The record-union., 1896-08-29

In that State provision is made for the
adoption of a child the same as ours,
and gives such child all the rights of a
natural child. Section $3.50, Revised
Statutes, provides that: "If after max
ing of a will the testator should have
born to him legitimate issue who shall
survive him, or shall have posthumous
issue, then such will shall be deemed
revoked unless provision shall have
been made in such will for such issue" ;"
1t will be seen that the provisions of
that section are substantially the same
as the provision of Section 1906, c. c..
In constituting that section the court
held that a child adopted could not be
included in its provisions, and that
there was a marked distinction between
the terms born" and adopted
Counsel contend that the same court,
in the case of MOREOVER VS.. KrauSs, 49,
Ind. 294, overruled the case just cited,
but upon examination of that case |
find that counsel is mistaken, because
the court expressly cites the case of
Davis VS.. Fogle with their approval,
and drew distinction between it and
| the case they were considering. That
is, that Davis VS.. Fogle deals with the
question of origin, while that of Nor
hover VS.. Krauss deals with the ques-
ton of status.
In the latter case the question arose
as to the rights of an adopted child and
a second wife. One Krauss during the
lifetime of his first wife, jointly with
her, adopted the defendant; subse-
| quently the wife died, and the husband
nor i1ad !, SC, loo n
the second wife, who was herself child
| less, assumed the ownership of a certain
tract of land, and conveyed it to the
plaintiff. Under the law of that State
it is provided: THAT if a man marry a
subsequent or second wife, and has by
her no children, but has children alive
by a former wife, the interest of such
second or subsequent childless wife in
| the lands of decedent shall only be a
life estate, and the fee of the same shall
at the death of such husband vest in
such children, subject only to the life
estate of the wife,
| The question for the court to deter
mine was whether the widow owned the
land in fee, or whether she held a life
estate therein only. The court held
that the provisions of the statute of
having children by a former wife in
cluded both natural and adopted chill
dreD; that it could not be restricted in
| such case to natural children; that
the Legislature fixed the status of the
child adopted the same as one who was
/ born in wedlOck; but they expressly
stated that in no manner did their de-
| cision modify Davis VS.. FOgle. In re-
| regard to that case, the court said:
! THE court correctly decided that the
/ adoption of a child was not having a
1 child born to- the mother of a will. Only
! the birth of a child can have the eff
! feet of revoking a will" Then 1 must
conclude that Section 1906, c. c., only
refers to children born after the execu-
ton of a Will, and not to those adopted.
! II so, in this case the child adopted by
i the decedent after the execution of her
/ viii, and not provided for therein, the
will having disposed of her entire es-
tate, is not entitled to any portion of
/ the estate Of decedent. If she has no
interest then her guardian is not enti-
! tied to letters.
The Public Administrator is entitled
| to letters.