statute 'kindred,' in the last two clauses of this sec- (P. S. 10) the word "issue," as applied to tion, clearly include a child made legitimate the descent of estates, shall include the lawby the marriage of its parents and acknowl- ful lineal descendants of the ancestor. We edgment by the father after its birth under are not called upon to define the term besection 4 of the same chapter, or a child yond the necessities of this case. To renadopted under the provisions of chapter 110 der the second canon consistent with the of the General Statutes, or chapter 310 of first, and no one for a moment can suppose the Statutes of 1871." Exactly the same it was intended to be otherwise, the word holding was had in Fosburgh v. Rogers, 114 "issue" therein must include all "children" Mo. 122, 21 S. W. 82, 19 L. R. A. 201. and all "legal representatives of deceased children" within the proper interpretation of the first; for otherwise the descent of an estate above the widow's third might fall within both canons, a result so absurd that any construction producing it is to be avoided as not within the purpose of the lawmakers. In re Howard's Estate, 80 Vt. 489, 68 Atl. 513. By the Civil Code of Callfornia, after adoption, the child is to "be regarded and treated in all respects as the child of the person adopting"; and the two "shall sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation." In Estate of Newman, 75 Cal. 213, 16 Pac. 887, 7 Am. St. Rep. 146, it was held that these provisions of the law extended to all the rights and duties of natural parents and children; that the word "issue" in their statute of descent does not limit the right of inheritance to natural children only, but is used in the same sense as the words "child" or "children"; and that if the adopted child was by virtue of its status to be "regarded and treated in all respects as the child of the person adopting," and was to "have all the rights and be subject to all the duties of the legal relation of parent and child," the right to succeed to the estate of the deceased parent must be included. To the same effect are the cases of Atchison v. Atchison's Executors, In re Rowan's Estate, 132 Pa. 299, 19 Atl. 82, and Buckley v. Frazier, all cited above.

If the contention of the exceptants in this regard were sound, the provisions of the statute of adoption expressly conferring upon the person adopted the capacity to inherit would be in conflict with the statute of descent. And yet in this respect these two statutes, relating to same subject, are in pari materia, and should be construed together as if they are one law. Highgate v. State, 59 Vt. 39, 7 Atl. 898; Isham, Adm'r, v. Bennington Iron Co., 19 Vt. 230; State v. Central Vt. Ry. Co., 81 Vt. 463, 71 Atl. 194, 130 Am. St. Rep. 1065. We have already held in this case that the adopted child was in a legal sense the child of the intestate. As to the property of the estate, she is to be deemed his child, the same as if born to him in lawful wedlock. It follows, as seems clearly was the intention of the lawmaking power, that the word "children" in the first canon of descent should be construed to include a child adopted under the general provisions of the statute of adoption. By such construction the two statutes are made to harmonize and to operate together consistently with the evident intent of the enactment. In Sayles v. Christie, 187 Ill. 420, 58 N. E. 480, the special act of adoption made the adopted child the heir at law of the adoptive parents and declared her to be entitled to all the rights that would belong or pertain to her were she their daughter, and conferred upon her full power to take, hold, enjoy, and transmit any and all property from them by descent in the same manner as if she had been their natural born child. On the death of the adoptive father it was claimed that he left no child, and that the widow by renunication of the will was entitled to take under the dower act as in such case provided. The language of the statute was: "If a husband die testate leaving no child or descendants of a child," etc. Hurd's Rev. St. 1897, p. 635. It was held that the adopted child in the eye of the law was as much the child of the testator as though she had been born his natural child, and consequently the renunciation amounted to nothing. To the same effect are Patterson v. Browning, 146 Ind. 160, 44

[6] It is further said that the widow's share of the estate should not be affected by the adoption, since she never consented thereto nor took any part therein, and reference is made to Stanley v. Chandler in support of this position. But in that case, as before observed, the person was made "heir at law" by a married man without the joinder or consent of his wife. In such circumstances it seems to be pretty generally held, as there, that the rights of the widow in the estate of the husband are not affected thereby. Carroll's Estate, 219 Pa. 440, 68 Atl. 1038, 123 Am. St. Rep. 673; Nulton's Appeal, 103 Pa. 286; Baskette v. Streight, 106 Tenn. 549, 62 S. W. 142; Keith v. Ault,