Indiana State sentinel. (Indianapolis, Ind.) 1861-1865, 1861-09-11
An Interesting Decision upon the Law
OF Descents and the lights of Adopt
ed Heirs.


An Interesting Decision upon the La w
OF Desccnts and the flights of Adopt
ed Heirs.
BARNS rs. ALLEN ct aI.--In the Carroll c. p
PERKINS J.
Application for partition.
The facts of the case are these. Hiram Allen,
Esq, of Carroll county. Indiana. departed this
life on the 18th day of June, 1859, leaving n
large estate consisting Of real and personal prop
erty. and widow, Margaret NJ. Allen, who had
been his third wife, and had not borne him child.
He also left one illegitimate son, Hiram Allen.
Jr, and one adopted son, William Allen, and an
adopted daughter, Kate Allen.
He left no legitimate children, or descendants
OF such He had disposed of bis property by will
as follows:
80. As to what property / may die possessed
of, direct that it shall be disposed of thus: Nv
funeral expenses and all my just debts must be
paid out of my personal estate, provided it be
sufficient for that purpose and. to enable my ex
ecutor to pay said debts, | direct that he sell at
public sale all my personal property except such
as he shall think best to sell al private sale.
hereby authorize him to sell, and the proceeds of
such sales of personal property together with all
the debts due me which he can collect, shall be
applied to payment of my debs, which think
will be fully sufficient to pay the same; but if it
should not, then direct my executor to sell nay
mill property at Lockport. = Aher all my debts
are fully paid, then direct that my said execu-
tor sell my said mill property at Lockport,
as soon as he can obtain something like fair
price for il; and / hereby empower my executor
to sell all my property personal and real, except
the farm on which live,on showing to the G Jurt
a necessity therefor, and giving security; but he
shall first sell the personal property, and collect
debts due me, then sell the mill property at
I fhar tha sbo,
at West Delphi, then at Pittsburg and Green
castle.
''3. The balance of my property, after paying
debts, shall be disposed of as follows, both real
and personal Except the portion which the law
gives my beloved wife, viz. it shall be divided
equally between my three children, Hiram Allen
Jr., (whom have educated and recognized as
my own son, and do hereby acknowledge to be
my son. and William Allen and Kate Allen, my
two adopted children, whom l hereby acknowl-
edge and recognize as my children.
Il hereby appoint my beloved wife, Margaret NJ
Allen, the guardian of the persons and property
of my two children, William Allen and Kate
Allen; and hereby appoint my said son. Hiram
Allen, Jr., my executor / further lirect that in
the final adjustment of the property between my
three children, my son Hiram shall be charged
with the sum of 900 dollars already advanced
to him, unless, before my death, should equally
advance my other two children.
"a. further direct that on the death of either
of my above children without child'en living, the
share of such child shall 60 to the survivors, or
survivor"
The widow, Margaret NJ. Allen, elected to take
under the law, If any provision was made for her
by the will.
In 1860 she intermarried witt William A.
Barns, with whom she now joins n an applica-
ton for the partition of the real estate of her for
mer husband, Hiram Allen, deceased, claiming
one third thereof in fee. By the answers of the
defendants, admitted by demurrers to be true il
appears that Hiram Allen, deceased, in his life
time, had caused TO be conveyed to his wife Mar
garet, the now female plaintiff, an intended
advancement, or jointure, real estate of the
value of 5000 dollars, which she enjoys as her
property: and it is claimed that this real estate
should be treated as an advancement, or a
jointure. 1t further appears that the estate of
said Hiram, deceased. is indebted in the sum of
IS, QUO dollars, upon judgments, mortgages and
simple contracts. 1t is claimed that the widow
must contribute to the payment of these debts.
1t has already appeared in our statement that
William and Kate, two OF the devisees, were
adopted children of Hiram Allen, the devisor.
1t has also appeared that Margaret, the female
plaintiff, claiming one-taird of Aliens
lands in fee, was his third wife, childless, and
has, since his death, married second husband.
Our law of descents provides that ''if a widow
shall marry a second any subsequent time,
holding real estate in virtue of any previous
marriage such widow may not during such mar
riage, with or without the assent of her husband
ALLEVIATE such real estate; and if during such mar
rage, such widow shall die, such real estate shall
go to her children by the marriage in virt1e OF
which such real estate came to her, II any there
be. r. s., p. $50, sec. Is.
And further s.that if a man marry a second or
other subsequent wife, and has by her no children
but has children alive by previous wife, the land
which at his death descends to suth wife, shall
at her death descend to his children" Id. p.
PSI, sec. "a.
Now. Allen, the former husband of the female
plaintiff left no child or children begotten upon the
body of former wife; and if he had left no
adopted children, it would be clear that the share
of the female plaintiff in his real state would
vest in absolute fee. Does the existence OF the
adopted children place the right of inheritance OF
the wife within the statute above auotedF
Our statute of adoption enacts that any person
may adopt, and that the adopted child shall ''be
entitled to and receive all the rights and interest
in the estate of such adopted fatherOr mother. BY
descent or otherwise, that such child would do if
the natural heir of such adopted father or
mother" Acts 1855, p. 10.
or diminish the inchoate interest Of the wife in
the estate of her husband, or of an heir apparent
in the estate of the ancestor. Noel vs. Ewing, y
Ind 81
The female plaintiff, therefore, cannot legally
complain shou it turn out that the adoption OF
children by Allen, her husband. resulted in the
diminution of her Inheritance. l. such the factY
The statute declares that adopted shall have all
the rights of natural" children. In what sense
is the word natural" here used? We think in
the sense of legitimate and for these reasons.
L. 1t would be undignified in a Legislature to
provide for the adoption of children into the
condition of bastardy.
2. The word natural is no where used in our
statutes to designate illegitimate children; but
the words bastard and ilegitinate are employed
for that purpose.
3. The word is used in statute providing an
artificial mode of creating heirs, and is designed
to contrast in the mind the legal, natural mode
of creating them with the artificial.
A. Adoption of heirs is not of common law
origin. 1t was practiced among most Of the an
cient nations. and we have borrowed it from the
civil law. In that law, it gave tie right of in
heritance of a natural heir, which meant legit-
innate heir. Bouvier in his dictionary, tit. NAT
ural Children" says Gin the language of the
civil law, neural are distinguished from adop-
tive children that is, they are the children of the
parents spoken of, by natural procreation. See
Inst. lib. tit. 1, sec 3" See to the practice
among the Jews, the Bible. See as to adop-
ton in the civil law, Grote. Greece p. 139, note.
Adams Rom. Antiq. tit Adoption Bouvier
Die. h. t.
And IT may be observed..th that the time of adop-
ton will under our law, affect the interest OF
adopted children in the estate of the adopted pa
rents. If they be adopted at time when the
adopted father has no wife, and he marry after
wards, they may stand as children OF former
wife; otherwise as to wife existing at the time
of adoption so it may be further observed that
by the common law, statute, not nature, desig-
mates heirs, though statutes may seek to follow
nature Blackstone. book 2, p. 20l, says: "An