(146 N.E.) Keegan and wife, while living in Wisconsin have. But in Kohler's Estate, 199 Pa. 455, and having no children, adopted Mary Anna 49 A. 286, where the adoption took place Keegan. They later moved to Illinois. This after the execution of the will and after the wife died, and Michael married a second death of the testator, the court said: time, and had one child born to him as a That event therefore was not rearesult of this marriage, to whom he by will sonably within the contemplation of the tesgave all his property. This daughter died, tator." leaving as her only possible heirs a grandfather and the adopted child, Mary Anna Keegan, who claimed to be a half-sister and the sole heir of the deceased child. The court, in discussing the effect of the adoption, said: "The proceeding of adoption is one entirely between such parents and the child, at the instance, by the consent, and upon the petition of the parent or parents. The artificial relation from adoption is established between these parties, and the statute defines what shall be the duties and rights of the parties from this relation between them. As we construe the statute, as between the parties to the transaction the adopted child is deemed, for the purpose of inheritance from the adoptive parents, their child, the same as if he had been born to them in lawful wedlock." And it was there held that the adopted child could not inherit from the natural child of the adoptive father, the court saying: "As against the adopted child the statute should be strictly construed, because it is in derogation of the general law of inheritance, which is founded on natural relationship, and is a rule of succession according to nature, which has prevailed from time immemorial." Stanley v. Chandler, supra, does not discuss the question, and does not support the statement. [1] The rule on this subject is, in our judg ment, correctly stated in 40 Cyc. 1452, as follows: "The word 'children' does not usually include an adopted child, notwithstanding a statutory provision investing an adopted child with the rights of inheritance from the adopting parent, unless it is manifest from the language of the will and the surrounding circumstances, as in connection with a statute, that the testator intended to include such child." Martin v. Ætna Ins. Co., 73 Me. 25, cited in Bray v. Miles, supra, was an action on an insurance policy payable to the wife of the insured and in case of her death to their children. The insured had no children other than an adopted child, the adoption being had before the child was 1 day old. Every possible means had been taken by the adoptive parents to furnish all the evidence possible to show that he was their child and to conceal from him all information to the contrary, and the child never knew he was not in fact their child until after the death of the insured and his wife. The facts were held to conclusively lead to the inference that the intention was to provide for the adopted child as well as for any child they might In Munie v. Gruenewald, 289 III. 468, 124 N. E. 605, the will gave the property to the testator's children after the death of his wife, with a provision that in case of the death of either of the children during the lifetime of the wife the share of the deceas ed child should go to the "children" of such child. It was there held that the word "children" included an adopted child of one of the beneficiaries. But it appeared that the adoption was made several years before the execution of the will; that the deceased child dren other than the adopted child; that the was a married daughter, and had no chiltestator knew of the relation existing between his daughter and her adopted child, and knew that this adopted child was everywhere recognized as the child of his daughter. He also knew that, if this daughter survived his wife, the remainder would vest in the daughter and on her death would pass to the adopted child as an heir of his daughter. In re Truman, 27 R. I. 209, 61 A. 598, the testator, after making provision for payment of certain specific legacies, bequeathed onesixth of the remainder to the "children or issue" of a brother who had died 28 years before the date of the will, and who many years prior to his death had adopted a child. The deceased brother left surviving him one child born in wedlock and the adopted child, the former having died several years before the execution of the will, leaving four chil dren. The adopted child claimed one-half of the property so bequeathed to the children or issue of the deceased brother. The court found there was a latent ambiguity in the use of the word "children or issue," and permitted parol evidence to be introduced as to the intention of the relatrix by the use of such word, and, after stating that the intention of the testator when ascertained must govern, reached the conclusion that she intended to include the adopted child as one of the children of the deceased brother. This case and Munie v. Gruenewald, supra, were decided upon the theory that there was a latent ambiguity in the will, but that, when the circumstances surrounding its execution were considered, it was evidently in the intention of the testator that the word "children" should include adopted children. In Woodcock's Appeal, 103 Me. 214, 68 A. 821, 125 Am. St. Rep. 291, where the will was made 8 years after the adoption, the court said: child or children,' by that designation, he "Where one makes provision for his own should be held to have included an adopted child, since he is under obligation in morals if not in law to make provision for such child. * * * When in a will provision is made for 'a child or children' of some other person than the testator, an adopted child is not included, unless other language in the will makes it clear that he was intended to be included, which is not the case here. In making a devise over from his own children to their 'child or children,' there is a presumption that the testator intended 'child or children' of his own blood." In Lichter v. Thiers, 139 Wis. 481, 121 N. W. 153, after setting out and discussing the statute of that state pertaining to the rights of adopted children which in substance is the same as the statute of this state, it was said: In Wallace v. Noland, 246 Ill. 535, 92 N. E. 956, 138 Am. St. Rep. 247, 20 Ann. Cas. 607, a father by will divided his property among his four children and the children of a deceased daughter. By one clause of the will with condition that, if the son "should die certain real estate was devised to a son, leaving no heirs," it then went to the other three children. This son married, but no children were born to him. In 1899 he adopted several children, and died in 1909. The "In some of the authorities referred to, particularly Woodcock's Appeal [103 Me. 214, 68 Atl. 821], the pretty arbitrary rule of construction was adopted that in all cases where one makes provision for his own child or children by that designation he should be held to have included an adopted child,' but, where one makes provision for "a child or children" of some other person than the testator, an adopted child is not included unless other language intestator died in 1866. The word "heirs," as the will makes it clear that he was intended to used in that will, having been theretofore be included. * In making a devise over from his own children to their "child or chil- Wallace, 202 Ill. 239, 66 N. E. 1088), the construed as meaning children (Bradsley v. dren" there is a presumption that the testator intended "child or children" of his own adopted children claimed that they as adoptblood. ed children were given all the rights to which children born in lawful wedlock were entitled. The court, after stating that the statute put an adopted child on an equality with children by birth for the purpose of inheriting from the adopting parent, said: In Schafer v. Eneu, 54 Pa. 304, the devise was to a trustee for the use of a daughter of the testator for the life, and on her death to be conveyed to her children. After the death of the testator, the daughter died without issue, but leaving adopted children, who claimed they were entitled to the property. The court, referring to the statute concerning adoption, said: "The right to inherit from the adopting parent is made complete, but the identity of the child is not changed. One adopted has the rights of a child without being a child." ing from the adopting parent the adopted child "In other respects than the right of inheritis unlike children by birth. By adoption he acquires no right to inherit from any one else than the adopting parent. Keegan v. Geraghty, creates an artificial relation between the par101 Ill. 26. In that case it was said adoption ties to the transaction. 'As we construe the statute, as between the parties to the transaction the adopted child is deemed, for the purpose of inheritance from the adoptive parents, And the same court in Commonwealth v. their child, the same as if he had been born to Nancrede, 32 Pa. 389, said: "Giving an adopted son a right in inherit does not make him a son in fact. And he is so regarded in law only to give the right to inherit." In re Puterbaugh's Estate, 261 Pa. 235, 104 A. 601, 5 A. L. R. 1277, it was held that a child adopted after the death of the testator was not within a provision of a will giving a life estate to testator's son with remainder over to his child or children. The court, after calling attention to the fact that the adoption took place after the death of the testator, said: * Nothing is to be found in the will suggesting that so far as testator knew the adoption of a child was then contemplated. Not a single extrinsic fact can be pointed to them in lawful wedlock.' It has been said in a garded in law as a child only for the purpose of number of cases that an adopted child is reinheritance from the adopting parent, and not the child, in fact, of such adopting parent." In support of the last statement see Barnes v. Allen, 25 Ind. 222; Barnhizel v. Ferrell, 47 Ind. 335; Nickerson v. Hoover, 70 Ind. App. 343, 115 N. E. 588; Davis v. Fogle, 124 Ind. 41, 23 N. E. 860, 7 L. R. A. 485. In Phillips v. McConica, 59 Ohio St. 1, 51 N. E. 445, 69 Am. St. Rep. 753, it was said the statute enables the adopted child to inherit "from its adopter, but not through him. ** * * The ancestors of the adopter are presumed to know their relatives by blood, and to have them in mind in the distribution of their estates, either by will or descent, (146 N.E.) as to adoption proceedings in the probate | termined from a consideration of the circumcourts of the counties of this state; and to stances which it involves, including the lanallow an adopted child to inherit from the guage of the will before the court for construction." ancestors of the adopter would often put property into the hands of unheard of adopted children, contrary to the wishes and expectations of such ancestors." To the same effect see In re Sunderland, 60 Iowa, 732, 13 N. W. 655; Van Derlyn v. Mack, 137 Mich. 146, 100 N. W. 278, 66 L. R. A. 437, 109 Am. St. Rep. 669, 4 Ann. Cas. 879. In Davis v. Fogle, supra, where the contention was that the adoption of a child re voked a will made before the adoption, the court, after reviewing several of the causes relied on by appellee herein, said: * * "These decisions go as far, it would seem, in holding the legal status of the adopted child to be the same as a natural child, as is warranted under the statute. These decisions go no further than to hold that the surviving adopting father or mother inherits from the adopted child such property only as it inherited from the deceased adopting father or mother. * There is a material difference in the matter of inheritance by an adopted and natural child; also, as to the descent of property owned by them. An adopted child inherits from its natural parents, but not from the relatives of the adopting parents." And on page 46 the court, in speaking of children born to one and children adopted, said: “The statute gives to the one certain rights, and imposes certain obligations on the adopting parents, but it does not make it the legitimate child and issue of the adopting parents, or a child born to them. One becomes an heir by birth, the other by the judgment of a court." Bray v. Miles, supra, was distinguished from the case then being considered, and attention was called to the fact that the court in the Bray Case gave force to the fact that the child there involved, had been adopted by the testator's daughter prior to the testator's death. [2] The will in the instant case bears evi dence of having been written by the testator himself, or by some one with a very limited education and unlearned in the law. And it is only reasonable to suppose that the testator used the word children as ordinarily and commonly used, meaning a descendant in the first. degree-the immediate progeny or offspring. And, unless there is something in the will or the situation of the testator or other circumstances indicating otherwise, it is our duty to give the words used by the testator their usual and common meaning. West v. Rassman, 135 Ind. 278, 294, 34 N. E. 991; Cummings v. Plummer, 94 Ind. 403, 48 Am. Rep. 167; Skinner v. Spann, 175 Ind. 672, 686, 93 N. E. 1061, 95 N. D. 243. [3] As was held in Harle v. Harle, 109 Tex. 214, 204 S. W. 317, 15 A. L. R. 1261, the words "child or children" are not technical terms that require the evidence of an expert to define. The ordinary signification of child is a male or female descendant in the first degree. See, also, Stanley v. Chandler, supra. [4] As was said in White v. Rowland, 67 Ga. 546, 554 (44 Am. Rep. 731): "The ordinary, popular and legal sense of the word 'children' embraces only the first gen further there must either be something in the context showing that a larger signification was intended, or the person using it must know that there neither is nor can afterwards be any person to whom the term can be applied in its appropriate sense." In Nickerson v. Hoover, supra, the testa-eration of offspring, and for it to be extended tor had four sons and three daughters. The sons and two of the daughters were married and had children when the will was executed. The other daughter was married, but had no children. To the sons and daughters who had children the testator gave certain property absolutely. To the daughter having no children he gave certain property "forever provided she have heirs, if not then at her death" over. The court, viewing the entire will in the light of surrounding circumstances, held that the phrase, "provided she have heirs," meant provided children should be born to her, and that the condition was not satisfied by the adoption of a child. In this connection the court, at page 359 (115 N. E. 593), said: "An examination of the decided cases will disclose also that force is given to certain extraneous circumstances, as whether the testator knew that his devisee had adopted a child; whether the adoption preceded his death; whether the adopted child was a stranger to the blood of the testator, and the like. It follows that to an extent each case must be de See, also, Shanks v. Mills, 25 S. C. 358; Smith v. Chapman, 1 Hen. & M. (Va.) 240, 290; Echols v. Jordan, 39 Ala. 24, 31; Black's Law Dict., Children. [5] Where one makes provision for his own "child or children" by that designation, it is quite proper that he should be held to have included an adopted child, and it is the settled law in this state that in such a case the word "child" will include an adopted child, unless there is something in the will to show an intention to exclude an adopted child. But we hold that, where a person makes provision in a will for a "child or children" of some person other than the testator, an adopted child is not included, unless other language in the will makes it clear that it was intended to be included. In addition to the authorities heretofore | offspring of the son-a child born to the son. cited see Russell v. Russell, 84 Ala. 48, 3 So. There being nothing to indicate an intention 900; Stout v. Cook, 77 N. J. Eq. 153, 75 A. on the part of the testator to use the word 583; Melek v. Curators, 213 Mo. App. 572, 250 "children" as including possible adopted chilS. W. 614; Cochran v. Cochran, 43 Tex. Civ. dren, we hold the court erred in sustaining App. 259, 95 S. W. 731; Hockaday v. Lynn, the demurrer to the complaint. 200 Mo. 456, 98 S. W. 585, 8 L. R. A. (N. S.) 117, 118 Am. St. Rep. 672, 9 Ann. Cas. 775; Wilder v. Butler, 116 Me. 389, 102 A. 110, L. R. A. 1918B, 119; Parker v. Carpenter, 77 N. H. 453, 92 A. 955; Eureka L. Ins. Co. v. Gies, 121 Md. 196, 88 A. 158; Blodgett v. Stowell, 189 Mass. 142, 75 N. E. 138; Walcott v. Robinson, 214 Mass. 172, 100 N. E. 1109; Matter of Leask, 197 N. Y. 193, 90 N. E. 652, 27 L. R. A. (N. S.) 1158, 134 Am. St. Rep. 866, 18 Ann. Cas. 516. [6] As heretofore stated, the testator in the instant case died 14 years before the adoption of appellee, not knowing his son contemplated the adoption of a child. There is nothing in the will or the circumstances connected with its execution to indicate that the testator intended to use the word "children" in any sense other than to indicate one standing in the relation of the direct Barring the one incident of husband and wife's right by reason of the marital relation, our laws of descent and distribution are built on and around the idea of blood kinship. So the fact that the testator made provision for the son and his wife during their joint lives, and that the property was to go to a blood relative of the testator, if the son died without children, with the exception that he made provision for the son's wife in case she survived her husband, should not be overlooked in seeking the intention of the testator, but should be given some consideration. Bray v. Miles, supra, in so far as it is in conflict with this opinion, is overruled. Judgment reversed, with directions to overrule the demurrer to the complaint aud for further proceedings in accordance with this opinion. (146 N.E.) (315 III. 241) (Supreme Court of Illinois. Dec. 16, 1924. 1. Corporations 22-Duties of Secretary of Under General Corporation Act, Secretary of State, when statement of incorporation conforming to provisions of act is presented, must file it and issue certificate of incorporation, and must refuse to file one which does not conform to act; such duties being ministerial. 2. Corporations 22-Statement of incorporation permitting directors at discretion to divide preferred stock into classes held not entitled to be filed. Under General Corporation Act, §§ 4, 31, statement of incorporation dividing stock into common and preferred, but authorizing board of directors to issue preferred stock in series, and fix rate of dividend and redemption price for each series, did not sufficiently describe different classes of stock to be entitled to be filed, even if all subscribers to stock consented. Original petition by the People, on the relation of Louis S. Hardin and others, against Louis L. Emmerson, Secretary of State, for writ of mandamus. On demurrer to petition. Writ denied. tion presented by the relators to the Secretary of State fixed the number of shares of preferred stock of the value of $100 a share at 1,000 and the number of shares of common stock of the same par value at 50. It set forth that dividends were to be paid on the preferred stock in accordance with the certificates issued before dividends were paid on the common stock, and that after all fixed dividends were paid on the preferred stock the remainder of the profits was to be divided among holders of the common stock. It also set forth that the corporation might redeem all or any part of the preferred stock on any dividend day by paying the redemption price fixed with respect to the shares of any series of such stock. The paragraph in the statement that caused the Secretary of State to refuse to file is as follows: "The board of directors of the corporation' shall have power to provide from time to time for the issue of the preferred stock in series, in such amounts as may be authorized from time to time by the board of directors, and with respect to the stock of any such series to determine and fix at the time of issuance the rate of dividend applicable thereto but not exceeding the rate of eight per centum per annum, and to determine and fix the price at which the stock of any such series may be redeemed as aforesaid, but such redemption price shall not be less than $100 nor more than $110 per share, plus all unpaid dividends accumulated or accrued thereon to the date fixed Cutting, Moore & Sidley, of Chicago, for for redemption." petitioners. Edward J. Brundage, Atty. Gen. (Clarence [1] When a statement of incorporation N. Boord and B. L. Catron, both of Spring-which conforms to the provisions of the Genfield, of counsel), for respondent. eral Corporation Act is presented to the Secretary of State, he must file it and must issue a certificate of incorporation to the incorporators; but if the statement of incorporation presented to him is not in conform THOMPSON, J. The Secretary of State refused to file a statement of incorporation and to issue a certificate thereon to Louis S. Hardin, Merritt C. Bragdon, and E. D. Mc-ity with the act, he must refuse to file it. His Dougal, on the ground that the statement did not describe the different classes of stock and the relative rights of each class. Thereupon this original petition for writ of mandamus was filed and the Secretary of State has demurred to the petition. Section 4 of the General Corporation Act (Smith-Hurd Rev. St. 1923, c. 32) requires that the statement of incorporation shall set forth, inter alia, the number of shares into which the capital stock is to be divided, and, if there is to be more than one class of stock created, a description of the different classes, the number of shares in each class, and the relative rights, interests, and preferences each class shall represent. Section 31 of the same act requires that shares of stock having a par value shall be represented by certificates, which shall state the number of shares represented thereby and the relative rights, interests, and preferences, if any, of such shares. The statement of incorpora duties in this regard are ministerial. The inquiry, then, is whether the statement presented by the relators set forth the information required by the act. [2] The statement divides the stock into two classes-common and preferred-describes these classes, and sets forth the relative rights of common stockholders in so far as their relations with preferred stockholders are concerned, and of preferred stockholders in so far as their relations with common stockholders are concerned. But the statement reveals that the board of directors may from time to time, in their discretion, divide the preferred stock into classes. It is possible to create many different classes of preferred stock, and it is quite probable that two or three classes will be created. For example, suppose series A of preferred stock consisted of 500 shares of 8 per cent. stock redeemable at $110 a share, series B of 250 shares of 61⁄2 per cent. stock redeemable at For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 146 N.E.-9 |