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 Cornell University Ubrary 
 KFM2504.5.A3 1876 
 
 Law .of adoption ,![|,,{lj^.||ffij|f|||f|||||lf^^ 
 3 1924 024 686 994 
 
Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 I 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 
 IN HEnORY OF 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
The original of tiiis book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924024686994 
 
THE 
 
 LAW OF ADOPTION 
 
 UNITED STATES, 
 
 AND ESPECIALLY IN 
 
 MASSACHUSETTS 
 
 WILLIAM H.'^WHITMORE, A.M. 
 
 With an Appendix Containing the Massachusetts Act of 1876. 
 
 ALBANY: 
 JOEL MUNSELL. 
 
 1876. 
 
Entered aoooraing to Act of CongreBB 
 
 in the year 1876. 
 
 By Wm. H. Whitmobe, 
 
 In the office ot the Librarian of Congress. 
 
PREFACE. 
 
 The following collectio n of stat utes relating to the adoption of 
 children, was made primarily for the purpose of assisting a com- 
 mittee of the Massachusetts Legislature in considering the ques- 
 tion of a proposed change in the laws of that state. In 1875 
 the bill printed in Appendix B had the approval of one branch, 
 and was finally referred to the Legislature of 1876. It seemed 
 therefore reasonable that the committee charged with a second 
 consideration of the subject, should have collected for its use, a 
 statement of such legislation as had been effected in other states. 
 The compiler felt that time would also be saved to the com- 
 mittee by a commentary upon the deficiencies and incongruities 
 of existing statutes. After a most careful and thorough investi- 
 gation of the subject, the Legislature, repealing all former stat- 
 utes, passed a new law, in which an attempt has been made to 
 remedy the omissions of former acts, and to modify in some re- 
 spects the sweeping changes in the rules of inheritance which 
 had been the result of previous legislation. 
 
 The necessity of such legislation will be seen when it is re- 
 membered that the whole idea of creating children by act of 
 law, is unknown to the common law, and may even be said to be 
 repugnant to it. Hence it is not sufficient merely to state that 
 a man may adopt a child to be to all intents and purposes his 
 own, but to prevent endless complications it is necessary to enact 
 in what degree this child shall be substituted in other relations 
 to persons other than the adopting parent. Especially is this 
 of great importance in all questions of inheritance, since the 
 adopting parent is often but the medium of transmission of 
 property acquired by persons neither cognizant of nor consenting 
 to the act of adoption. 
 
 The State of Massachusetts in 1851, was the first to pass a 
 law on this subject, and its example has been followed by some 
 
iv ' PREFACE. 
 
 twenty of the states. Its first act was drawn with the avowed 
 object of securing to adopted children a proper share in the 
 estate of adopting parents who should die intestate. But though 
 for twenty years no decision was made under this statute, when 
 it was brought before the Supreme Judicial court, in the case 
 of Sewall vs. Roberts (115 Mass., 262), it was found that the 
 law was unnecessarily and unwisely broad in its terms. Not 
 only did adopted children take a share in the estates at the 
 disposal of the adopting parents, but they were substituted in 
 entails and other dispositions of property, in cases where the 
 testator could have had no prevision of such a result. 
 
 The various changes which had been made in the Massa- 
 chusetts law after 1851, were mainly directed towards modify- 
 ing the wise rule that the consent of both of the'natural parents 
 if living, must be obtained before a child could be adopted by 
 other persons. But the original defects of the law have never 
 before been seea or corrected, and would alone have justified 
 new legislation. 
 
 The new features of the act of 1876 may be briefly described 
 as follows. 
 
 In § 1, it is enacted that an adoption by a married couple 
 must have the consent of both, and makes the child the child 
 and heir of both. It is also necessary that the child must 
 be younger than the adopting parents, while by § 10 it is 
 provided that certain persons shall not be adopted by certain 
 other persons. The prohibition is really directed against any 
 attempt to upset natural relationships. 
 
 In § 2 it is added that a guardian may adopt his ward. 
 
 In § 4 : the former law made the consent of the natural 
 parent unnecessary (among other cases) if he was imprisoned 
 under a sentence of not less than three years, or had deserted 
 the child for one year. By the new law he must be imprisoned 
 under a sentence of which more than three years are unexpired 
 at the date of the petition, or the desertion must be for two 
 years. These changes are in deference to the claims of the 
 natural parent, and are probably equitable. A new clause was 
 also added, that if the parent had been convicted of being a 
 common drunkard, or a common night walker, or a lewd, wanton 
 and lascivious person, and also neglected to provide proper 
 
PREFACE. 
 
 care and maintenance for the child, his or her consent would 
 not be required. This clause was added in the last stages of 
 legislation, and seems to be hardly well considered. The 
 period of such neglect is not specified as in other cases, but if 
 it extends to two years it is covered by the preceding clauses. 
 Fortunately, in all cases the judge of probate has to be satisfied 
 that the adoption ought to be made, and probably no judge 
 will act under this clause without careful consideration. 
 
 Id §§ '7, 8 and 9, the question of inheritance is considered 
 much more fully than in the corresponding sections of the old 
 law. It is provided that the adopted child shall retain his right 
 to inherit from his natural parents and kindred. Secondly, that 
 he shall be duly enrolled among the descendants of his adopting 
 parent as though really born to him in lawful wedlock, but shall 
 be in this position towards no other of the kindred of the adopt- 
 ing parent. The reasonable theory is, that no injustice is done 
 to the progeny of the adopting parent by this introduction of 
 an heir, but that as the relatives of the adopter do not have any 
 control of his acts, they should not have new relatives, not of 
 their blood, thrust upon them. Third, and most important, is the 
 provision that, with two exceptions, in no grant, trust-settlement, 
 entail, devise or bequest, shall the term " child " or its equiva- 
 lent be held to include a child by adoption, unless it plainly 
 appears to have been the intention of the settler, grantor or tes- 
 tator to include such ; excepting, however, if the settler, grantor 
 or testator be the adopting parent, the presumption shall be the 
 other way, and he must in terms exclude adopted children. 
 Vested rights under previous laws are of course excepted from 
 the effect of this statute. 
 
 To sum up : it will appear that by the new law an adopted 
 child is amply provided for in case his adopting parent dies in- 
 testate, in regard to all the property of which such parent has 
 had a right of disposal by will. But it is no longer in the power 
 of any one, by adopting a child, to divert property into channels 
 alien in blood to the original testator, under the terms of a law 
 enacted, perhaps, since the devise was made. 
 
 Lastly, if the adopted child dies intestate, his property is to 
 be shared as follows : all acquired by himself or from his 
 
vi PEBFACE. 
 
 adopted kindred, is divided among them ; and all inherited from 
 his natural kindred returns to that family. 
 
 By § 10 it is provided that no one can marry his or her 
 adopted child ; therein assimilating this relation to that of step- 
 parents and step-children. In all other respects the natural 
 relation of all persons is unaltered by any act of adoption. That 
 is, all marriages allowed or prohibited by law, other than as 
 before mentioned, are unaffected, and sexual crimes are the same 
 as though no act of adoption had occurred. 
 
 It is to be noted that the act says that this preservation of 
 the natural relations shall take place in relation to every person, 
 " except such parent or child." This clause was also inserted 
 during debate, and it is difficult to explain its effect. The case, 
 including the prohibition of marriage, is like that of such 
 crimes committed by and between step-parents and their step- 
 children, though certainly the moral crime is not as great. 
 Still as crimes between the latter are not aggravated in degree 
 by the relation, it is hard to see that the clause has any effect 
 at all in law. 
 
 In § 11 the principle of reciprocity between the states is re- 
 cognized, and deserves some notice. Heretofore the statute has 
 provided only for children adopted in Massachusetts under its 
 law, and a child duly adopted in another state in accordance 
 with the laws thereof, was not thereby put in a position to claim 
 as an heir here. Now however, he may if adopted elsewhere 
 have the same rights here as regards succession to property as 
 he would in his own state, unless those rights are in excess of 
 our law. So again, if adopted here, he will always retain his 
 rights so far as the jurisdiction of the Commonwealth extends. 
 
 Having thus given a summary of this last and comprehensive 
 act of legislation, there remains for the compiler to say that he 
 has decided to place a small edition of his collection before the 
 public. Inasmuch as other states have based their legislation 
 largely upon the action of Massachusetts, it is not unreasonable 
 to presume that this act will be carefully examined in such 
 states, and may lead to changes in their laws. The compara- 
 tive view of all the statutes on this subject may therefore be of 
 use elsewhere, and the reprint of the different stages of the law 
 in Massachusetts may be of service to lawyers here. 
 
PREFACE. vii 
 
 The section of " Considerations on the Scope and Provisions 
 of the Law of Adoption (pp. 73-85) has been retained, although 
 the criticisms are no longer applicable to the law in Massa- 
 chusetts. Inasmuch as the laws of other states are equally ex- 
 amined there, the comments and comparisons may be still of 
 use, the new statute of Massachusetts serving as an example of 
 the improved legislation which is desirable elsewhere. 
 
 The present law is given in Appendix C. 
 
 Appendix B is merely a tentative bill, never In force, and is 
 retained solely owing to the method in which this edition was 
 prepared for publication. 
 
 The whole subject is one which has received little discussion 
 from writers upon legal topics, except so far as it was part of 
 the civil law, and very few decisions have been made under any 
 of our state laws. All legislation about it has been made from 
 the philanthropic stand-point, and it may therefore perhaps be 
 allowed to be a topic which one may discuss from a non-profes- 
 sional point of view, without incurring the imputation of pre- 
 sumption. 
 
 Finally, attention is called to the following decision of the 
 Supreme Judicial court of Massachusetts, which appeared after 
 the following pages were in print. 
 
 BowDLEAR vs. BowDLEAR, 112 Mass., 184. One S. J. Bowd- 
 lear and his wife in 1861, adopted Fanny Lincoln, and^ her 
 name was changed to Fanny Lincoln Bowdlear. He died in 
 1872, and by his will made a bequest to " Fanny Lincoln, of 
 whom my wife and myself have had the care for some time." 
 This will was made some nine months before the adoption. 
 She claimed, as a child not provided for in the will by acci- 
 dent or mistake, the same share of the estate which she would 
 have taken if the testator had died intestate. The claim was 
 rejected, the court ruling that the proceeding of adoption 
 " could have no effect upon his last will, previously made, and 
 purporting in its terms to make special provisim for her." Also 
 held, that there appeared to be an intent on the part of the tes- 
 tator to provide for this child. 
 
 W. H. W. 
 Boston, May, 1876. 
 
MASSACHUSETTS. 
 
 ADOPTION OF CHILDREN. 
 
 Acts of 1851. 
 
 CHAP. 324. 
 An Act to provide for the Adoption of Children. 
 
 Be it enacted, &c. 
 
 Sect. 1. Any inhabitant of this Commonwealth 
 may petition the judge of probate, in the county 
 wherein he or she may reside, for leave to adopt 
 a child not his or her own by birth. 
 
 Sect. 2. If both or either of the parents of such wntten 
 
 consent 
 
 child shall be living, they or the survivor of them, ^^^^ 
 
 as the case may be, shall consent in writing to 
 
 such adoption ; if neither parent be living, such 
 
 consent may be given by the legal guardian of 
 
 such child; if there be no legal guardian, no 
 
 father nor mother, the next of kin of such child 
 
 within the State may give such consent ; and if 
 
 there be no such next of kin, the judge of probate 
 
 may appoint some discreet and suitable person to 
 
 act in the proceedings, as the next friend of such 
 
 child, and give or withhold such consent. 
 1 
 
2 . MASSACHUSETTS 
 
 Consent of Sect. 3. If the child be of the age of fourteen 
 
 the child 
 
 necessary, ygars or upwards, the adoption shall not be made 
 
 without his or her consent. 
 ifpeH- Sect. 4. No petition by a person having a law- 
 
 tiorier 
 
 tand"or f"^ wife shall be allowed, unless such wife sjball 
 per must join therein, and no woman having a lawful 
 
 join 
 
 husband, shall be competent to present and pro- 
 secute such petition. 
 ifjudge Sect. 5. If, upon such petition, so presented and 
 rtaii*de-'''^ consented to, as aforesaid, the judge of probate 
 
 cree and 
 
 thead?p- ^'^^l^ ^® satisfied of the identity and relations of 
 the persons, and that the petitioner, or in case of 
 husband and wife, the petitioners, are of sufiicient 
 ability to bring up the child, and furnish suitable 
 nurture and education, having reference to the 
 degree and condition of its parents, and that it is 
 fit and proper that such adoption should take effect, 
 he shall make a decree setting forth the said facts, 
 and ordering that, from and after the date of the 
 decree, such child should be deemed and taken, to 
 all legal intents and purposes, the child of the 
 petitioner or petitioners. 
 
 Theadop. Sect. 6. A child so adopted, as aforesaid, shall 
 
 ed shall ^ ' 
 
 tents ind bc deemed, for the purposes of inheritance and 
 
 purposes 
 
 le auhiid succcssiou by such child, custody of the person and 
 right of obedience by such parent or parents by 
 adoption, and all other legal consequences and 
 incidents of the natural relation of parents and 
 children, the same to all intents and purposes as 
 
LAW OF ADOPTION. 3 
 
 if such child had been born in lawful wedlock of 
 
 such parents or parent by adoption, saving only 
 
 that such child shall not be deemed capable of 
 
 taking property expressly limited to the heirs of 
 
 the body or bodies of such petitioner or petitioners. 
 
 Sect. 7. The natural parent or parents of such The na- 
 tural pa- 
 child shall be deprived, by such decree of adoption, be°di8''ra'n 
 
 of all legal rights whatsoever as respects suchwiiouy. 
 child ; and such child shall be freed from all legal 
 obligations of maintenance and obedience, as re- 
 spects such natural parent or parents. 
 
 Sect. 8. Any petitioner, or any child which isThepeti- 
 
 • • 1 tioner, or 
 
 the subject of such a petition, by any next friend, ^^/^e^^^' 
 may claim and prosecute an appeal to the Supreme may ap- 
 Judicial Court from such decree of the judge offSSf 
 
 Court. 
 
 probate, in like manner and with the like effect as 
 such appeals may now be claimed and prosecuted 
 in cases of wills, saving only that in no case shall 
 any bond be required of, nor any costs awarded 
 against, such child or its next friend so appealing. 
 [Approved by the Governor, May 24, 1851.] 
 
MASSACHUSETTS. 
 
 Acts of 1852. 
 
 CHAP. 262. 
 
 An Act in addition to an Act to provide for the 
 Adoption of Children. 
 
 Be it enacted, &c. 
 Section Sect. 1. Section second of chapter three hundred 
 
 second of 
 
 sK MtB ^^^ twenty-four, of the Acts of one thousand eight 
 amended, hundred and fifty-one, is hereby so amended, that 
 if there be no mother of such child, and the father 
 shall be imprisoned in the state prison or house of 
 correction for a term of three years or upwards, 
 the consent to such adoption may be given by the 
 legal guardian of such child. 
 
 [Approved by the Governor, May 20, 1852.] 
 
 Acts of 1853. 
 
 CHAP. 31. 
 
 An Act concerning the Adoption of Children. 
 
 Be it enacted, &c. 
 
 Petition When a petition is presented to the judge 
 
 cw°d?'* of probate, for the adoption of a child, according 
 
 to the provisions of "An Act to provide for the 
 
 Adoption of Children," passed on the twenty-fourth 
 
LAW OF ADOPTION. 
 
 day of May, in the year one thousand eight 
 hundred and fifty-one, such child having no 
 known parent or next of kin and no legal guard- jad|:e^of 
 ian, the iudge of probate may appoint some^ol^t*'- 
 
 N "^ 8ome dis 
 
 discreet and suitable person to act in the proceed- ^reet per- 
 ings as the next friend of such child, and to give 
 or withhold the consent required by the second 
 section of the Act aforesaid; and in such case, 
 notice of the petition shall be given, by theNoticeto 
 publication thereof three weeks successively before 
 the day of hearing thereof, in some newspaper pub- 
 lished in the Commonwealth. 
 
 [Approved by the Governor, Feb. 25, 1853.] 
 
 , llshed. 
 
 Acts of 1853. 
 
 CHAP. 402. 
 
 An Act concerning the Adoption of Children. 
 
 Be it enacted, &c. 
 
 Sect. 1. Upon the petition of any person forPr9cednre 
 leave to adopt a child, under the provisions of the Sntty o?' 
 
 parents. 
 
 three hundred and twenty-fourth chapter of the 
 General Laws of the Commonwealth, passed in 
 the year one thousand eight hundred and fifty- 
 one, if it shall be made to appear to the judge of 
 probate, that either of the parents of such child is 
 insane, the judge shall proceed in the case in like 
 
6 MASSACHUSETTS. 
 
 manner, and to the same effect as he would be au- 
 thorized to do in case such insane person were 
 Provided, dead -.provided however, that the judge of probate 
 shall, if in his judgment it shall be expedient, ap- 
 point some discreet and suitable person to act in 
 the proceedings as the next friend of such child, 
 and give or withhold such consent. 
 
 Sec. 2. This Act shall take effect from and after 
 its passage. 
 
 [Approved by the Governor, May 25, 1853.] 
 
 Acts of 1854. 
 
 CHAP. 24. 
 
 An Act concerning the Adoption of Ghildren, and 
 the Change of Name of Person. 
 
 Be it enacted, &c. 
 Judge of When any inhabitant of the Commonwealth 
 
 probate 
 
 M?tif-™°* shall petition the judge of probate for leave to 
 ' ' adopt a child, not hife or her own, by birth, accord- 
 ing to the provisions of the three hundred and twenty- 
 fourth chapter of the Acts passed in the year eighteen 
 hundred and fifty-one, the person so petitioning, 
 may, at the same time, apply for a change of 
 name of such child, according to the provisions of 
 the two hundred and fifty-sixth chapter of the Acts 
 of the year eighteen hundred and fifty-one ; and if 
 
LAW OP ADOPTION. 
 
 the judge of probate shall decree that such adoption 
 shall take effect, he may pass the decree changing 
 the name of such child, and grant the certificate 
 provided for in said two hundred and fifty-sixth 
 chapter of the Acts passed in the year eighteen 
 hundred and fifty-one, without requiring public 
 notice to be given of such application, or of the 
 change decreed. 
 
 [Approved by the Governor, February 20, 1854.] 
 
 Acts of 1859. 
 
 CHAP. 61. 
 
 An Act in addition to an Act to provide for the 
 Adoption of Children. 
 
 Be it enacted, &c. 
 
 Sect. 1. The consent of any parent to the adop- consent of 
 
 parent not 
 
 tion of his child, shall not be required under the ^J"^'^u. 
 provisions of the three hundred and twenty-fourth tion ia 
 
 ^ ■' proved. 
 
 chapter of the Acts passed in the year one thou- 
 sand eight hundred and fifty-one, whenever it shall 
 appear by the petition, and shall be proved to the 
 satisfaction of the court, that such parent has wil- 
 fully deserted, and neglected to provide for the 
 proper care and maintenance of said child for one 
 year next preceding the filing of the petition ; but 
 
8 MASSACHSETTS. 
 
 the same proceedings may be had on the petition 
 
 as if such parent were dead. 
 Upon re- Sect. 2. Whenever any parent shall not consent 
 mnrt'shaii *^ ^^^^ adoption of his child, the court shall order 
 §f the pen- persoual notice of the pendency of the petition to 
 
 dencyof ^ c J r ^ 
 
 tton^"" be given to such parent if to be found within the 
 Commonwealth ; andif such parent cannot befound 
 therein, the petition and order of the court thereon 
 shall be published, once a week, for three successive 
 weeks, in such newspaper printed in the county 
 where the petition is pending, as the court shall 
 direct, the last publication to be at least four weeks 
 before the time appointed for the hearing : and the 
 
 Parent court may order any further notice that it may 
 
 may apply 
 
 vereaiof deem necessary or proper; and any parent who 
 &c!™* ' shall not have had personal notice of said petition, 
 may apply to the Supreme Judicial Court for a re- 
 versal of the decree of adoption at any time With- 
 in one year after actual notice thereof, and the 
 said court may, after due notice, reverse said de- 
 cree, if it shall be proved that the parent applying 
 for a reversal, had not so wilfully deserted or neg- 
 lected to provide for his child. 
 [Approved, February 26, 1859.] 
 
LAW OF ADOPTION. 
 
 By the Act establishing the Geaeral Statutes, they were " to 
 take effect and go into operation, from aud af(er the thirty-first 
 day of May, in the year eighteen hundred and sixty." 
 
 The following Acts were expressly repealed from that date : 
 Laws of 1851, chap. 324. 
 
 1852, chap. 262. 
 
 1853, chap. 41 and 402. 
 
 1854, chap. 24. 
 1859, chap. 61. 
 
 From May 31, 1860, the law stands next as given in the 
 General Statutes, as follows : 
 
 G-eneral Statutes. 
 
 CHAP. 110. 
 
 Of the Adoption of Children and Change of Names. 
 
 Adoption of Children. Sec. 
 
 Sec. 8. Rights of natural parents taken 
 
 1. Petition for adoption of a child. away, &c. 
 
 2. Consent thereto must be given 9. Appeals. 
 
 by parents, &c. 10. When decree may be reversed. 
 
 3. When either parent is insane &c. 
 
 4. Proceedings if parent does not CJiange of Names. 
 
 consent. 11. Change of names, how law- 
 
 5. Consent by child. fully made. 
 
 6. Proceedings and decree of adop- 13. Notice and certificate. 
 
 tion. 13. Change ofchild's name in case 
 
 7. Relation and rights between of adoption. 
 
 child and parents by adop- 14. Returns of changes of names 
 tion. to be made, &c. 
 
 Adoption of Children. 
 
 Sect. 1. Any inhabitant of this State may peti-p^jiji^j, 
 tion the Probate Court in the county of his residence, t?on o'f^'a 
 
 '' ' child. 
 
 for leave to adopt a child not his own, and, if de- iaVsI^I^ 
 
 9 See S lii. 
 
10 MASSACHUSETTS. 
 
 sired, for a change of the child's name ; but the 
 prayer of such petition by a person having a husband 
 or wife shall not be granted unless the husband or 
 wife joins therein. 
 Consent Sect. 2. The parents of the child, or the survivor 
 
 thereto 
 
 ^?lnby of them, shall, except as herein provided, consent 
 
 parents, , , , i i • -rn • i 
 
 i85i?24S2 '^^ writing to such adoption, li neither parent is 
 1863,' 3if' living, the guardian of the child, or if there is no 
 guardian, the next of kin in this State, may give 
 such consent ; or if there is no next of kin, the 
 court may appoint some suitable person to act in 
 the proceedings as next friend of the child, and to 
 give or withhold such consent. 
 When Sect. 3. If either parent is insane, or imprisoned 
 
 either pa- 
 rent is in 
 
 sane &r lu the state prison, or a house of correction, un- 
 less,' 4oa. 
 i859,6i,§i. der a sentence for a term not less than three 
 
 years, or has wilfully deserted and neglected to 
 provide proper care and maintenance for the child 
 for one year next preceding the time of filing the 
 petition, the court shall proceed as if such parent 
 were dead, and in its discretion, may appoint some 
 suitable person to act in the proceedings as next 
 friend of the child, and give or withhold the con- 
 sent aforesaid. 
 Proceed- Sect. 4. If a parent does not consent to the adop- 
 noTcon"* tion of his child, the court shall order a copy of 
 i859,'6i,§a. the petition and order thereon to be served on him 
 personally, if found in the State, and if not, to be 
 published once a week for three successive weeks. 
 
LAW OF ADOPTION. 11 
 
 in such newspaper printed in the county as the 
 court directs, the last publication to be at least 
 four weeks before the time appointed for the hear- 
 ing. Like notice shall also be published when a 
 child has no parent living, and no guardian nor 
 next of kin in this State. The court may order 
 such further notice as it deems necessary or proper. 
 Sect. 5. If the child is of the age of fourteen years consent 
 
 ° ■'by child. 
 
 or upwards, the adoption shall not be made with- if^' ^''*' 
 
 out his consent. 
 
 Sect. 6. If upon such petition so presented and Proceed- 
 ings and 
 
 consented to, the court is satisfied of the identity adoption' 
 
 , , , . . 1861,324,§3. 
 
 and relations of the persons, and that the petitioner 
 is of sufficient ability to bring up the child, and 
 furnish suitable nurture and education, having re- 
 ference to the degree and condition of its parents, 
 and that it is fit and proper that such adoption 
 should take effect, a decree shall be made setting 
 forth the facts, and ordering that from the date of 
 the decree the child shall to all legal intents and 
 purposes be the child of the petitioner. 
 
 Sect. 7. A child so adopted shall be deemed, for Relation 
 
 , 11. 11 1 and rifljhtB 
 
 the purposes of inheritance by such child, and all c^'iya^d 
 other legal consequences and incidents of the SaopHon.^ 
 
 ° ^ 1861, 324, 
 
 natural relation of parents and children, the child ^^' 
 of the parents by adoption, the same as if he had 
 been born to them in lawful wedlock ; except that 
 he shall not be capable of taking property expressly 
 limited to the heirs of the body or bodies of the 
 
12 MASSACHUSETTS. 
 
 parents by adoption, nor property from the lineal 
 or collateral kindred of such parents by right of 
 representation. 
 Eights of Sect. 8. The parents of such child shall be de- 
 
 natural 
 
 taklS'^ prived by the decree of all legal rights as respects 
 
 away, &c. 
 
 i86i,3a4,§7. the child ; and the child shall be freed from all 
 obligations of maintenance and obedience as re- 
 spects his parents. 
 
 Appeals. Sect. 9. Any petitioner may appeal to the ,Su- 
 
 ^^- preme Judicial Court from the decree of the Pro- 
 
 bate Court on such petition, in like manner as 
 appeals may be taken from other decrees of that 
 court ; and any child made the subject of such pe- 
 tition, may by a next friend appeal in like manner ; 
 but no bond shall be required, or costs awarded 
 against such child or next friend. 
 
 When Sect. 10. A parent who has not, before the hear- 
 
 decree , • • /» i 
 
 maybe mg upon a petition for the adoption of his child, 
 
 reversed. o r i jr ? 
 
 59,6i,§2. j^^^ personal notice thereof, may, at any time 
 within one year after actual notice, apply to the 
 Supreme Judicial Court to reverse the decree. Said 
 court, after due notice, may, in its discretion, re- 
 verse the same, if it appears that any of the mater- 
 ial allegations in the petition were not true. 
 Change of Names. 
 Sect. 11. 
 
 _, ^ , Kefer to change of name. 
 
 Sect. 12. 
 
 chanpof Sect. 13. If in a petition for the adoption of a 
 namem g^ild, a change of the child's name is requested, 
 
LAW OF ADOPTION. 13 
 
 the court, upon decreeing the adoption, may f^^so case of ^ 
 decree such change of name, and grant a certificate ^^*' ^' 
 thereof, without the notices required by the preced- 
 ing section. 
 
 Sect. 14. Returns to be made &c. 
 
 Acts of 1864. 
 
 CHAP. 213. 
 
 An Act iri relation to the Adoption of Children. 
 
 Be it enacted, &c. 
 
 Sect. 1. Whenever, in case of proceedings hadpnijiica- 
 
 tiou of 
 
 under chapter one hundred and ten of the general p^"*X- 
 statutes, for leave to adopt a child, the name of a name of 
 
 ' ^ parent is 
 
 parent entitled to notice thereof is unknown to the ?" cSS™ 
 court, and the petitioners shall make affidavit that 
 they do not know, and cannot ascertain the same, 
 although they have in good faith endeavored to 
 ascertain it, the court shall order publication of 
 the petition, and such affidavit, and of its own 
 order thereon, to be made once a week, for three 
 successive weeks, in at least one newspaper pub- 
 lished in the county where the petition is filed, to- 
 gether with such other publication as it may deem 
 proper, if any, the last publication to be at least 
 four weeks before the time appointed for the hear- 
 ing. 
 
14 MASSACHUSETTS. 
 
 Age and Skct. 2. The affidavit shall set forth the age, as 
 
 name of 
 
 of cns'S* nearly as may be, and the true name of such child, 
 
 dian to be i • i 
 
 set forth, jf knowH, and any other name or names by which 
 it may have been known and called, and -the per- 
 sons within whose custody it has usually been, and 
 is at the time of making the said affidavit. 
 
 Parents Sect. 3. If thc parcnts, or the survivor of them, 
 
 Dotap- ^ 
 
 court°Jay shall uot appear after such notice, the court may, 
 
 appoint 
 
 friend ^^ ^^^ discretiou, appomt some suitable person to 
 act in the proceedings as next friend of the child, 
 and to give or withhold consent in writing, to the 
 adoption thereof 
 
 [Approved, May 11, 1864.] 
 
 Acts of 1869. 
 
 CHAP. 189. 
 
 An Act concerning the Adoption of Ghildren. 
 
 Be it enacted, &c. 
 A child Sect. 1. When a petition is made to adopt a 
 
 above 
 
 onlma'y child above the age of twenty-one years, the court 
 
 he adopted - - i i it 
 
 withoat may grant the same, without any public notice, 
 notice. ypQjj i^jjg consent of the child, and of any surviv- 
 ing parent whose name and residence is known to 
 such child. 
 
LAW OF ADOPTION. 15 
 
 Sect. 2. This Act shall take effect upon its 
 passage. 
 
 [Approved, April 22, 1869.] 
 
 Acts of 1870. 
 
 CHAP. 92. 
 
 An Act for the Protection of Destitute Children. 
 
 Be it enacted, &c. 
 
 Sect. 2. When the parents, surviving parent, or 
 guardian, where neither parent is living, of an in- fo adop™ 
 
 tion of 
 
 fant under twelve years of age, shall, by an instru- gave^ame 
 ment in writing, acknowledged before some one pubuca- 
 
 '^' ° tion under 
 
 having the powers of a justice of the peace, delegate p)f'""' 
 to the directors or managers of any incorporated 
 charitable institution authorized to accept the 
 same, the custody of such infant, and renounce 
 all future control over the same, the consent of the 
 directors or managers of such institution, to the 
 adoption of such child according to the general 
 laws regulating adoption, shall have the same effect 
 as publication under the fortieth* section of chapter 
 one hundred and ten of the General Statutes : pro- 
 vided, further, that a copy of the writer's consent 
 shall be spread on the record of the case of adop- 
 tion, and the decree of the judge be recorded in 
 
 * Should be "fourth." 
 
16 MASSACHUSETTS. 
 
 the Probate Court in the county from whence the 
 child was taken by the managers, and in the 
 county where the decree is made. 
 
 Sect. 3. 
 
 f These refer to other matters. 
 
 Sect. 4. 
 
 [Approved, March 19, 1870.] 
 
 Acts of 1870. 
 
 CHAP. 371. 
 
 An Act to Amend Ghapttr 92, &g. 
 
 Be it enacted, &c. 
 Amend- Sect. 1. Section two, of chapter ninety-two, of 
 
 znent to 
 
 1870, 92,§8. the Acts of the year eighteen hundred and seventy 
 is hereby amended by striking out the word 
 " fortieth " in the eleventh line,* and inserting in- 
 stead thereof, the word "fourth." 
 
 Sect. 2. This Act shall take effect upon its 
 passage. 
 
 [Approved, June 18, 1870.] 
 
 * This reference is to one edition only of the Acts and Re- 
 solves : the correction is noted on the previous page of our text. 
 
Law op adoption. 17 
 
 Acts of 1871. 
 
 CHAP. 310. 
 An A.CT in relation to the Adoption of Ghildren. 
 
 Be it enacted, &c. 
 
 Sect. 1. Any person may petition the Probate Petition 
 
 '' ^ •' '^ for leave 
 
 Court in the county of his residence, for leave to I°chii'?by 
 
 1 . 1 'PI • • • • perBon not 
 
 adopt a child, and if the petitioner is not an m- J,^''g^jjjf^„* 
 habitant of this State, such petition may be made in cmnty 
 to the Probate Court in the county where theeidel'^ 
 
 Proviso. 
 
 child resides ; but the prayer of such petition by a 
 person having a husband or wife, shall not be 
 granted unless the husband or wife joins therein. 
 
 Sect. 2. No decree for such adoption shall be Decree not 
 
 *■ to be made 
 
 made, except as hereinafter provided, without the wiiK 
 
 consent of 
 
 written consent of the surviving parent or parents §* cui/f/ 
 
 flbovfi 
 
 of the child, of the guardian of the child, if any, fourteen. 
 and of the child if above the age of fourteen years. 
 
 Sect. 3. If either parentis unknown, or adjudged consent of 
 
 parent not 
 
 hopelessly insane, or imprisoned in the state prison Jn'^certefn 
 
 ^ f • -I p cases if 
 
 or a house of correction under sentence for a term visiting 
 
 agent of 
 
 not less than three years, or has wilfully deserted sentsto™" 
 
 adoption. 
 
 and neglected to provide proper care and mainten- 
 ance for such child for one year next preceding the 
 date of the petition, or suffered such child to be 
 supported by any charitable institution incorpor- 
 ated by law, or as a pauper by any city or town. 
 
18 MASSACHUSETTS. 
 
 or by the State, for more than one year continu- 
 ously prior to the petition, the consent of such 
 parent shall not be required ; provided the visiting 
 agent of the board of State charities shall in writ- 
 ing consent to such adoption. 
 Incase Sect. 4. If both parents are dead, the guardian, 
 
 bothpa- 
 
 dead "'^ if any, and if there is no guardian, said visiting 
 agent and the next of kin in this State, may give 
 such consent. 
 
 ifparent Sect. 5. Whenever the parent, if living, does 
 
 does not . 
 
 pe?8onai ^'^^ conseut, the court shall order notice of the 
 
 notice to 
 
 be given pcudency of the petition by personal service on such 
 petiuon! parent of a copy of the petition and order thereon, 
 or if such parent is not found within the State, 
 by publication thereof once a week, for three suc- 
 cessive weeks, in such newspaper or newspapers as 
 the court shall order, the last publication to be 
 seven days at least before the time appointed for 
 the hearing. And in any case, the court may 
 order such additional, notice and consent as may 
 be deemed proper. 
 Anadnit Sect. 6. A persou of adult age may be adopted 
 
 may be 
 
 Spm'his i^ 1^^^ manner upon his own consent, without 
 
 own con- i ■ i • 
 
 cent. other consent or notice. 
 
 Decree Sect. 7. If Satisfied of the identity and relations 
 
 maybe 
 
 Sild&c*' of tti6 parties, and that the petitioner is of suflfi- 
 
 Bhall be , , . , 
 
 "'etltioner ^leut ability to bring up the child and furnish 
 
 cSanged.^ Suitable nurture and education, and that it is proper 
 
 such adoption should take effect, the court shall 
 
LAW OF ADOPTION. 19 
 
 make a decree ordering that the child or person 
 shall thereafter be to all legal intents and purposes 
 the child of the petitioner, and may also decree 
 such change of name as the petitioner may pray 
 for. 
 
 Sect. 8. A child or person so adopted shall beinheri- 
 
 ^ ■*■ tanee of 
 
 deemed for the purpose of inheritance, and all^y"^^''^ 
 
 adopted 
 
 other legal consequences of the natural relation of '="'^- 
 parent and child, to be the child of the parent 
 or parents by adoption, as if born to them in law- 
 ful wedlock, except that he shall not take property 
 expressly limited to the heirs of the body or bodies 
 of the parents by adoption, nor property from the 
 lineal or collateral kindred of such parents by 
 right of representation. 
 
 Sect. 9. Such adoption shall terminate all the Adoption 
 
 to termi - 
 
 rights, obligations, and legal incidents and conse- °^*^jf ^^^ 
 quences of the relation of parent and child, between cwidand 
 
 ■*■ ■*■ ' natural 
 
 the child or person and his natural parents, except Scept' 
 
 &c, 
 
 the right of the child or person to take property 
 as heir or next of kin of his natural parents or 
 kindred directly, or by right of representation. 
 
 Sect. 10. Any person aggrieved by an order. Parties 
 
 aggrieved 
 
 denial or decree of the Probate Court on such peti-™"^^ op- 
 tion, may appeal therefrom to the Supreme Judi- 
 cial Court in like manner as appeals may be taken 
 from other decrees of that court ; and the Supreme 
 Judicial Court in its discretion, may allow any 
 parent who had no personal notice of the proceed- 
 
20 MASSACHUSETTS. 
 
 ings before the decree, to appeal at any time with- 
 in one year after actual notice thereof. 
 Eepeai. Sect. 11, The first ten sections of chapter one 
 
 [Gen. Stat. 
 
 §i-Ki'.i86i hundred and ten of the General Statutes, chapter 
 1869 chap, two hundred and thirteen of the Acts of eighteen 
 
 189. loiO, 
 
 chap! 90?' hundred and sixty-four, chapter one hundred and 
 eighty-nine of the Acts of eighteen hundred and 
 sixty-nine, chapter three hundred and seventy-one 
 and section two of chapter ninety-two of the Acts 
 of eighteen hundred and seventy, are hereby re- 
 pealed. 
 
 [Approved, May 18, 1871.] 
 
 Acts of 1872. 
 
 CHAP. 311. 
 
 An Act in relation to the Adoption of Children. 
 
 Be it enacted, &c. 
 Amend- Sect. 1. Section two of chapter three hundred 
 
 ments to 
 
 ?ern*ing *"<! ^^n of the Acts of the year eighteen hundred 
 
 the adop- .. 
 
 chM?en ^^^ seventy-one is hereby amended by adding the 
 §§8,' 3. ' words " and a giving up of the child in writing for 
 the purpose of adoption to any charitable institu- 
 tion incorporated by law, shall operate as a con- 
 sent to any adoption subsequently approved by 
 
LAW OF ADOPTION. 21 
 
 such institution." Section three x)f the same chap- 
 ter is hereby amended by striking out the words 
 "provided the visiting agent of the board of State 
 charities shall in writing consent to such adoption." 
 
 Sect. 2. Section four of the same chapter is Amend- 
 ment to 
 
 hereby amended by striking out all after the word glj''^^"- 
 " dead " in the first line, and substituting therefor 
 the words " due notice of such petition shall be 
 given to the guardian, if any, and to the next of 
 kin in this State, and in all cases where such child 
 is supported by any charitable institution incor- 
 porated by law, or as a pauper by any city or town, 
 or by the State, due notice of said petition shall 
 be given to the visiting agent of the board of State 
 charities." 
 
 Sect. 3. Section five of the same chapter is Amend- 
 ment to 
 hereby amended by adding the words " provided, Jf • ^^''• 
 
 that nothing in this Act contained, shall be con- 
 strued to require notice to the father of an illegiti- 
 mate child, or any other parent whose consent is 
 dispensed with by section three." 
 [Approved, May 3, 1872.] 
 
22 MASSACHUSETTS. 
 
 The Law of the Adoption of Children as it stands 
 since the Amendments of May 3, 1872, and talc- 
 ing effect on tlie thirtieth day after said date* 
 
 Acts of 1871. 
 
 CHAP. 310, AS AMENDED. 
 
 Sect. 1. Any person may petition the Probate 
 Court in the county of his residence for leave to 
 adopt a child, and if the petitioner is not an in- 
 habitant of this State, such petition may be in the 
 Probate Court in the county where the child re- 
 sides ; but the prayer of such petition by a person 
 having a husband or wife, shall not be granted un- 
 less the husband or wife joins therein. 
 
 Sect. 2. No decree for such adoption shall be 
 made, except as hereinafter provided, without the 
 written consent of the surviving parent or parents 
 of the child, of the guardian of the child, if any, 
 and of the child if above the age of fourteen years : 
 and a giving up of the child in writing for the pur- 
 pose of adoption to any charitable institution in- 
 corporated by law, shall operate as a consent to 
 any adoption subsequently approved by such in- 
 stitution. 
 
 Sect. 3. If either parent is unknown, or ad- 
 judged hopelessly insane, or imprisoned in the state 
 prison or a house of correction under sentence for 
 * General Statutes, chapter 3, § 6. 
 
Law of adoption. 23 
 
 a term not less than three years, or has wilfully 
 deserted and neglected to provide proper care and 
 maintenance for such child for one year next pre- 
 ceding the date of the petition, or suffered such 
 child to be supported by any charitable institution 
 incorporated by law, or as a pauper by any city 
 or town, or by the State, for more than one year 
 continuously prior to the petition, the consent of 
 such parent shall not be required. 
 
 Sect. 4. If both parents are dead, due notice of 
 such petition shall be given to the guardian, if any, 
 and to the next of kin in this State, and in all 
 cases where such child is supported by any chari- 
 table institution incorporated by law, or as a pauper 
 by any city or town, or by the State, due notice 
 of said petition shall be given to the visiting agent 
 of the board of state charities. 
 
 Sect. 5. Whenever the parent, if living, does 
 not consent, the court shall order notice of the 
 pendency of the petition by personal service on 
 such parent of a copy of the petition and order 
 thereon, or if such parent is not found within the 
 State, by publication thereof once a week, for 
 three successive weeks, in such newspaper or news- 
 papers, as the court shall order, the last publication 
 to be seven days at least before the time appointed 
 for the hearing. And in any case, the court may 
 order such additional notice and consent, as may 
 be deemed proper. Provided, that nothing in this 
 
24 MASSACHUSETTS. 
 
 Act contained shall be construed to require notice 
 to the father of an illegitimate child, or any other 
 parent whose consent is dispensed with by section 
 three. 
 
 Sect. 6. A person of adult age may be adopted 
 in like manner upon his own consent without other 
 consent or notice. 
 
 Sect. 7. If satisfied of the identity and relations 
 of the parties, and that the petitioner is of sufficient 
 ability to bring up the child and furnish suitable 
 nurture and education, and that it is proper such 
 adoption should take effect, the court shall make 
 a decree ordering that the child or person shall 
 thereafter be to all legal intents and purposes the 
 child of the petitioner, and may also decree such 
 change of name as the petitioner may pray for. 
 
 Sect. 8. A child or person so adopted shall be 
 deemed for the purpose of inheritance, and all 
 other legal consequences of the natural relation of 
 parent and child, to be the child of the parent or 
 parents by adoption, as if born to them in lawful 
 wedlock, except that he shall not Jtake property 
 expressly limited to the heirs of the body or bodies 
 of the parents by adoption, nor property from the 
 lineal or collateral kindred of such parents by right 
 of representation. 
 
 Sect. 9. Such adoption shall -terminate all the 
 rights, obligations, and legal incidents and conse- 
 quences of the relation of parent and child, between 
 
LAW OP ADOPTION. 25 
 
 the child or person, and his natural parents, except 
 the right of the child or person to take property as 
 heir or next of kin of his natural parents or kin- 
 dred directly, or by right of representation. 
 
 Sect. 10. Any person aggrieved by any order, 
 denial, or decree of the Probate Court on such peti- 
 tion, may appeal therefrom to the Supreme Judi- 
 cial Court in like manner as appeals may be taken 
 from other decrees of that court ; and the Supreme 
 Judicial Court in its discretion, may allow any 
 parent who had no personal knowledge of the pro- 
 ceedings before the decree, to appeal at any time 
 within one year after actual notice thereof 
 
26 MASSACHUSETTS. 
 
 SEWALL V. ROBEETS. 
 
 The only important case yet decided in Massachusetts is the 
 following one reported in 115 Mass. The statement is as follows. 
 
 On the 2d of June, 182.'), the Massachusetts flospital Life 
 Insurance Company, " in consideration of the principal sum of 
 $100,000 received by them of Nathaniel Curtis and Isaac Clapp, 
 trustees of Robert Roberts, of Boston, in the State of Massachu- 
 setts, in trust," executed a certain contract to the following effect. 
 The company agreed to manage the property for one-half per 
 centum per annum, and to pay over the interest received, less 
 charges, to the said Robert Roberts during his life. And it 
 further agreed to pay over the principal sum (less any amounts 
 lost without the fault of the company), on the decease of the 
 said Roberts, to his executors or administrators, " in trust for 
 the special use and benefit of any child or children of said 
 Robert Roberts : if one only, in trust for his or her use and 
 benefit ; if more than one, for their use and benefit equally, the 
 legal representatives to take their parents' share ; and in case 
 the said Robert Roberts shall die without leaving any issue, 
 then at his decease to pay said principal sum to his mother, 
 Eliza Roberts, for her own use ; but in case the said Robert 
 Roberts shall die without leaving any lawful issue, and his said 
 mother shall die before him, then at his decease to pay said 
 principal sum to his executor or executors, administrator or 
 administrators, in trust for the use of his heirs-at-law and the 
 heirs-at-law of his said mother, equally to be divided between 
 them." 
 
 The court says, " The source from which Curtis and Clapp 
 received this sum is not directly stated in the report ; but the 
 only fair inference from the facts stated is, that it was a part of 
 the estate of Robert Roberts, Jr., which came to him by inher- 
 itance from his father. For the purposes of this suit, the sum 
 deposited is to be regarded as deposited by Robert Roberts, 
 Jr" 
 
SEWALL V. ROBERTS. 27 
 
 The report shows th^t the Robert Roberts of the trust was 
 the sole heirat-law of Robert Roberts, Sen., who died about 
 Feb. 1, 1825, leaving an estate of about $300,000, of which the 
 said Curtis and Clapp were administrators. The widow Eliza- 
 beth received one-third, and the son received the rest. There 
 was no probability that the trust was made by order of the father, 
 though, as both Curtis and Clapp were dead when the suit was 
 brought, no direct evidence was obtainable. 
 
 In 1855, Robert Roberts married Helen M. Brown^ and on 
 the 17th July, 1855, Mr. and Mrs. Roberts and his mother 
 made an indenture with Nathaniel Curtis, Jr., by which 
 R. Roberts and his mother assigned their interests in the exist- 
 ing trust to Curtis, in trust, to pay the income to the said 
 Helen M. Roberts during her life, with a provision for the 
 reversion at her death. 
 
 Again, on the 27th March, 1865, (Mrs. Elizabeth Roberts, 
 the mother, having died, in the latter part of 1855), Robert 
 Roberts undertook, by an indenture, to ratify and confirm the 
 preceding indenture. 
 
 On May 7, 1864, Robert Roberts was appointed by the 
 Judge of Probate for Norfolk county, guardian of Ada Parker, 
 her parents being dead, but her grandparents assenting. No 
 guardian ad litem was appointed nor was the assent of any one 
 acting as next friend to the ward asked for. * 
 
 On the 1st April, 1865, by a decree of the Probate Court for 
 Norfolk, the said Robert and Helen M. Roberts were allowed 
 and authorized " to adopt Ada Parker, a child under the age of 
 fourteen years, child of Charles U. Parker, late of Fitzwilliam, 
 in the county of Cheshire, deceased, and his wife deceased," 
 and her name was changed to Ada Parker Roberts. In these 
 proceedings Roberts assented as guardian, but the records did 
 not show that the grandparents had notice : no guardian ad 
 litem was appointed and no one acted as next friend of Ada. * 
 
 On the 3d April, Robert Roberts made his will, giving the 
 income of said trust to his wife Helen M. during her life, and 
 
 * These points are men tioned, as a side question arose as to the techni- 
 cal legality of the adoption. The Court decided that at most these 
 irregularities would render the act of adoption voidable by the infant 
 at her election, and that a stranger could not avoid it to her injury. 
 
28 MASSACHUSETTS. 
 
 at her death one-half of said income to his " daughter by adop- 
 tion," Ada Parker Roberts, and the other half to Helen S. 
 Brown and Susan H. Brown, children of Henry S. Brown, of 
 Milwaukee. By the same will he disposed of his other property, 
 about which there was no dispute. 
 
 Eobert Roberts died in April, 1872, leaving a widow, Helen 
 M., but no issue or child, except the adopted daughter, Ada 
 Parker Roberts, who is still living. 
 
 In the litigation which ensued after Roberts's death several 
 different interests were involved. If the first contract, the one 
 with the Insurance Company, was irrevocable and complete, the 
 question whether Ada Parker Roberts was such a child of 
 Roberts as was therein contemplated, overshadowed all others. 
 
 In case she was not, the claim of the widow and the adopted 
 daughter rested partly, and that of the two Browns rested solely, 
 on the right of Roberts to make a will which really revoked the 
 original trust. 
 
 Again, the heirs-at-law of Robert Roberts and the heirs-at- 
 law of his mother, Elizabeth Roberts, presented their claims, 
 holding that the trust-deed was irrevocable, but that Ada Parker 
 Roberts did not take under it. The point was fully argued 
 that the benefit of the trust was to enure only to a child law- 
 fully procreated by Roberts, and that the la\^ did not and could 
 not place an adopted child in that position. The question was 
 thus presented in its simplest form, and the court was brought 
 to the consideration of the intent of the act in its broadest ap- 
 plication. 
 
 As the Supreme Court decided that the deed was irrevocable, 
 and that Ada was the sole beneficiary under it, the other ques- 
 tions were not considered. It declared that, in Massachusetts, 
 the law was well settled, that a voluntary settlement fairly made 
 could not be revoked, unless a power of revocation was reserved; 
 and that, though a court of equity would not aid in perfecting 
 such a contract while executory, it would enforce an executed 
 contract. Hence the terms of this trust were to be fulfilled, 
 and Robert's second indenture was invalid, as was his will so 
 far as it affected this trust-fund. 
 
 The important question was therefore, whether, since Roberts 
 had no legal issue born of his body, his adopted daughter ful- 
 
SEWALL V. EGBERTS. 29 
 
 filled the requirements of the trust. Certain technical objec- 
 tions were made to the form of adoption used by Roberts, but 
 the court decided that he had complied with the statute. The 
 opinion then proceeds as follows : — 
 
 " "We are of opinion, therefore, that the adoption 
 was valid, and the next inquiry is. What are the 
 rights of the adopted daughter under her father's 
 settlement ? 
 
 " The statute provides that 'A child so adopted 
 shall be deemed, for the purposes of inheritance by 
 such child and all other legal consequences and 
 incidents of the natural relation of parents and 
 children, the child of the parents by adoption, the 
 same as if he had been born to them in lawful 
 wedlock ; except that he shall not be capable of 
 taking property expressly limited to the heirs of 
 the body or bodies of the parents by adoption, nor 
 property from the lineal or collateral kindred of 
 such parents by right of representation.' Gen. 
 Stat. c. 110, § 7. 
 
 " This language is very broad and comprehen- 
 sive, and it was manifestly the intention of the 
 legislature to provide that, with the exceptions 
 named, the adopted child should, in the words of 
 the sixth section, ' to all legal intents and purposes, 
 be the child of the petitioner.' 
 
 " The adopted child in this case, therefore, in 
 construing her father's settlement, must be re- 
 garded in the light of a child born in lawful wed- 
 
30 MASSACHUSETTS. 
 
 lock, unless the property disposed of by the settle- 
 ment falls within one of the exceptions. 
 
 - " It is true that, if she takes under the settle- 
 ment, the property does not come to her by inherit- 
 ance, but it comes to her as one of the legal 
 consequences and incidents of the natural relation 
 of parents and children. Does it fall within either 
 exception of the statute? It cannot be claimed 
 that it falls within the last exception as property 
 from the kindred of the parents by right of repre- 
 sentation. 
 
 " The other exception is that she cannot take 
 property ' expressly limited to the heirs of the body 
 or bodies of the parents by adoption.' The term 
 ' heir of the body ' is a well-established technical 
 term, with which the words ' children' or ' issue' 
 or ' lawful issue' are not synonymous. The rule of 
 construction enjoined by our statutes is that techni- 
 cal words or phrases, which have acquired a peculiar 
 and appropriate meaning in the law, shall be con- 
 strued and understood according to such peculiar 
 and appropriate meaning, unless it is inconsistent 
 with the manifest intent of the legislature or re- 
 pugnant to the context. Gen. Stat. c. 3, § 7. 
 
 "The language of the statute shows that the 
 legislature intended to use the phrase ' heirs of the 
 body' in its primary technical sense. The terms 
 of the settlement, above cited, do not limit the es- 
 tate expressly ' to the heirs of the body' of Roberts ; 
 
SEWALL V. EGBERTS. 31 
 
 and the terms therein used, ' child or children,' 
 'issue' and 'lawful issue,' are not equivalent terms 
 and do not lead to the same construction and legal 
 result as would be reached if the estate was in di- 
 rect words limited to the heirs of his body. We 
 are therefore of opinion that the case does not fall 
 within either of the exceptions of the statute, and 
 that, as to the property in question, Ada Parker 
 Roberts is to be deemed the child of Robert Roberts, 
 the same as if she had been born to him in lawful 
 wedlock. It follows that, in the contingency which 
 has happened, she is, as such child, entitled to the 
 whole of the principal fund. 
 
 " It is argued that this statute is unconstitutional 
 as applied to a settlement made before its passage, 
 because it takes property from one person and gives 
 it to another. But, until the death of the settler, 
 it was uncertain what persons would take under 
 the settlement, and no title ever vested in those 
 who are now claiming as his heirs, or the heirs of 
 his mother, against his adopted daughter. The 
 statute is an important one, general in its applica- 
 tion, and passed by the legislature as the guardians 
 of the public interests, and is to be upheld, unless 
 it clearly exceeds their powers. Much more exten- 
 sive powers have been exercised, without question, 
 in the enactment of statutes affecting tenures and 
 the interests of persons unborn or having remote 
 expectations. Such was the St. of 1791, c. 61, 
 
32 MASSACHUSETTS. 
 
 giving to tenants in tail the power to bar bj deed 
 the issue in tail ; and the St. of 1804, c. 59, provid- 
 ing a method for barring remainders and re- 
 versions expectant on estates tail ; and the St. 
 of 1851, c. 14, § 1, for the barring of equitable es- 
 tates tail ; Clarhe v. Cordis, 4 Allen, 466. An 
 instance more nearly like the statute we are consi- 
 dering, is found in the provisions first enacted in 
 the revision of 1836, that an illegitimate child, if 
 his parents intermarry, and his father acknowledge 
 him, shall be considered as legitimate to all intents 
 and purposes. Rev. Sts. c. 61, §4; St. 1853, c. 
 253. And in Loring v. Thorndike, 5 Allen, 257, 
 it was held thab this statute gave to an illegitimate 
 child the same rights which a child born in lawful 
 wedlock would have, under a will proved before 
 the statute was passed. 
 
 The fact that the statute, as one of its incidental 
 effects, changes the descent and devolution of pro- 
 perty, does not render it invalid, unless it defeats 
 vested rights. As we have seen, in the contingency 
 which has happened in this case, no rights adverse 
 to the adopted daughter had vested in the heirs 
 who now claim, and therefore none have been de- 
 feated or impaired. 
 
 " It is also argued that the result we have reached 
 is opposed to the intention of the settler. But, as 
 is often the case in deeds or wills providing for a 
 remote future, he could have had no intentions as 
 
SEWALL V. ROBERTS. 
 
 to the particular person who was to take. His 
 general intention was that the property should go 
 in the first instance to his children as a class. 
 Whoever at his death fell within this class was 
 within this general intention ; and, as his adopted 
 daughter is by law his child, she belongs to the 
 class intended to take, and her rights cannot be 
 defeated upon the assumption that he did not in- 
 tend her to take. 
 
 " The views we have taken render immaterial 
 the other questions argued at the bar. 
 
 " The result of the whole case is, that Ada Par- 
 ker Roberts, as the only child of Roberts the settler, 
 is entitled to receive the whole of the principal of 
 the trust fund. 
 
 " Decree accordingly." 
 
 33 
 
34 
 
 LEGISLATION 
 
 In States Othee Than Massachusetts. 
 
 Acts in relation to 
 
 Adoption have bet 
 
 States besides Massachusetts ; viz : 
 
 Maine, 
 
 Illinois, 
 
 New Hampshire, 
 
 Michigan, 
 
 Vermont, 
 
 Iowa, 
 
 Rhode Island, 
 
 Wisconsin, 
 
 Connecticut, 
 
 Kansas, 
 
 Ohio, 
 
 Oregon, 
 
 Indiana, 
 
 California, 
 
 Pennsylvania, 
 
 Tennessee, 
 
 Missouri, 
 
 North Carolina, 
 
 Georgia, 
 
 Louisiana, 
 
 Texas. 
 
 In this apportionment the influence of New England, and 
 especially of Massachusetts, will be apparent. New York is 
 conspicuously absent. 
 
 In citing the statutes of the various States, the intention has 
 been to give the latest Acts, and to give only that portion of 
 each statute which defined the rights bestowed upon a child by 
 adoption. 
 
 In nearly every State the forms of adoption are simple, but 
 the effect of the proceeding varies greatly as will be seen. 
 
MAINE. 35 
 
 MAINE. 
 
 REVISED STATUTES, 1871. 
 
 Title vi, Chap. 67. 
 
 Sect. 28. " Any inhabitant of this State not 
 married, or any husband and wife jointly, may 
 petition the judge of probate for their county for 
 leave to adopt a child not theirs by birth, and for a 
 change of his name." 
 
 Sect. 31. "By such decree the natural pa- 
 rents shall be divested of all legal rights in respect 
 to such child, and he shall be free from all legal 
 obligations of obedience and maintenance in re- 
 spect to them ; and he shall be, for the custody of 
 the person and right of obedience and mainten- 
 ance, to all intents and purposes, the child of his 
 adopters, as if they had been his natural parents. 
 But such adoption shall not affect any rights of 
 inheritance, either of the child adopted, or of the 
 children or heirs of his adopters." 
 
36 ^ NEW HAMPSHIRE. 
 
 NEW HAMPSHIRE. 
 
 GENERAL STATUTES, 1867. 
 
 Chap. 169. (Act of 1862.) 
 
 Sect. 1. Any inhabitant, &c., may petition, but 
 the husband or wife must join. 
 
 Sect. 4. " A child so adopted shall be, for the 
 purposes of inheritance by such child and all other 
 legal consequences and incidents of the natural 
 relation of parents and children, the child of the 
 parents by adoption, the same as if he had been 
 born to them in lawful wedlock, except that he 
 shall not be capable of taking property expressly 
 limited to the heirs of the body or bodies of the 
 parents by adoption." 
 
 Sect. 5. " The natural parents of the child shall 
 be deprived, by the decree, of all legal rights as re- 
 spects the child ; and the child shall be freed from 
 all obligations of maintenance and obedience as 
 respects his natural parents. 
 
VERMONT. 37 
 
 VERMONT. 
 
 GENERAL STATUTES, 1862, AND APPENDIX, 
 
 1870. 
 
 Chap. 56. (Acts of 1853, No. 50 ; Acts of 1863, 
 No. 22, Referred to.) 
 
 Sect. 6. Provides for the adoption of an illegiti- 
 mate child. 
 
 Sect. 7. "Whenever any person other than a 
 married woman, of full age and sound mind, shall 
 wish to adopt any other person, of full age and 
 sound mind, except a married woman, as his child 
 and heir at law " * * * * he shall make a certain 
 instrument, &c., " declaring, that he adopts such 
 person as his child and heir at law, and renders 
 him capable of inheriting as such child" * * * * 
 " and, in such case, the person so adopted shall 
 thereafter be known by the new name so desig- 
 nated, and shall be considered as a child and heir 
 at law of the person by whom he shall have been 
 so adopted ; and the same rights, duties and obli- 
 gations shall exist between the parties as if the 
 person so adopted had been the legitimate child of 
 the person adopting him." 
 
 Sect. 8. Provides for the adoption of a minor. 
 
 Sect. 9. Provides that a husband and wife may 
 mutually adopt a child as theirs. 
 
38 RHODE ISLAND. 
 
 RHODE ISLAND. 
 
 GES"ERAL STATUTES, 1872. 
 Chap. 150. 
 
 Sect. 1. Any inhabitant may adopt, but both 
 husband and wife must join, &c., &c. 
 
 Sect. 7. " A child so adopted shall be deemed, 
 for the purposes of inheritance by such child, and 
 all other legal consequences and incidents of the 
 natural relation of parents and children, the child 
 of the parents by adoption, the same as if he had 
 been born to them in lawful wedlock ; except that 
 he shall not be capable of taking property express- 
 ly limited to the heirs of the body or bodies of the 
 parents by adoption, nor property from the lineal 
 or collateral kindred of such parents, by right of 
 representation." 
 
 Sect. 8. " The parents of such child shall be 
 deprived by the decree of all legal rights as re- 
 spects, the child ; and the child shall be freed 
 from all obligations of maintenance and obedience 
 as respects his parents." 
 
CONNECTICUT. 39 
 
 CONISIECTICUT. 
 
 [It has seemed desirable to print tlie whole statute as given 
 in the Revision of 1875, as the foot note thereto says, " this 
 statute impliedly restrains parent from giving child in adoption 
 in any other way. 34 Conn. 263." The case of Johnson v. 
 Terry here cited was not one involving the law of adoption, but 
 the right of a father to the custody of a child. The court held 
 as follows : "It is not in the power of a father to divest him- 
 self by contract, even with the mother, of the custody of his 
 children. This was distinctly recognized as law in Torrington 
 V.Norwich, 21 Conn. R. 543, and is also recognized in our 
 legislation. (Gen. Stat., p. 309, sect. 53*) which enables a 
 parent under certain circumstances to transfer the right and 
 impliedly restrain him under all others."] 
 
 GEISTEEAL STATUTES, REVISIOIf OE 1875. 
 
 Title xiv, Chap. 4. 
 
 Sect. 1. The guardian of any child under the 
 age of fourteen years, with the consent of the 
 selectmen of the town where such child resides, 
 or the parents of any such child, or the selectmen 
 of any town having in charge any foundling child 
 more than one year of age, or the parent or guar- 
 dian of any minor child more than fourteen years 
 of age, with his written assent, or the superinten- 
 
 *We annex part of the statute as it stood in the Revision of 
 1866, Title 13, Chap. 4, sect. 54. * * * * ■< And such child, 
 by such adoption, shall thereupon, to all intents and purposes, 
 become the legal child of the person by whom it shull be so 
 adopted; and the person so adopting such child, shall to all 
 
40 CONNECTICUT. 
 
 dent of the Soldiers' Orphan Home, with the con- 
 sent of the executive committee of such Home and 
 the written consent of the parent, if any, of any 
 minor inmate of such Home, and of such minor if 
 more than fourteen years of age, may by written 
 agreement give in adoption such child or minor to 
 any person ; who may exhibit such agreement to 
 the Court of Probate in the district where such 
 child resides, or such Home is, for approval, and 
 such court shall thereupon issue an order of notice 
 to all persons interested, to appear and show cause 
 why such agreement should not be approved, 
 which notice shall be advertised for two weeks 
 successively, in some newspaper published in the 
 county where such child resides, or such Home is, 
 and posted on the sign post in the town nearest 
 to the place of residence of such child, at least six 
 days before the day assigned by such court for the 
 hearing.* 
 
 Sect. 2. If, on the hearing, the court shall find 
 it will be for the welfare of such child, and for the 
 
 intents and purposes, become the legal parent of the same, with 
 all the rights and duties subsisting between them, belonging 
 and incident, to a legitimate parent and child by blood relation- 
 ship, except as may have been otherwise stipulated in the writ- 
 ten agreement aforesaid : but such child shall only inherit 
 estate from the person of the adopting parent." 
 
 * " This statute impliedly restrains parent from giving child 
 in adoption in any other way. 34 Conn., 263." 
 
LAW^ OF ADOPTION. 41 
 
 public interest, that said agreement, or any other 
 agreement which may be substituted therefor, 
 •be carried into effect, it shall note its approval 
 upon such agreement, and its approval and 
 said agreement shall be recorded in the court, 
 and such child shall thereupon become the 
 legal child of the person by whom it shall be 
 so adopted, and he shall become its legal parent, 
 with all the rights and duties between them of a 
 legitimate parent and child, except as may have 
 been otherwise stipulated in such agreement, but 
 such child shall not, by virtue of such adoption, 
 inherit estate except from the adopting parent; 
 and he shall not inherit estate from his natural 
 parent : and in case of the death of such child, in- 
 testate, the adopting parent shall be entitled to "his 
 estate, in the same manner as a natural parent. 
 
 Sect. 3. The Court of Probate, may for good 
 cause, annul such agreement and vacate such de- 
 cree made in pursuance of the two preceding sec- 
 tions, in which case all parties shall be remitted 
 to their former state ; but its decision shall not af- 
 fect any rights which have been acquired by any 
 person by virtue of such adoption." 
 
42 OHIO. 
 
 OHIO. 
 
 REVISED STATUTES, 1860. 
 (Swan & Critchfleld.) 
 
 Chap. 36. T[ 24. (Act of 1854.) 
 
 Sect. 1. Any person may appoint another "to 
 stand towards him (or her) in relation of an heir 
 at law in the event of his death," * * * " and thence- 
 forward such person so designated, shall be taken 
 and held, in all places, to stand in the same relation, 
 for all purposes, to said declarant, as he (or she) 
 could if a child born in lawful wedlock ; and the 
 rules of inheritance shall be the same between him 
 or her, and the relations by blood of the declarant 
 as if so born." 
 
 ^ 25. An act to authorize the adoption of 
 children, -passed in 1859. 
 
 Any one may adopt a minor child, husband and 
 wife joining. 
 
 Sect. 4. "That by such order the natural pa- 
 rents shall be divested of all legal rights and obli- 
 gations in respect to such child, and the child shall 
 be free from all legal obligations of obedience and 
 maintenance in respect to them, and shall be, to 
 
LAW OF ADOPTION. 43 
 
 all intents and purposes, the child and legal heir 
 of his or her adopter or adopters begotten in law- 
 ful wedlock. Provided, that on the decease of pa- 
 ents who have adopted a child or children under 
 this act, and the subsequent decease of such child 
 or children without issue, the property of such 
 adopting parents shall desciend to their next of 
 kin, and not to the next of kin of such adopted 
 child or children." * 
 
 [* This act of 1859, was amended by an act passed March 1, 
 1870, but the change refers solely to section one, and affects 
 only the mode of consent by parents, guardians, etc.] 
 
44 INDIANA. 
 
 INDIANA. 
 
 STATUTES, 1862. SUPPLEMENT, 1870. 
 (Vol. II. p. 341.) Chap, iv, Act of 1855. 
 
 Sect. 1. Any person tnay adopt, &c., &c. 
 
 Sect. 3. " Such court, when satisfied that it will 
 be for the interest of such child, shall make an 
 order that such child be adopted, and from and 
 after the adoption of such child, it shall take the 
 name in which it is adopted, and be entitled to 
 and receive all the rights and interest in the estate 
 of such adopted father or mother, by descent or 
 otherwise, that such child would do if the natural 
 heir of such adopted father or mother." 
 
 Cases Decided. 
 
 The following cases which have been decided in 
 Indiana, throw much light upon the effect of the 
 statute. 
 
 In Baenes et al. v. Allen etals. (25 Ind. Kep. pp. 
 222-6), Nov. term, 1865, the case was as follows : 
 Hiram Allen died testate leaving a widow (who 
 married Barnes and they were the plaintiffs), and 
 also two adopted children William and Kate (chil- 
 
LAW OF ADOPTION. 45 
 
 dren of William and Margret Sayre) . The widow 
 elected to take under the statute and not under the 
 will, claiming one-third of his real estate in fee sim- 
 ple. By the statute of descents a widow remarry- 
 ing could not alienate such real estate, but at her 
 death " such real estate shall go to her children by 
 the marriage in virtue of which such real estate 
 came to her, if any there be. 
 
 Also if she was the second wife of a husband 
 who had children by a previous wife, "the land 
 which at his death descends to such wife, shall at 
 her death, descend to his children." 
 
 That is, if the husband who acquired the land 
 had children by either marriage, the widow took 
 only a life interest. 
 
 This brought up the question whether the adop- 
 tion of the children would place this case under 
 the statute, and so limit the widow's estate. 
 
 Held, that " the adopted children of the decedent 
 were not the children of the widow," "nor were 
 they children by a previous wife," and consequently 
 the case was not within the statute. But it was 
 also held "they were the heirs of the adopting 
 father, in the degree of children, and were entitled ' 
 to inherit from him all the estate of which, under 
 the law, he had a right to deprive his wife." 
 
 One other question arose in the case. It was 
 alleged that in the proceeding for the adoption 
 the petitioner averred that he believed the father 
 
46 INDIANA. 
 
 of the children was dead, and the adoption was 
 decreed. But that in reality the father was alive 
 and his residence known, and that he did not 
 consent to the adoption. 
 
 We find no further mention of this " point and 
 presume the evidence failed ; otherwise the ques- 
 tion of the validity of the adoption when there 
 was a defect in the forms, would have arisen, as 
 it did in Massachusetts in Sewall v. Roberts 
 (115 Mass., 275), before cited. 
 
 In Baenhizel et ux. v. Ferrell (47 Ind., 336), 
 Nov. term 1874, the case was thus : Jacob Reuber 
 had a son Theodore S. Reuber, and a daughter 
 Henrietta, who married Barnhizel. Theodore, the 
 son, died leaving a widow (afterwards remarried 
 to Ferrell) and a son Theodore, jr. The grand- 
 father, Jacob, adopted his grandson Theodore, jr., 
 by due process of law, and died intestate. Parti- 
 tion of the property was made between the adopted 
 son Theodore jr. and Henrietta (Barnhizel). Then 
 Theodore jr. died intestate, unmarried, without 
 issue. Henrietta Barnhizel claims as his sister ; 
 his real mother, Mrs. Ferrell, claims as his mother. 
 
 The Supreme Court held, after pointing out the 
 difference between the statute in Indiana and those 
 of Pennsylvania and Massachusetts,* that its law 
 
 *The court sajs : " In this state the husband may adopt a 
 child without his wife joining in the petition. In such case, 
 
LAW OF ADOPTION. 47 
 
 " contains no provision on the subject of the law- 
 ful and adopted children, as between themselves. 
 Under it their relation is not changed by the Act 
 of adoption. No right is given to them to inherit 
 from or through each other. They are not only 
 not brothers and sisters, but they have no rights 
 as such. Our conclusion is that Mrs. Barnhizel 
 did not inherit from the boy Theodore jr. as his 
 sister." 
 
 But in regard to the alleged renunciation by the 
 mother the court held, " there is nothing in the 
 statute, or in the nature of the consent, implying 
 a consent to surrender her maternal rights. She 
 did not thereby cease to be his mother, or give up 
 or surrender any right of inheritance as such. It 
 follows, that the land in controversy descended to 
 the appellee (his mother, Mrs. Ferrell), as the 
 sole heir of the decedent : (Theodore jr.)." 
 
 A.lso it says : " in this State the husband may 
 adopt a child, without his wife joining in the peti- 
 tion. In such case, the child might inherit from 
 the adopted father, but not from his wife. He 
 would have an adopted father, but not an adopted 
 mother. He would have no right as her child." 
 
 the child might inherit from the adopted father, but not from 
 his wife. He would have an adopted father, but not an adopted 
 mother. He would have no right as her child. 
 
 " The Massachusetts statute contemplates the adoption by both 
 husband and wife. It speaks of ' the parents by adoption,' 
 whilst ours refers to ' such adopted father or mother.' " 
 
48 DTDIANA. 
 
 Also it says " by the Act of adoption, the child 
 is entitled to inherit from his adopted parent as 
 his adopted heir, in the degree of a child. Barnes 
 V. Allen, 25 Ind., 222, 226. TheAct does not 
 provide that he shall be the child of the adopting 
 parent, but he shall take the name and be entitled 
 to take his property by descent or otherwise, the 
 same as he would if he was his child or natural 
 heir, and the adopting parent shall occupy the 
 position toward the child, of a father or mother, 
 and be liable in every way as such." 
 
ILLINOIS. 49 
 
 ILIjTSOIB. 
 
 STATUTES, 1873-4. 
 
 [As the following Act is much more comprehensive than the 
 former law in that State,* and as it represents perhaps the most 
 recent legislation, it has seemed hest to print the whole statute.] 
 
 ADOPTION OP CHILDREN. 
 
 § 1. Petition, Leave to Adopt. 
 
 § 2. Of the Petition. 
 
 § 3. Decree of Adoption. 
 
 § 4. Child's Consent. 
 
 § 5. Effect of Adoption. 
 
 § 6. Rule of Descent. 
 
 § 7. Prior Adoptions, By 
 
 Deed. 
 § 8. The Natural Parents. 
 
 An Act to Revise thelaw in relation to the Adoption of Child- 
 ren. Approved 2'7th of February 1874. In force 1 July 1874. 
 
 Petition : Leave to Adopt.] § 1. Any resident 
 of this State may petition the Circuit or County 
 Court of the county in which he resides, for leave 
 to adopt a child not his own, and, if desired, for a 
 change of the child's name ; but the prayer of such 
 petition, by a person having a husband or wife, 
 shall not be granted unless such husband or wife 
 joins therein ; and when they so join, the adoption 
 shall be by them jointly. 
 
 * The act of 1867, (Stat. 1870, chap. 47, § 38), is as follows : 
 
 Any person may adopt. 
 
 It shall be the duty of the court * * * * jg Qja,ke an order 
 declaring said child to be the adopted child of such person, and 
 capable of inheriting his or her estate, and also what shall be 
 7 
 
50 ILLINOIS. 
 
 Of the Petition.] § 2. The petition shall state 
 the name, sex and age of the child sought to be 
 adopted, and if it is desired to change the name, the 
 new name ; the name and residence of the parents of 
 the child, if known to the petitioner, and of the 
 guardian, if any, and whether the parents, or the 
 survivor of them, or the guardian, if any, consents 
 to such adoption. 
 
 Decree op Adoption.] § 3. If the court is satis- 
 fied that the parents of the child or the survivor 
 of them, has deserted his or her family, or such 
 child, for the space of one year next preceding the 
 application, or if neither is living, the guardian, or 
 if there is no guardian, the next of kin in this 
 state capable of giving consent, has notice of the 
 presentation of the petition, and consents to such 
 adoption ; or that such child 'has no father or 
 mother living, and no next of kin living in this 
 state capable of giving consent, or is a foundling, 
 and that the facts stated in the petition are true, 
 and that the petitioner is of sufficient ability to 
 bring up the child and furnish suitable nurture 
 and education, and that it is fit and proper that 
 
 the name of such child; atid thenceforward the relation be- 
 tween such person and the adopted child shall be, as to their 
 legal rights and liabilities, the same as if the relation of parent 
 and child existed between them, except that the adopted father 
 or mother shall uever inherit from the child ; but to all other 
 persons the adopted child shall stand related as if no such act 
 of adoption had been taken. 
 
LAW OF ADOPTION. 51 
 
 such adoption should be made, a decree shall be 
 made setting forth the facts and ordering that 
 from the date of the decree the child shall, to all 
 legal intents and purposes, be the child of the pe- 
 titioner or petitioners, and may decree that the 
 name of the child be changed according to the 
 prayer of the petition. 
 
 Child's Consent.] § 4. If the child is of the age 
 of fourteen years, or upwards, the adoption shall 
 not be made without his consent. 
 
 Effect of Adoption.] § 5. A child so adopted 
 shall be deemed, for the purpose of inheritance by 
 such child, and his descendants and husband or 
 wife, and other legal consequences and incidents 
 of the natural relation of parents and children, the 
 child of the parents by adoption, the same as if he 
 had been born to >them in lawful wedlock, except 
 that he shall not be capable of taking property, ex- 
 pressly limited to the* body or bodies, of the pa- 
 rents by adoption, nor property from the lineal or 
 collateral kindred of such parents by right of 
 representation . 
 
 Rule of Descent.] § 6. The parents by adop- 
 tion and their heirs shall take by descent, from 
 any child adopted, under this or any other law of 
 this state, for the adoption of children, and the de- 
 scendants and husband or wife, of such child only 
 
 * Thus in the printed volume : undoubtedly the words " heirs 
 of the" have accidentally been dropped. 
 
52 ILLINOIS. 
 
 such property as he has taken or may hereafter 
 take from or through the adopting parents, or 
 either of therh, either by gift, bequest, devise, or 
 descent, with the accumulations, income and profits 
 thereof; and all laws of descent and rules of in- 
 heritance, shall apply to and govern the descent 
 of any such property the same as if the child were 
 the natural child of such parents ;,but the parents 
 by adoption, and their heirs, shall not inherit any 
 property which such child may take or have taken 
 by gift, bequest, devise or descent, from his kindred 
 by blood. 
 
 Prior Adoptions : By Deed.] § 7. The preced- 
 ing section shall apply to any case where a child 
 has here|;ofore been declared by any court to have 
 been adopted, or where such adoption has been de- 
 clared or assumed in any deed or last will and testa- 
 ment, giving, bequeathing or devising property to 
 such child as the adopted child of the grantor or 
 testator, and the wife or husband of such adopting 
 ' parent shall be capable of inheriting from such 
 child the same as if she or he had become the 
 adopted mother or father of such child pursuant to 
 this act. 
 
 The Natural Parents-.] § 8. The natural pa- 
 rents of a child so adopted, shall be deprived, by 
 the decree, of all legal rights, as respects the child, 
 and the child shall be freed from all obligations of 
 maintenance and obedience as respects such parents. 
 
MICHIGAN. 53 
 
 MICHIGAN. 
 
 COMPILED LAWS, 1871. 
 
 Chap. 172. (Laws of 1861.) 
 
 Sect. 1. Whenever any person shall have adopted 
 any minor child ***** j-j^g probate judge * * 
 * * shall make an order to be entered in the jour- 
 nal of the probate court, that such person or per- 
 sons do stand in the place of a parent or parents to 
 such child, and that the n ame of such child be changed 
 to such name as shall be so designated in said instru- 
 ment for that purpose ; whereupon said child shall 
 be thereafter known and called by said new name, 
 and the said person or persons so adopting such 
 child shall thereupon stand in the place of a pa- 
 rent or parents to such child-in-law, and be liable 
 to all the duties, and entitled to all the rights of 
 parents thereto; and such child shall thereupon 
 become an heir-at-law of such persons, the same as 
 if he or she were in fact the child of such person 
 or persons. 
 
54 IOWA. 
 
 IOWA. 
 
 CODE, 1873. 
 
 Title xv, Chap. 7. 
 
 Sect. 2307. Any person competent to make a will 
 is authorized in manner hereinafter set forth, to 
 adopt as his own the minor child of another, con- 
 ferring thereby upon such child all the rights, 
 privileges and responsibilities which would pertain 
 to the child if born to the person adopting in law- 
 ful wedlock. 
 
 Sect. 2310. Upon the execution, acknowledg- 
 ment, and filing for record of such instrument, the 
 rights, duties and relations between the parent 
 and child by adoption, shall, thereafter, in all re- 
 spects, including the right of inheritance, be the 
 same that exist by law between parent and child 
 by lawful birth. 
 
WISCONSIN. 55 
 
 WISCONSESr. 
 
 REVISED STATUTES, 1871. 
 
 Chap. 49. 
 
 Sect. 1. Any inhabitant may adopt a child not 
 his own by birth. 
 
 Sect. 3. Child offourteen years and upwards, &c. 
 
 Sect. 6. A child so adopted as aforesaid, shall 
 be deemed, for the purpose of inheritance and suc- 
 cession by such child, custody of the person and 
 right of obedience by such parent or parents 
 by adoption, and all other legal consequences and 
 incidents of the natural relation of parents and 
 children, the same to all intents and purposes as 
 if such child had been born in lawful wedlock of 
 such parent or parents by adoption, saving only 
 that such child shall not be deemed capable of 
 taking property expressly limited to the heirs of 
 the body or bodies of such petitioner or petitioners. 
 
 Sect. 7. The natural parent or parents of such 
 child shall be deprived by such order of adoption 
 of all legal right whatsoever, as respects such child, 
 and such child shall be freed from all legal obliga- 
 tions of maintenance and obedience, as respects 
 such natural parent or parents. 
 
56 KANSAS. 
 
 KANSAS. 
 
 GENEKAL STATUTES, 1868. 
 
 Chap. 67. 
 
 Sect. 5. In substance provides, that any parent 
 with the approval of the probate judge may re- 
 linquish to another his right to his minor child, 
 and the person or persons so receiving such child 
 or children, shall exercise the rights of a legiti- 
 mate parent. 
 
 Sect. 6. Any person may adopt any minor 
 child by decree of court, &c. 
 
 Sect. 7. Minor children adopted as aforesaid, 
 shall assume the surname of the person by whom 
 they are adopted, and shall be entitled to the 
 same rights of person and property as children or 
 heirs at law of the person thus adopting them. 
 
OKEGON. 57 
 
 OBBGON. 
 
 GENERAL LAWS, 1872. 
 
 Misc. Laws, Chap. xiii. Title iv. (Act of 1864.) 
 
 Sect. 61. Any inhabitant may petition, &c., to 
 adopt a child not his own, &c. 
 
 Sect. 67. A child so adopted shall be deemed, 
 for the purposes of inheritance of such child, and 
 all other legal consequences and incidents of the 
 natural relation of parents and children, the child 
 of the parents by adoption, the same as if he had 
 been born to them by lawful wedlock ; except that 
 he shall not be capable of taking property express- 
 ly limited to heirs of the body or bodies of the 
 parents by adoption, nor property from the lineal 
 or collateral kindred of such parents by right of 
 representation. 
 
58 CALIFORNIA. 
 
 CAIilFORNIA. 
 
 GENERAL LAWS, 1864-1871. 
 
 Law of 31 March, 1870. 
 
 ^ 8962. Any one over twenty-one years of 
 age, of a good moral character and standing in the 
 community, excepting a married woman, may 
 adopt one or more minors, but in all cases the 
 party adopting shall be fifteen years older than 
 the minor. 
 
 ^ 8967. A minor, when adopted, shall be en- 
 titled to the name of the party adopting, and the 
 two thenceforth shall bear towards each other the 
 legal relation of parent and child, and the minor 
 shall enjoy all the legal rights and subject to all 
 the duties appertaining to that relation ; except, 
 however, that if the Adopted child leaves descend- 
 ants, ascendants, brothers or sisters, the party 
 adopting, nor his relatives, shall not inherit the es- 
 tate of the adopted child, nor any part thereof, 
 nor shall it be lawful for the adopted child, until 
 he or she is over twenty-one years of age, to make 
 any testamentary disposition in favor of said party 
 adopting or his relatives. 
 
PENNSYLVANIA. 59 
 
 PBNN8TLVANIA. 
 Brighton's Purdon's Digest, 1878, pp. 61-2. 
 
 Act of 4 Mat, 1855, § 7. 
 
 Sect. 1. Any person may adopt, and the county 
 court may decree, " that such child shall assume 
 the name of the adopting parent, and have all the 
 rights of a child and heir of such adopting parent, 
 and be. subject to the duties of such child,' of which 
 the record of the court shall be sufficient evidence : 
 Provided, That if such adopting parent shall have 
 other children, the adopted shall share the inherit- 
 ance only as one of them, in case of intestacy, and 
 he, she, or they shall respectively inherit from, and 
 through each other, as if all had been the lawful 
 children of the same parent." 
 
 Cases Decided. 
 
 Commonwealth v. Nancrede (32 Penn., 389). 
 The question here raised was whether an adopted 
 child was liable to the collateral inheritance tax. 
 Held, " it is property devised or descending to chil- 
 dren and lineal descendants that is exempt from 
 the tax. If the heirs or devisees are so in fact, 
 they are exempt ; all others are subject to the tax. 
 
(50 LAW OP ADOPTION. 
 
 Giving an adopted son a right to inherit, does not 
 make him a son in fact. And he is so regarded in 
 law, only to give the right to inherit, and not to 
 change the collateral inheritance tax law. As 
 against that law, he has no higher merit than col- 
 lateral blood relations of the deceased, and is not at 
 all to be regarded as a son in fact. 
 
 Shafee v. Enetj (54 Penn., 304). In this case 
 T. C. had a life estate with remainder to her chil- 
 dren and the heirs of her children for ever. She 
 left no children, issue of her body, but she adopted 
 children under the Act of May 4, 1855. The ques- 
 tion was, whether they took as devisees under the 
 will of J. E., the first testator. Held, "adopted 
 children are not children of the person by whom 
 they have been adopted and the Act of Assembly 
 does riot attempt the impossibility of making them 
 such." "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." 
 
 The Court also pointed out that the will took 
 effect in 1851 : that it gave a life estate in the 
 rent to T. C, with a contingent remainder to her 
 children and the residue of the estate to the chil- 
 of the testator, naming them, in fee. These chil- 
 dren had a vested interest in the rent when the 
 Act of 1855 was passed, and the legislature could 
 not take it away. 
 
TENNESSEE. 61 
 
 TENNESSEE. 
 
 STATUTES, 1872. 
 
 (Law of 1851-2.) 
 
 Sect. 3643. Any person may adopt. 
 
 Sect. 3645. The effect of such adoption, unless 
 expressly restrained by the decree, is to confer upon 
 the person adopted, all the privileges of a legiti- 
 mate child to the applicant, with capacity to 
 inherit and succeed to all the real and personal 
 estate of such applicant as heir and next of kin ; 
 but it gives to the person seeking the adoption no 
 mutual rights of inheritance and succession, nor 
 any interest whatever in the estate of the person 
 adopted. 
 
62 MISSOURI. 
 
 MISSOTJEI. 
 
 STATUTES, 1870. 
 
 Chap. 28. Act of 1857. 
 
 Sect. 1. If any person in this state shall desire 
 to adopt any child or children, as his or her heir 
 or devisee, it shall be lawful for such person to do 
 the same by deed, &c., &c. 
 
 Sect. 3. From the time of'filing the deed with 
 the recorder, the child or children adopted shall have 
 the same right against the person or persons execut- 
 ing the same, for support and maintenance, and for 
 proper and humane treatment, as a child has by law 
 against lawful parents; and such adopted child 
 shall have in all respects, and enjoy all such rights 
 and privileges as against the persons executing the 
 deed of adoption ^ This provision shall not ex- 
 tend to other parties, but is wholly confined to 
 parties executing the deed of adoption. 
 
NORTH CAROLINA. 63 
 
 NOKTH CAEOLIISrA. 
 
 BATTLE'S REVISAL, 1873. 
 
 Chap. ] . 
 
 Any person may adopt. 
 
 Sect. 3. Such order, when made, shall have the 
 effect forthwith to establish the relations of parent 
 and child between the petitioner and the child or 
 children during the minority or for the life of such 
 child, according to the prayer of the petition, with 
 all the duties, powers and rights belonging to the 
 actual relationship of parent and child, and in case 
 the adoption be for the life of the child, and the 
 petitioner die intestate, such order shall have the 
 further effect to enable such child to inherit the 
 real estate and entitle it to the personal estate of 
 the petitioner in the same manner and to the 
 same extent such child would have been entitled 
 to do, if such child had been the actual child of 
 the person adopting it : Provided, such child shall 
 not so inherit, and be so entitled to personal estate 
 if the petitioner specially set forth in his petition 
 such to be his desire and intentions. 
 
64 GEORGIA. 
 
 GEORGIA. , 
 
 CODE, 1873. 
 
 Sect. 1788. "Any person desirous of adopting a 
 child, so as to render it capable of inheriting his 
 estate" * * * * may do so, and the Superior Court 
 shall " pass an order declaring said child to be the 
 adopted child of such person, and capable of inher- 
 iting his estate, and also what shall be the name 
 of such child ; and thenceforward the relation be- 
 tween such person and the adopted child shall be, 
 as to their legal rights and liabilities, the same as 
 if the relation of parent and child existed between 
 them, except that the adopted father shall never 
 inherit from the child ; but to all other persons 
 the adopted child shall stand related as if no such 
 act of adoption had been taken." 
 
 Sects. 1789, 1790. Provide that blood relations 
 of the child if there be no father or mother may 
 object to the adoption. Also that adult persons 
 may be adopted. 
 
LOUISIANA. 65 
 
 liOUnSIAKA. 
 
 REVISED CIVIL CODE, 1870. 
 
 Chap. 4. Of Adoption. 
 
 Art. 214. Any person may adopt another as 
 his child except those illegitimate children whom 
 the law prohibits him from acknowledging ;* but 
 such adoption shall not interfere with the rights 
 of forced heirs .f 
 
 The person adopting must be at least forty years 
 old, and must be at least fifteen years older than 
 the person adopted. 
 
 The person adopted shall have all the rights of 
 a legitimate child in the estate of the person adopt- 
 ing him except as above stated. 
 
 Married persons must concur in adopting a child. 
 One of them cannot adopt without the consent of 
 the other. 
 
 *By art. 198 it seems that this exception means, " those who 
 are born from an incestuous or adulterous connection." By art. 
 'A24: it appears that " illegitimate children though duly acknow- 
 ledged, cannot claim the rights of legitimate children. The rights 
 of natural children are regulated under the title, 0/ Successions." 
 They enjoy considerable rights to property by this last clause. 
 
 fA forced heir is one who, per force of law, succeeds to the 
 whole estate of the deceased, with such exceptions only, as are 
 especially provided for and regulated by law ; whose rights do 
 9 
 
66 TEXAS. 
 
 TEXAS. 
 
 PASCHAL'S DIGEST, 1866. 
 
 Art. 30. (Law of 16 Jan., 1850, taking effect 23 March, 1850.) 
 
 Sect. 1. Any person may adopt another as his 
 legal heir by filing a statement with the clerk of 
 the county court. 
 
 Sect. 2. That such statement in writing, signed 
 and authenticated, or acknowledged and recorded 
 as aforesaid, shall entitle the party so adopted to 
 all the rights and privileges, both in law and 
 equity, of a legal heir of the party so adoptinghim 
 or her : Provided, however, that if the party adopt- 
 ing such person have, at the time of such adoption, 
 or shall thereafter have, a child or children, be- 
 gotten in lawful wedlock, such adopted child or 
 children shall in no case inherit more than the one- 
 fourth of the estate of the party adopting him or 
 her, which can be disposed of by will. 
 
 not depend upon the will, but upon the law independent of, 
 and adverse to that will. Paschal's Digest of Texas Laws, p. 
 644, Note 897. 
 
ADOPTION IN EUROPE. 67 
 
 EUROPE. 
 
 It is of course well known that the practice of 
 adoption was sanctioned by Roman law. Many of 
 the provisions of that law are inapplicable to our 
 country owing to the different relations now exist- 
 ing between parent and child. It may be noted, 
 however, that no one could adopt one who was 
 older than himself, " for adoption imitates nature, 
 and it seems unnatural that a son should be older 
 than his father." It was therefore required that 
 the adopter should be older than the person 
 adopted by full puberty, that is, eighteen years.^ 
 
 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 adopter father in lawful marriage.* An adopted 
 child added to his own name that of his adopter, 
 modifying it by the termination ianus* 
 
 " The practice of adoption which is better suited 
 to some states of society than to others, still pre- 
 vails among Eastern nations. It has never been 
 recognized as a legal institution in England or 
 Scotland."* 
 
 * Studies in Roman Law, by Lord Mackenzie. Edinburgh, 
 1870. 
 
68 LAW OF ADOPTION. 
 
 CODE NAPOLEON. 
 
 By the Code Napoleon, Book I, Title VIII, adop- 
 tion was, to a certain limited extent, sanctioned. 
 The child when adopted, was in mostrespects, placed 
 in the position of a child born in lawful wedlock. 
 The importance attached in France to the family 
 relation led to rigid regulations respecting this 
 privilege of creating heirs ; at the "Same time a 
 careful protection was afforded to the rights of the 
 minor child whose future was thus altered. 
 
 To prevent undue haste a probationary period 
 of at least six years was required before an act of 
 adoption could be carried into effect. On the other 
 hand a relation almost as close as that of parent 
 and child, namely that of guardian and ward, was 
 permitted to be created. Undoubtedly the latter 
 was intended to result in the former usually ; but 
 yet the two states were kept distinct. Only, if 
 the guardian declined to proceed to take upon him- 
 self the more onerous relationship of parent by 
 adoption, he was obliged to make a suitable pro- 
 vision for the future of his ward. 
 
 We will consider therefore first the preliminary 
 position of friendly guardian and ward. 
 
EUROPE. 69 
 
 Of Friendly Guardianship. 
 
 As will be seen, with the exception of adopting 
 one who has saved the adopter's life, the first step 
 is generally the establishment of the relation of 
 '■' friendly guardian " on the part of the adopter. 
 
 The person who seeks to be the guardian must 
 be aged above fifty years and have no children or 
 legitimate descendants; his conjunct must consent 
 also to the act. The ward must be at least fifteen 
 years old, and a minor. The consent of his parents 
 or parent, or relatives, or any official standing in 
 that position, is requisite. The guardian has cus- 
 tody of any property of the ward, but cannot 
 throw the expense of educating the child on that 
 fund. On the contrary, he is obliged to support 
 and bring up his ward, and put him in a situation 
 to gain a living. 
 
 When the ward attains his majority the guar- 
 dian may adopt him in the mode herein-after pre- 
 scribed; and if the guardianship has lasted five 
 years, the guardian may, if childless, by will made 
 in prospect of his death before the ward attains 
 his majority, adopt his ward without requiring the 
 assent of his conj unct. 
 
 If no adoption takes place within three months 
 after the majority of the ward, and the ward is 
 not in a position to gain a living, the guardian 
 may be sentenced to afford him support to procure 
 
70 LAW OF ADOPTION. 
 
 him a trade, but without prejudice to stipulations 
 which may have been made in prospect of this 
 case. If the guardian has died without adopt- 
 ing the ward, his estate is bound to make a simi- 
 lar, suitable provision for the child. 
 
 Adoption. 
 
 If the process of formal adoption be decided upon, 
 certain simple forms are observed, including exa- 
 mination by the courts of law. The regulations 
 in regard to the subject of adoption are as follows : 
 
 1. No one can adopt unless above the age of 
 fifty years and without living children or legiti- 
 mate descendants, and he must be at least fifteen 
 years older than the person adopted. 
 
 2. He* can only adopt a person for whom, dur- 
 ing minority and for a period of at least six years 
 he shall have supplied assistance and employed 
 uninterrupted care ;f or else a person who has 
 saved his life either in a fight, or by rescuing him 
 from fire or water. In the case of such a rescuer, 
 the first rule was relaxed in two respects so that 
 the adopter was required only to have attained 
 majority, and to be older than the person adopted. 
 
 * The extensive powers as to the disposal of property retained 
 by married women in France, renders the right to adopt one to 
 be exercised by both sexes. 
 
 "j" This is equivalent to the process of friendly guardianship 
 of course. 
 
EUKOPE. 71 
 
 3. In all cases (except that of guardian before 
 noticed) no married person can adopt without 
 the consent of the other conjunct. 
 
 4. Adoption shall not in any case take place 
 before the majority of the adopted party. No one 
 can be adopted by more than one person except 
 by husband and wife. 
 
 The adopted, if under twenty-five years of age 
 must produce the consent of his living parents or 
 parent. He remains bound to supply his natural 
 parents with sustenance in cases determined by 
 law ; and the same liability is mutual to the adopter 
 and adopted. 
 
 The adopted takes the name of the adopter in 
 addition to his own. 
 
 The adopted continues in his own family and 
 retains all his rights. 
 
 5. As to marriage, neither the adopter nor the 
 adopted can marry the conjunct or descendants of 
 the other. The adopted cannot marry the actual 
 or adopted children of his adopter. 
 
 The adopted enjoys the same rights with regard 
 to succession to the property of his adopter that a 
 child born in wedlock to him does. But he ac- 
 quires no right of succession to the property of 
 relations of the adopter. 
 
 7. In case the adopted child dies without law- 
 ful descendants, property actually existing derived 
 from the adopter shall return to the adopter and 
 
72 LAW OP ADOPTION. 
 
 his descendants, on condition of contributing to 
 debts. 
 
 The surplus of other property of the adopted 
 shall belong to his relations, among whom are to 
 be ranked no heirs of the adopter except his de- 
 scendants. 
 
 Furthermore, if in the life of the adopter and 
 after the death of the adopted, the descendants of 
 the latter die without issue, the adopted may suc- 
 ceed to donations made by him ; but this is a per- 
 sonal right not transmissable to his heirs, even to 
 his direct descendants. 
 
CONSIDERATIONS 
 
 ON 
 
 THE SCOPE AND PROVISIONS 
 
 ov 
 
 THE LAW OF ADOPTION. 
 
 A review of the preceding pages will probably 
 convince the reader that the various statutes on 
 this important subject, as passed in the different 
 states, have been enacted with very little care or 
 knowledge of their effect. Although this treatise 
 does not pretend to be more than a collection of 
 facts bearing on the subject, it is almost impossible 
 to refrain from discussing briefly a few of the main 
 questions which suggest themselves. These ques- 
 tions naturally fall under several heads and will 
 be considered in order. 
 
 DURATION OF THE RELATION. 
 
 § 1. In this country, in most of the states, when the relation- 
 ship of an adopted child has been established it is irrevocable. 
 In' Connecticut it would seem that the agreement to adopt a 
 child may contain stipulations limiting the extent of rights and 
 duties : in North Carolina the relation of parent and child is to 
 be established " during the minority or for the life of such child 
 according to the prayer of the petition." 
 
 By the Code Napoleon the state of '' friendly guardianship " 
 is created, which lasts during the minority of the child, and 
 10 
 
74 LAW OF ADOPTION. 
 
 creates the duty on the part of the adopter to make reasonable 
 provision for the future welfare of the child. 
 
 Considering the fact, that the subjects of adoption are so 
 * largely taken from the waifs of society, foundlings or children 
 whose parents are depraved and worthless j considering also the 
 growing belief that many traits of mind are hereditary and al- 
 most irradicahle ; it may be questioned whether the great laxity 
 of the American rule is for the public benefit. Society is main- 
 ly interested in preventing the injury which might be done to 
 a child by being educated to tastes and desires only to be grati- 
 fied by the possession of wealth, if such child be deprived of its 
 expected support by the death of the adopting parent, intestate. 
 Legislation on this whole subject is chiefly directed to the 
 corrections of previous laws in regard to inheritance, in case 
 the adopting parent makes no provision by will for such child, 
 or in case his will proves inoperative. 
 
 It would seem to be reasonable, therefore, to recognize and 
 provide for this contingency, by allowing some form of tempo- 
 rary adoption to extend only to the period of the minority of the 
 child, with a stipulation for a reasonable provision for it on at- 
 taining its majority, if the adoption be not then ratified. 
 
 WHO MAY BE ADOPTED. 
 
 § 2. As to age.] Our laws are generally silent upon the 
 question as to the range given to the power to adopt. The 
 phraseology in the statutes of most of the states is, that a child 
 may be adopted ; and presumably this would refer to a minor 
 only. Yet in Massachusetts by the act of 1869 {ante, p. 14), 
 distinct sanction is given to the adoption of a " child above the 
 age of twenty-one years," and the same provision is confirmed 
 by the law of 1871, now in force. 
 
SCOPE AND PKOVISIONS. 75 
 
 In Vermont tte child maybe a minor, or " any other person, 
 of full age and sound mind, except a married woman." 
 
 In Ohio by the act of 1854, apparently, a person of full age 
 may be appointed " an heir at law," by any. one. 
 
 In Illinois, as the statute follows closely the law of Massa- 
 chusetts, section four may well be held to relate to persons of 
 full age. 
 
 In California " the party adopting shall be fifteen years older 
 than the minor.'' The law evidently contemplates the adoption 
 of minors only. 
 
 § 3. As to illegitimate children.] In several of the states 
 the law allows a person to adopt any child not his own ; thereby 
 preventing this method of legitimating bastards. Such* was the 
 law in Massachusetts at first, the mode of legitimating as pre- 
 scribed by Gen. Stat., chap. 91, § 4, being the intermarriage of 
 the parents and an acknowledgment of the child by the father. 
 But in the act of 1871, the words employed are " leave to adopt 
 a child," and presumably this would extend even to an illegiti- 
 mate child of the adopter. 
 
 It is desirable of course to have this point settled, as this con- 
 struction of the statute removes one great barrier to illegal con- 
 nections. A man may be restrained from forming unrecognized 
 relations with a female whom he would never marry, by a con- 
 sideration as to the future prospects of their children. But this 
 restraint is lost, if he can, though unmarried, legally make such 
 oflFspring his legal children, while their mother remains unwed. 
 
 § 4. As to other relations or connections of the 
 
 adopted.] In none of the states, does there appear to be any 
 restriction as to the affinity between the adopter and the child. 
 Can a man adopt his relative in the ascending degree, as he ob- 
 viously can in the descending line? Can he adopt his uncle, 
 aunt or grand-parent, as well as his nephew, niece or grand- 
 
 *Thi8 statement is made doubtfully, as the courts might well refuse to consider 
 a bastard to be the child of any alleged father. 
 
76 LAW OP ADOPTION. 
 
 child ? Can he adopt his brother or sister ? Can he adopt hie 
 wife ?* 
 
 On these most important points the statutes are silent, and 
 inference will derive little aid from analogy. 
 
 In Louisiana a person is prohibited from adopting " those 
 illegitimate children whom the law prohibits him from acknow- 
 ledging." Yet it is to be doubted whether such a prohibition 
 would be enforced in Massachusetts, unless the court exercised 
 its very indefinite powers of deciding whether any particular 
 adoption ought to be made. 
 
 § 5. Married women.] In Vermont, it seems that a mar- 
 ried woman cannot be the subject of adoption. In view of the 
 confidential relation presumed to exist between parent and child, 
 this provision may be deemed reasonable. Should matrimony 
 entail an innumerable succession of mothers-in-law ? 
 
 § 6. Of SUCCeSSiTC adoptions.] The statutes generally 
 seem to be silent as to the transfer of an adopted child to a 
 second adopter. It may be inferred that as the general rule is to 
 place an adopted child in the position of one lawfully born to the 
 adopter, the new parent may dispose of this child to a second 
 adopting parent, and so indefinitely. Wherever the law pre- 
 scribes that the lawful parent, by consenting to the act of adop- 
 tion, severs all his previous natural relations with it, a second 
 adoption would be an easy method of terminating his responsi- 
 bilities. Obviously this may be greatly to the disadvantage of 
 a minor and therefore may well be the subject of legislation. 
 
 [§ 7.] Of the number of such children.] Nature may 
 
 be presumed to fix a reasonable boundary to the number of 
 children born of any couple. The law apparently places 
 
 * The Vermont law wonid exclude the wife. 
 
SCOPE AND PROVISIONS. 77 
 
 no restraint on the number to be acquired by adoption. Wealth 
 is the main requisite ; for generally, if the court be satisfied 
 that the adoption will be for the welfare of the child, it will 
 decree the adoption. 
 
 WHO MAY ADOPT. 
 
 § 8. Of single and married persons.] It will be noticed 
 that the effect of these laws about adoption, is in many states to 
 allow a single person to have as many children as he or she may 
 desire. It is unnecessary almost to add that this may largely 
 influence the terms hereafter to be employed in bequests. For- 
 merly a devise for life to an old maid, with remainder over in 
 the expected contingency of her death without children, might 
 well keep the testator's property in the channels by him intended. 
 Now the spinster of eighty may rear a thriving family, to in- 
 herit at her death. 
 
 By § 7 of the Illinois law, it would appear that the assump- 
 tion of adoption in any will giving property to such adopted 
 child, is suflScient, and renders other formalities unnecessary. 
 
 § 9. As to married persons, in case a person is married the 
 consent respectively of the husband or wife is requisite in Massa- 
 chusetts, New Hampshire, Illinois, and perhaps in some other 
 states. In California married women are debarred the right 
 to adopt. Yet in these states it is not set forth with distinctness 
 whether an adoption made by either husband or wife with the 
 consent of the spouse, renders the child so adopted the child 
 also of the consenting spouse. In Maine, a husband and wife 
 
78 LAW OF ADOPTION. 
 
 may jointly petition and the child is theirs ; a similarvlaw exists 
 in Vermont. The Massachusetts law is open to dehate certainly, 
 and yet there is hardly a state in the Union where the question 
 is of greater practical importance. The acquisition of property 
 by females is so carefully recognized by law there, that it is most 
 desirable to decide whether or not a husband can by adoption 
 create an heir to his wife's estate. It will certainly be conceded 
 by every one that a wife may easily be led to consent to her hus- 
 band's act, ■without knowing how it may aflfect her own rights. 
 The old system of examination separately of the wife, by the 
 court might be judiciously revived. 
 
 Would not an adoption suffice to make the husband tenant 
 by courtesy ? 
 
 §10. Other restrictions.] In Louisiana, the person adopt- 
 ing must be at least forty years old. In California he must be 
 over twenty-one years old ; in Iowa he must be competent to 
 make a will; the other states seem to make no restriction.* 
 Whethera minor can adopt is not settled. Yet as he can marry, 
 why may he not have children by adoption ? 
 
 FOEMS OF ADOPTION. 
 
 § 11. Little need be said under this head, except that as the 
 forms prescribed are generally simple and are matter, of record, 
 few cases of dispute can arise. In Massachusetts, in Sewall vs. 
 
 * It is noticeable how far onr rale diverges from the Code Napoleon . By that law 
 the adopter must be at least fifty years old, and without living children or legiti- 
 mate descendants, and must be at least fifteen years older than the person adopted. 
 The one exception mentioned prescribes that the adopter must have attained 
 majority (i. e.) and be older than the person adopted.- In the United States, the 
 wise rule that there should be a reasonable diversity of ages between the parent 
 and child, equivalent to that existing in nature, seems unduly relaxed . A youth 
 might adopt a centennarian. 
 
SCOPE AND PROVISIONS. 79 
 
 Roberts (ante, pp. 26-28), the court seems to lay down the rule 
 that the proceedings for adoption were perhaps voidable by the 
 infant for informality, when he could act for himself, but were 
 not to be availed of by others to his disadvantage. Such a wise 
 and generous principle will doubtless be repeated everywhere. « 
 
 § 12. The consent of the natural parents, and of the child, if 
 of an age to understand the matter, has been almost universally 
 made an indispensable requisite to any decree of adoption. The 
 successive changes in the law in Massachusetts have been mainly 
 directed to the establishment of a class of persons, who should 
 stand in the place of wise parents to children deserted by their 
 natural guardians. A sane parent is deprived of the right to 
 withhold his sanction, only in case he is in prison for a term of 
 at least three years, or has deserted the child for a year, or has 
 in writing given up the child to an incorporated charitable 
 society with the intent that it shall procure an adopted parent 
 \for the child. Finally the " Supreme Court in its discretion, 
 may allow any parent who had not personal knowledge of the 
 proceedings before the decree, to appeal at anytime within one 
 year after actual notice thereof." 
 
 To this extreme care of the rights of parents, it may be ob- 
 jected that where these rights are used maliciously, and to the 
 detriment of the future prospects of the child, greater powers 
 might safely be given to the courts. 
 
 EFFECT OF ADOPTION. 
 
 § 13. As to succession to property.] The rights con- 
 ferred upon adopted children in respect to their power of in- 
 heriting vary greatly in the different states. 
 
 In Massachusetts, the adopted child inherits as fully as a 
 legally procreated child " except that he shall not take property 
 
80 LAW OF ADOPTION. 
 
 expressly limited to the heirs of the body or bodies of the parents 
 by adoption, nor property from the lineal or collateral kindred 
 of such parents by right of representation/' 
 
 The same restriction as to entailed property is to be found in 
 the lawsof New Hampshire, Rhode Island,* Illinois,* Wisconsin. 
 and Oregon* 
 
 In Vermont, Connecticut, Ohio, Indiana, Michigan, Iowa, 
 Kansas, California, Pennsylvania, Tennessee (unless restrained 
 by the decree), North Carolina (unless the petitioner expressly 
 desires the contrary), Georgia and Texas, the relation between 
 adopted parent and child seems to be intended to give the child 
 all the rights and responsibilities of a legally procreated child of 
 the adopter, as concerns mutually inheriting, with such restric- 
 tions as will be hereafter mentioned. 
 
 In Maine, on the contrary, " such adoption shall not affect 
 any rights of inheritance, either of the child adopted, or of the 
 children or heirs of his adopters." 
 
 § 14. As to inheritance by the adopted child from his 
 
 natural kindred.] Having examined the right of the adopted 
 child to inherit from his adopted parent, the question arises as 
 to how far that child retains any right to inherit from his natural 
 kindred. In this country, with the rapid mutations of fortunes, 
 this question is not merely speculative. 
 
 In Massachusetts the right is reserved to the " child or person 
 to take property as heir or next of kin of his natural parents or 
 kindred, directly, or by right of representation." In Maine, of 
 course, the child's rights of inheritance are not affected, and as 
 he cannot take from his adopted parent, he can from his natural 
 parents or kindred. In Connecticut, unless otherwise stipu- 
 lated, " he shall not inherit estate from his natural parent." In 
 Illinois explicitly and in Ohio impliedly, the child inherits from 
 his natural kindred. In the other states the matter does not 
 
 * Rhode Island, IlIinoiB and Oregon also adopt the restriction as to taking from 
 lineal or collateral kindred hy right of representation. 
 
SCOPE AND PROVISIONS. 81 
 
 appear to have been regulated, and where there is no prohibi- 
 tion, it is to be concluded perhaps, that the child would inherit 
 from his natural relatives, as though no act of adoption had 
 taken place. 
 
 § 15. Heirs of the adopted child.] In case an adopted 
 child dies intestate and without descendants, who are to be con- 
 sidered his heirs ? He may well have persons who stand in the 
 same degree to him both on the side of his adopted and of his 
 natural kindred ; or the different sets of heirs may stand in 
 different degrees of kinship. Thus he may have inherited 
 largely from an adopted father, who has also other children, 
 legally procreated. He may have (if the phrase be allowed) 
 brothers or sisters by adoption. Yet he may have a natural 
 father still livinp;. Shall the father inherit ? Of course on the 
 solution of this question depends all the minor ones of kindred 
 on either side. 
 
 In Connecticut (saving always especial agreements) " in case 
 of the death of such child, intestate, the adopting parent shall 
 be entitled to his estate, in the same manner as a natural parent." 
 
 In Illinois {ante, pp. 51-52) the parents by adoption and their 
 heirs shall take from such child, his wife and descendants, only 
 such property as he has taken from or through such parents, 
 with the accumulations, income and profit thereon : but not any 
 property received by said child from his kindred by blood. 
 
 On the other hand in Georgia, " the adopted father shall 
 never inherit from the child, but to all other persons the adopted 
 child shall stand related as if no such act of adoption had been 
 taken." In Tennessee the adoption " gives to the person seek- 
 ing the adoption no mutual rights of inheritance and succession 
 nor any interest whatever in the estate of the person adopted." 
 In California, " if the adopted child leaves descendants, ascend- 
 ants, brothers or sisters, the party adopting, nor his relatives 
 shall not inherit the estate of the adopted child, nor any part 
 thereof, nor shall it be lawful for the adopted child, until he or 
 she is over twenty-one years of age, to make any testamentary 
 disposition in favor of said party adopting or his relatives." 
 11 
 
82 i^AW OP ADOPTION. 
 
 With such a diversity of positive enactments, it would be 
 impossible to predict the construction which will be put upon 
 the loose and ambiguous statutes of other states. Thus in the 
 law of Ohio (ante, p. 43) it is provided apparently that the 
 adopted child shall not be the channel to convey the property 
 of the adopting parents to the natural kindred of the child ; yet 
 it is silent as to their inheriting any part which had been given 
 him before their decease. 
 
 § 16. Entailed estates.] As already shown, in Massachu- 
 setts and several other states, an adopted child cannot " take 
 property expressly limited to the heirs of the body or bodies of 
 the parents by adoption." As this clause demands an examina- 
 tion of the law in regard to estates-tail, its consideration is de- 
 ferred to an appendix. 
 
 § 15. The right of representation.] The Massachu- 
 setts statute, copied by several other states, also forbids the 
 adopted child to take " property from the lineal or collateral 
 kindred of such parents by right of representation." By Gen, 
 Stat., chap. 91, § 12, it is declared, that, " inheritance or suc- 
 cession 'by right of representation,' takes place when the de- 
 scendants of a deceased heir take the same share or right in the 
 estate of another person, that their parent would have taken if 
 living." It is in virtue of this rule that grand-children of an 
 intestate, take a share when they have living uncles or aunts j 
 or that nephews and nieces succeed to a share in the estate of 
 uncles or aunts. Yet among next of kin of equal degree there 
 is no allowance made for this right. 
 
 It would seem to be an anomaly in the Massachusetts law 
 that if a man leave an adopted child, then on the decease of the 
 adopter's father, this child might take or not according to 
 whether any brother or sister of the adopter was alive, If 
 living, the adopted child would be excluded as claiming by right 
 of representation ; if dead, he might claim as a lineal descend- 
 ant in the rank of grand-children. 
 
SCOPE AND PROVISIONS. 83 
 
 So if a brother of the adopter died, intestate without issue 
 and without father. An adopted child could only claim by right 
 of representation. If all of that generation and the father and 
 mother were dead, the adopted child might claim with all the 
 other nephews and nieces. 
 
 § 16. Relatives by adoption.] In the preceding section 
 the expression " might claim," is designedly employed. Of 
 course in the instances cited, where the claim of the adopted 
 child is by right of representation, he is clearly excluded. In 
 the other cases the question remains whether the act of adoption, 
 though it gives the child legal parents on that side, gives him 
 also grand-parents, uncles, aunts, cousins and other kindred as 
 well. Would a devise by A to all his nephews when they ar- 
 rive at a certain age, include the child of a brother adopted after 
 the death of the testator ? 
 
 So also, does an adopted child become really a brother to the 
 legally procreated children of his adopter, so as to inherit 
 from them ? * 
 
 § 19. Marriage of adopted chUdren.J Tt is an interest- 
 ing question whether or not the relationship established by the 
 act of adoption is so regarded by law as to iaclude other rights 
 beyond that of inheritance. Can an adopted child marry the 
 offspring of his adopted parent ? Is he equally precluded from 
 contracting any of the marriages prohibited by law to all of the 
 offspring of such parent ? Such matters have been regulated 
 by statute and ought not to rest on inference. In most English 
 speaking nations the marriage of near relations is forbidden, and 
 a person is debarred from marrying a step-parent or step child. 
 Yet law and custom both approve of marriage between step- 
 children ; and here iu America a man may marry a deceased 
 wife's sister, though it is forbidden in England. Clearly then 
 
 * The Pennsylvania statute expressly states that sacli shall be the case there ; 
 hut the Supreme Court seemed to regard its law as very different in many respect^ 
 from that of Massachusetts. 
 
84 I^AW OF ADOPTION. 
 
 the degree of affinity created by adoption ought to be defined by 
 law. 
 
 § 20. Of sexual crimes.] In none of the states is any attempt 
 made to follow out the chain of ideas, and to settle the point 
 whether sexual crimes are created or are aggravated in law by 
 the artifical relationship of adoption. Yet as marriage is pro- 
 hibited between near blood relatives, so are sexual crimes im- 
 mensely augmented by such affinity. Such important results 
 flow from the decision of this point, that it should be also the 
 subject of definite enactments. 
 
 §21. Of reciprocity.] Little or no consideration has yet 
 been given to the eflFect of adoption in one state in regard to 
 rights in another state. By common consent a marriage in one 
 state is valid throughout the United States, with certain rea- 
 sonable exceptions ; and it might be said that reciprocity extends 
 throughout the civilized world. 
 
 Of course also a man's children born in lawful wedlock are his 
 heirs every where. But in regard to children made by act of a 
 State Legislature, no such conclusions necessarily follow. In 
 fact in most of the states, an adopted child obtains that position 
 only in virtue of a compliance with the provisions of the local 
 act, and an adoption elsewhere, even under a similar act, would 
 give him no rights in regard to real estate at least. 
 
 For example, in Massachusetts theact {ante, pp. 22—25), says 
 a petition is to be brought before the Probate Court, in some 
 county in that state, and that the court may make a decree ; and 
 a child so adopted shall have certain rights. Again the Penn- 
 sylvania statute makes certain similar provisions for that state ; 
 but neither provide for any reciprocal recognition of an adoption 
 in the other state. As already shown, the effects of the Irw in 
 these states, are widely different. In Massachusetts the act is 
 construed to give an adopted child all the rights of a lawfully 
 procreated one in most cases ; in Pennsylvania, the statute is held 
 
SCOPE AND PROVISIONS. 85 
 
 to have a very limited range, and the child is declared in terms 
 " not at all to be regarde'i as a son in fact." With such im- 
 portant differences in regard to the position of an adopted child, 
 it would be difficult to establish any rule of comity. 
 
 Yet there seems to be every reason for legislation on the sub- 
 ject, and some principle of recognizing and defining the rights of 
 adopted children should be arranged between all the states, at 
 least, which have established this relationship. 
 
 But other questions will soon arise. If a child be adopted 
 in Massachusetts and the father afterwards goes to Maine to 
 live. At his death can this child inherit? Can he be disin- 
 herited? Can an adopted child recover personal est ite in other 
 states where adoption does not exist ? 
 
 Other interesting questions will doubtless present themselves 
 to the reader, and it is to be hoped that some attempt will be 
 made by legislators to furnish a solution. Evidently as the 
 matter stands, the attempts of philanthropists to cure a small 
 evil, may have resulted in a serious injury to the rights of many 
 other persons. The more evident defects of the law certainly 
 demand a speedy remedy. 
 
APPENDIX A 
 
 ESTATES TAIL. 
 
 Inasmuch as the Massachusetts statute expressly ex- 
 empts from the effect of the law of adoption " property 
 expressly limited to the heirs of the body or bodies of 
 the parents by adoption, " it may be well to see to what 
 extent estates-tail are recognized in that state. 
 
 To go back to the period of the province as estab- 
 lished by the second charter, it seems that in 1692-3, 
 (Province Laws, chap. 14, new edition, p. 43) that an 
 act was passed for the settling and distribution of the 
 estates of intestates. In 1723 the question being raised 
 whether " estates entailed by an entail general, viz. ; 
 to the heirs of the body lawfully begotten, " were by 
 virtue of the above named act liable like other estates 
 of intestates, to be divided among all the children of 
 the tenant in tail, — the Council decided in the negative, 
 and the House of Representatives resolved " that the 
 resolving of this question will not be of any service to 
 the province. " 
 
 In 1737, the case of Philips v. Phillips was tried. 
 In this case, Henry Phillips died intestate, possessed 
 of considerable real estate as well as personal estate. 
 He left a brother, mother and sisters. The brother 
 duly administered on the personal estate, but claimed 
 all the real as sole heir-at-law. The Probate Court 
 decreed division of the real estate as well. The papers 
 in the case are printed in the Proceedings of Mass. 
 Hist, Society, iii, 68. The final appeal was to the Coun- 
 
APPENDIX. 87 
 
 cil, * and there a decree was rendered (Proc. M. H. 
 Soc. xi, 101) stating that the provincial act of William 
 and Mary was ratified by the Crown, and that several 
 other explanatory acts had been passed and confirmed- 
 His majesty was therefore recommended to dismiss the 
 appeal. 
 
 In A. D. 1763 {Quiney's Rep., 71,) in Baker v. 
 Mattocks, it was decided by a majority of judges, that 
 " the Prov. Stat of 4 W. & M., by which lands descend 
 to all the children, and which empowers the ancestor 
 to convey or devise them at his pleasure, does not ex- 
 tend to estates-tail, but leaves them as at the common 
 law. " Hutchinson, C. J. said, " if it was now a thing 
 entirely upon the law, I should not have the least diffi- 
 culty of thinking fee tail, as well as fee simple, was 
 partable, but it has been so long thought otherwise 
 here, and this has been the uninterrupted contempo- 
 raneous exposition of the law, and many judgments of 
 court founded on it, that it creates a great difficulty ; 
 and I am glad that the point is determined without me, 
 for how such a custom can prevail against plain law, 
 I doubt. " 
 
 After the revolution estates-tail were clearly in force 
 as the following legislation shows. 
 
 Stat. 1791, c. 60, was entitled " an act providing a 
 more easy and simple method than now in use of bar- 
 ing estates tail in lands and making the same liable to 
 the payment of the debts of the tenant in tail. " The 
 
 * Phillips relied chiefly on the case of Winthrop v. Lechmere, decided 
 in Council in 1737, (see Ool. Bee. of Conn., vii, 571). In Connecticut 
 there was a similar statute of distribution, and Winthrop claimed all 
 the real estate left by his father, excluding his only sister, Mrs. Lech- 
 mere. The Probate Courts interfered, Winthrop appealed, and the 
 king reversed and set aside all the proceedings, declaring the act itself 
 to be null and void. Palfrey states that twenty years later, the law 
 was sanctioned by a decree of the House of Lords, under the advice of 
 the crown lawyers. 
 
88 LAW OP ADOPTION. 
 
 first section provided that the tenant in tail might, by 
 a deed witnessed and acknowledged in a certain way, 
 convey lands so held, and bar all remainders, etc. This 
 provision was continued in Rev. Stat. c. 59, §3, with 
 the change only that it might be done by a deed in 
 common form, and is repeated in Geu. Stat. c. 89, §4. 
 The case of a tenant for life with a remainder in tail, 
 was provided for by Stat. 1804, c. 59, and a joint deed 
 was made necessary. This provision has also been con- 
 tinued subsequently. Gen. Stat. c. 89, §5. * 
 
 * The third and last section of the act of 1791 was in addition to and 
 limitation of the rule of common law known as the rule in Shelley's 
 case. It reads as follows. 
 
 " Sect. 3. And he it further enacted, That whenever any person shall 
 hereafter, in and by his last will and testament devise any lauds, tene- 
 ments or hereditaments, to any person, for and during the term of such 
 person's natural life, and after his death, to his children or heirs, or 
 right heirs in fee, such devise shall be taken and construed to vest an 
 estate for life only in such devisee, and a remainder in fee simple, in 
 such children, heirs or right heirs, any law, usage or custom to the con- 
 trary notwithstanding. " 
 
 It seems, therefore, that by the rule in Shelley's case, a gift or con- 
 veyance in such form vested a fee simple in the recipient, but that from 
 1791 to 1836, our law prevented this effect in regard to lands, tenements 
 or hereditaments devised by will, and recognized and gave effect to a 
 life estate only in the first taker. In Rev. Stat. c. 59, §9, this provi- 
 sion was extended to lands given by deed also, and this enactment is 
 continued in Gen. Stat. c. 89, §13. > 
 
 In regard to personal property, given either by deed or will, the rule 
 of common law remains. 
 
 It is to be noted that these provisions relate exclusively to estates 
 tail, but do not reach to other limited estates. Gen. Stat. c. 89, §10 
 reserves all other expectant estates which are " declared not to be. de- 
 feated or barred by any alienation or other act of the owner of the pre- 
 cedent estate, nor by any destruction of such precedent estate by dis- 
 seisin, forfeiture, surrender or merger. " Equitable estates tail follow 
 the rule of legal estates tail. Gen. Stat. u. 89, §6. 
 
APPENDIX. 89 
 
 Cases of estates-tail naturally soon appear in our 
 reports. In Richardson v. ISojes, 2 Mass., 66, the 
 court held that a devise to three sons and if either 
 " should die without children, the survivor or survivors 
 to hold the interest of each or any of them dying with- 
 out children, as aforesaid," did not in this instance 
 necessarily create an estate-tail. But this was arrived 
 at by considering the probable intent of the testator, 
 and the fact that the will was drawn by an unskilful 
 person. It adds, " In England, lands conveyed to a 
 man and his heirs generally, descend to his eldest male 
 issue : if to a man and the heirs of his body, they de- 
 scend in the same manner. If lands here are conveyed 
 in the same manner, in the former case they descend 
 to all his children, and in the latter to his eldest male 
 issue. 
 
 So in Wheelwright v. Wheelwright, 2 Mass., 447. 
 
 In Williams v. Hichborn, 4 Mass., 187, it was decided 
 that the guardian of a person non compos, might, on 
 being duly licensed therefor, sell the estate-tail of his 
 ward for the payment of his debts, under the statute 
 of 1791, c. 60, and thus extinguish the estate-tail and 
 bar the remainder. 
 
 In Soule V. Soule, 5 Mass., 61, it was held that the 
 deed barring the estate-tail must not only purport to be 
 for a good or valuable consideration, but must be for it. 
 
 In Ide V. Ide, 5 Mass., 500, a devise to P. and his heirs 
 and assigns with the farther clause, that " if my son P. 
 shall die and leave no lawful heirs, what estate he 
 shall leave to be equally divided between my son J. 
 and grandson IST. to them and their heirs forever," was 
 held not to create an estate-tail in P. 
 
 In Hawley v. Northampton, 8 Mass., 3, a long opinion 
 will be found, fully recognizing the existence of estates- 
 tail and giving effect to very complicated remainders. 
 
 In Davis v. Hayden, et al., 9 Mass., 516, it was held 
 12 
 
90 LAW OF ADOPTION. 
 
 that a conveyance by indenture to the use of B. for 
 life, remainder to her husband, C, remainder " to the 
 joint heirs of the body of B. and C. by them lawfully 
 begotten," created " an estate in special fee tail in B. 
 and C, and that their eldest son was entitled after their 
 death, exclusively of their other children." Farther, 
 that " nothing passes by the conveyance of land, of 
 which the grantor is only heir apparent." 
 
 In Lithgow v. Eavenagh, 9 Mass., 161, the meaning 
 of the statute of 1791 for disentailing estates is very 
 fully considered and this case is in many respects 
 worthy of examination. 
 
 In Nightingale v. Burrell, 15 Pick., 104, Shaw, C. J., 
 delivered a long opinion, adding to the doctrine laid 
 down in Lithgow v. Kavenagh. Amongst other points 
 it was held that " a devise to one and his children, he 
 having no children at the time, is equivalent to a devise 
 to him and his issue, and creates an estate-tail." 
 
 In Corbin v. Healey, 20 Pick., 514, Shaw, C. J., de- 
 cided that a conveyance by deed to " E. and to her 
 heirs born of her body " created an estate-tail and that 
 the oldest son, alone, succeeded. He also added : 
 
 " It was suggested in the argument for the de- 
 mandants, but not much insisted on, that the common 
 law rule, limiting the descent of an estate-tail to the 
 eldest male heir, has been abrogated or controlled by 
 the Massachusetts statute of descent." 
 
 " The statute of descents, St. 1783, c. 36, § 1, is not 
 expressly limited to lands of which a party shall die 
 seized in fee simple ; but we believe that it has always 
 been so construed, as well as the earlier statutes of the 
 Province and Colony, of which that was a revision. 
 The Prov. St., 4"W"m. and Mary c. 2 (Anc. Chart. 230), 
 expressly limited the general law of descents to estates 
 in fee simple. But the statute of 1783 was modified 
 and altered by Stat. 1789, c. 2, taking away the pro- 
 
APPENDIX. 91 
 
 vision for a double share to the eldest son, and pro- i 
 
 viding for an equal distribution, and this was limited 
 to the ease of estates in fee simple. And the same 
 words are used in the statute of 1805, which was a re- 
 vision and substantial reenactment of the old laws, 
 drawn up with great care and accuracy. It provides 
 for the descent of estates, held in fee simple or for the 
 life of another. It leaves estates-tail as they stood at 
 common law. The existence and incidents of an estate 
 tail have always been recognized in this Common- 
 wealth, and provisions made for an easy way of barring 
 them, and common recoveries to bar them have been 
 in frequent use." 
 
 In the Circuit Court, May term, 1833, Story * de- 
 livered an opinion in Parkman v. Bowdoin et al., 1 
 Sumner, 360, discussing very carefully and reaffirming 
 the doctrine that a devise to one and his children, he 
 having no children at the time, created an estate-tail. 
 
 In Richardson v. Wheatland, 7 Met, 169, the devise 
 was to daughter H. during life, and to her husband 
 W. during life, and at their decease to be divided 
 among the heirs of H. At the death of the testator, 
 H. had no child, but afterwards had a son G., who 
 survived her. Held, that the remainder was conti ngent 
 until the decease of H., and vested on her death in 
 those who were then her heirs-at-law. Although this 
 case does not concern estates-tail, it is of interest as 
 construing part of St. 1791, e. 60. The following re- 
 marks of Shaw, C. J., have excited much comment. 
 -" It may perhaps be doubtful whether the present case 
 would come under the rule in Shelley's case, and be 
 governed by this statute : because it is not a devise to 
 one for life, with an immediate remainder to heirs, 
 since there is another life estate intervening. " The 
 
 * Story had already decided a case in Rhode Island, Osborne v. 
 Shrieve, 3 Mason, 391. 
 
92 LAW OF ADOPTION. 
 
 construction of the rule more generally followed would 
 hardly allow of this doubt. 
 
 In Parker v. Parker, 5 Met, 134, a devise to his five 
 sons, " and if any or either of my said sons should die 
 before they arrive at the age of twenty-one years, or 
 should die without any legal heir of their body, then 
 and in that case their share or shares shall descend 
 equally to their surviving brother or brothers, " was 
 held to create an estate-tail. The word " or " was con- 
 strued to mean " and. " 
 
 In Buxton v. Uxbridge, 10 Met., 87, it was held 
 that a devise to " sou J. and the heirs lawfully begotten 
 of his body, and their heirs and assigns " gave an estate- 
 tail to J. not a fee simple. 
 
 In Cuffee v. Milk, 10 Met., 366, held that a devise 
 to " son W. and his eldest male heir forever " gave an 
 ^ estate-tail to W. 
 
 In^Wheatland v. Dodge, 10 Met., 502, a devise was 
 
 to "son R , his children or grandchildren ; and 
 
 if my said son R. should decease without children or 
 grandchildren, the said real estate is to descend to the 
 heirs of my sou J., deceased." When the will was 
 made, R. had children but no grandchildren. Held, 
 that R. took an estate-tail under the will. In this case 
 the rule in Wild's case, 6 Co., 17, was re-affirmed, and 
 the case of Parkman v. Bowdoin was cited with ap- 
 probation. 
 
 In Terry v. Briggs, 12 Met, 17, a devise was to " son 
 D., his heirs and assigns forever, and if he shall die 
 without lawful heirs," then over. It was held that 
 " dying without lawful heirs " had the same meaning 
 as " dying without lawful issue," and created an estate- 
 tail ; which in this case had been barred by a deed of D. 
 
 In Weld V. Williams, 13 Met, 486, the mode of 
 barring estate-tail is considered. ' 
 
 The case of Perry v. Kline, 12 Gush., 118, not only 
 
APPENDIX. 93 
 
 recognizes estates-tail, but deals with some very intricate 
 questions of cross-remainders. 
 
 In Wight V. Thayer, 1 Gray, 286, Shaw, C. J., re- 
 affirmed the law of estates-tail. He stated that the 
 law was diiFerent iu Connecticut, as appeared by the 
 cases cited, viz. Hamilton v. Hempers, 3 Day, 339; 
 Allyn V. Mather, 9 Conn., 132 ; Welles v. Olcott, Kirhy, 
 118 ; Allin v. Bunce, 1 Eoot, 96 ; Borden v. Kingsbury, 
 2 Root, 39. 
 
 In Holland v. Craft, 3 Gray, 162, held, that the St. 
 of 1791, c. 60, § 2, did not make a remainder in tail 
 liable to the debts of remainderman. 
 
 In Hall V. Thayer, 5 Gray, 623, the statute of 1791 
 was again examined, and the fact was mentioned that 
 the records of the Court of Common Pleas from 1751 
 to 1776 were lost, in which common recoveries were 
 recorded. 
 
 In Hall V. Priest, 6 Gray, 18, held that " the words 
 ' dying without issue,' unless explained or qualified by 
 other expressions, have acquired a distinct and well 
 understood meaning, by a uniform series of decisions 
 both in this country and England. They are held to 
 mean an indefinite failure of issue after the death of 
 the first devisee." Also held, that " estates-tail cannot 
 be barred by will. They are expressly exempted from 
 the operation of a last will and testament. E.ev. St., c. 
 62; § 1." 
 
 In Hayward v. Howe, 12 Gray, 51, the same doctrine 
 was affirmed and the court held, " this is not a case to 
 which the statute abolishing the rule in Shelley's case, 
 Rev. St., c. 59, § 9, applies. This statute was not in- 
 tended to prohibit or restrain the creation of estates- 
 tail when the devise should be made by apt and suf- 
 ficient words, according to the well established rules 
 of law." 
 
 In Whittaker v. Whittaker, 99 Mass., 366, held, that 
 
94 LAW OF ADOPTION. 
 
 there is " no authority for the position that a deed, 
 which when made does not bar an entail, can after- 
 wards do so by estoppel." 
 
 In Allen v. Ashley School Fund, 102 Mass., 264, 
 held to be well settled in this commonwealth that a 
 devise over, in case the first devisee shall die " without 
 leaving issue," or " without leaving heirs of the body," 
 looks to an indefinite failure of issue, and creates an 
 estate-tail. 
 
 We have thus hastily gone over the principal cases 
 in the Massachusetts Reports, in order to show that the 
 exception made by the Massachusetts law of adoption, 
 in order to prevent the substitution of such adopted 
 children in entails, has an application to a number of 
 actual cases. 
 
 The question still remains whether the courts will 
 construe this prohibition to estates " strictly limited to 
 the heirs of the body or bodies," or whether it will in- 
 clude all estates of the same nature, constituted by 
 other words which have been held to be equivalent. 
 
 Lastly, and as a reason why the laws of the various 
 states should be revised promptly, it may be urged 
 that it is not easy to establish a form of bequest which 
 shall always exclude adopted children, though such be 
 the intent of the testator. Only a form prescribed by 
 statute can with certainty be held to effect this object.* 
 
 * I venture to reproduce an argument used in the Zaw Review : 
 Thus the statute says, " A child or person so adopted shall be 
 deemed, for the purpose of inheritance, and all other legal consequences 
 of the natural relation of parent and child, to be the child of the pa- 
 rent or parents by adoption, as if born to them in lawful wedlock, 
 except," &c. It is clear that a testator may devise to A. for life, and, 
 at his death, to his lawful children. Here the adopted child takes. 
 The testator may devise so as to exclude certain of the children ; but 
 can it be done by a devise to the grandchildren, excluding expressly 
 all which became such by adoption ? A certain analogy seems to 
 exist between this case and others where the identity of qualifications 
 are settled by the superior authority. Thus the United States declare 
 
APPENDIX. 95 
 
 In Maine, a method of barring estates-tail is provid- 
 ed. (See Rev. Stat. 1871, ch. 73, §4.) Yet, perhaps the 
 only case cited in the reports is that of Fisk v. Keene, 
 35 Me., 350. If such estates are created there by the 
 usual words, it is certainly surprising that no more 
 instances have been brought before the courts. It has 
 been said that an opinion prevails there that estates- 
 tail are not recognized; if so possibly devises establish- 
 ing them have been over-looked. 
 
 the privileges of citizens as equal, so that, in the words of the Supreme 
 Court, in Woodruff D. Parham, 8 Wall., 140, "an attempt to deprive 
 the citizens of other states of any privilege or immunity possessed by 
 citizens of Alabama, by a law having such operation, would render 
 the law void." 
 
 In Massachusetts, a case has been decided, Nourse v. Merriam, 8 
 Cush., 11, which comes quite near to the supposed one. One Joseph 
 Houghton undertook, by will, to give $12,000 to the town of Bolton, 
 to establish a school for the benefit of the inhabitants, excepting nine 
 persons named and their descendants, who were to be excluded from 
 attending said school for the term of one hundred years. The case 
 having arisen on the legality of this exclusion, the school having been 
 duly established, the Supreme Court decided that this part was void, 
 ■' because it is repugnant to the nature of the grant ; in violation of 
 the fundamental principles of equality upon which the rights and 
 privileges, as well as the duties and burdens, of citizens of towns are 
 regulated ; contrary to good morals and public policy." 
 
 May it not then be argued that the " public policy" of Massachusetts, 
 as shown by the statute, is that adopted children are to stand in the 
 place of real, children born in lawful wedlock ; and that where a testa- 
 tor attempts to exclude adopted grandchildren, simply for the reason 
 that they are adopted, from benefits which would have resulted to 
 them if iorn of certain parents in lawful wedlock, his attempt may be 
 pronounced void, as " contrary to good morals and public policy ?" 
 It would be presumptuous in us to attempt to answer the question de- 
 finitely ; but, on the other hand, is there not at least such a doubt 
 thrown over the subject, that a lawyer would hesitate to advise his 
 client that a devise of a remainder to lawful children, excluding all 
 adopted children, would be perfectly safe and valid ? Our suggestions 
 are confined to pointing out the dangers which may have arisen under 
 a statute couched in unnecessarily vague terms. 
 
APPEI^DIX B 
 
 The Massachusetts Act as Amended in 1875, but 
 NOT Enacted. 
 
 The subject ot the law of adoption was carefully con- 
 sidered during the session of 1875, by the Judiciary 
 Committee of the House of Representatives, and the 
 following bill was passed by that branch in the last 
 week of the session. Owing to the importance of the 
 changes and the brief time left for its consideration, 
 the Senate declined action, referring it to the next 
 General Court. 
 
 House Document No. 387, of 1875. 
 
 AN ACT 
 
 CONCERNING THE ADOPTION OP CHILDREN. 
 
 Be it enacted hy the Senate and House of Representatives, in 
 General Court assembled, and hy the authority of the same, as 
 follows : 
 
 Sect. 1. Any person of the age of twenty-one years 
 or upwards may petition the probate court, in the 
 county of his residence, for leave to adopt as his child 
 any other person, who is not twenty- one years of age, 
 except as hereinafter provided. If the petitioner be not 
 an inhabitant of this state, such petition may be made 
 to the probate court in the county where the child re- 
 sides; but the prayer of such petition shall not be 
 
APPENDIX. 97 
 
 granted if made by a person having a husband or wife, 
 unless the husband or wife join therein. 
 
 Sect. 2. No decree for such adoption shall be made, 
 except as hereinafter provided, without the written 
 consent of the child, if above the age of fourteen years ; 
 and of the surviving parent or parents of the child, or 
 of the parent having the lawful custody of the child, 
 if the parents be divorced, or are living separate ; or 
 of the mother only of the child, if illegitimate; or of 
 the guardian of the child, if any. ISTo person whose 
 consent is hereby made requisite shall be debarred 
 from being the adopting parent in said proceedings. 
 
 Sect. 3. The consent of any person, other than the 
 child, named in sections one and two, shall not be 
 necessary, if said person be adjudged hopelessly insane, 
 or be imprisoned in a state prison or a house of cor- 
 rection, in this state or elsewhere, for a term not less 
 than three years, or as punishment- for a felony, as de- 
 fined by the statutes of this state ; nor if he has wil- 
 fully deserted and neglected to provide proper care and 
 maintenance for such child for one year next preceding 
 the date of the petition ; nor if he has suffered such 
 child to be supported by any charitable institution in- 
 corporated by law, or as a pauper by any city or town, 
 or by the state, for more than one year continuously, 
 prior to the petition. 
 
 Sect. 4. Whenever the written consent of the parties 
 named in the preceding sections is not submitted to 
 the court with the petition, the court shall order notice 
 of the pendency of such petition, by personal service 
 on them of a copy of the petition and order thereon, 
 or, if they be not found within the state, by publication 
 thereof once a week, for three successive weeks, in 
 such newspaper or newspapers as the court shall order, 
 the last publication to be seven days at least before 
 the time appointed for the hearing. And, in any case, 
 13 
 
98 LAW OP ADOPTION. 
 
 the court may order such additional notice and conaent 
 as may be deemed proper. 
 
 Sect. 5. Any person not appearing at the appointed 
 time and place, and then objecting to such adoption, 
 shall be held to have consented thereto, except as pro- 
 vided in section eleven of this act ; but if no one con- 
 sents or appears, the court may, if it see fit, appoint a 
 guardian ad lilem to give or withhold his consent. 
 
 Sect. 6. If satisfied of the identity and relations of 
 the parties, and that the petitioner is of sufficient ability 
 to bring up the child, and furnish suitable nurture and 
 education, and that it is proper such adoption should 
 take effect, the court shall make a decree, by which 
 all rights, duties, responsibilities and other legal con- 
 sequences of the natural relation of parent and child 
 shall terminate between the person so adopted and his 
 natural parents and kindred, excepting as regards the 
 marriage of said child with any of said parents or 
 kindred, and as respects rape, cohabitation or any 
 sexual crime committed by either or both, and the 
 same shall thenceforward exist between him and the 
 petitioner and his kindred. 
 
 Sect. 7. [As to the inheritance of property, any 
 person adopted in accordance with the provisions of 
 this act, shall, in case his adopting parent die intestate, 
 take the same share which he would have taken if born 
 to him in lawful wedlock, of any property which the 
 parent could have devised by will, or which the parent 
 would have inherited in fee simple, had he lived. He 
 shall inherit in lik& manner, and to the same extent, 
 from his natural parents.]* In case the person so 
 
 * The following clauses were substituted for the parts enclosed in 
 paragraphs, during the third reading of the bill. " A child or person 
 so adopted shall be deemed, for the purposes of inheritance and all 
 other legal consequences of the natural relation of parent and child, to 
 be the child of the parent or parents by adoption, as if born to them in 
 lawful wedlock, except as herein provided ; and all the rights, obliga- 
 
APPENDIX 99 
 
 adopted dies intestate, his property, acquired by him- 
 self, or by gift or inheritance from his adopted parent, 
 or the kindred of such parent, shall be divided accord- 
 ing to the provisions of chapters ninety-one and ninety- 
 four of the General Statutes, or of any statutes 
 amendatory thereof, among the relatives he would 
 have had if born to his adopted parent in lawful wed- 
 lock ; and any property received, by gift or inheritance 
 from his natural parents or kindred, shall be divided 
 in the same manner as if no act of adoption had taken 
 place : ^uch division to be ascertained in such manner 
 as the court may decree. 
 
 Sect. 8. After this act takes effect, no child by 
 adoption shall stand in the place of a child born in 
 lawful wedlock to the adopting parents, in any grant, 
 entail, devise or bequest, wherein the original grantor 
 or testator shall have evidently intended to limit the 
 benefits thereof to persons of his own blood, or their 
 husbands or wives. But in all such instruments, exe- 
 cuted after the said date, the absence of such a limita- 
 tion shall entitle an adopted child to all the rights 
 thereunder, which would accrue to a child born to the 
 adopting parents in lawful wedlock. 
 
 Sect. 9. No person shall adopt as a child, his or 
 her wife or husband, or brother, or sister, either of 
 the whole or half blood. 
 
 Sect. 10. Any inhabitant of any other state, adopted 
 as a child in accordance with the laws thereof, shall, 
 upon proof of such fact, be entitled in this state to the 
 same rights, as regards succession to property, as he 
 would have enjoyed in the state where such act of 
 
 tions and legal incidents and consequences oi the relation of parent and 
 child between the child and his natural parents, except the right of the 
 child to take property as heir or next of kin of his natural parents or 
 kindred, directly, or by right of representation, and except as herein 
 provided, shall be terminated by such adoption." 
 
100 IjAw op adoption. 
 
 adoption was executed, except in so far as they conflict 
 with the provisions of this act. 
 
 Sect. 11. Any person aggrieved by an order, denial 
 or decree of the probate court under the provisions of 
 this act, may appeal therefrom to the supreme judicial 
 court, in like manner as appeals may be taken from 
 other decrees of the probate court ; and the supreme 
 judicial court, in its discretion, may allow any parent, 
 who had no personal notice of the proceedings before 
 the decree, to appeal at any time within one year after 
 actual notice thereof: provided, however, that such 
 parent, so appealing, shall first make oath that he was 
 not, at the time of the petition for adoption, under- 
 going imprisonment as specified in section three, or 
 that, if so imprisoned, he has since been pardoned on 
 the ground of innocence, or has had his sentence re- 
 versed. 
 
 Sect. 12. The first ten sections of chapter three 
 hundred and ten of acts of eighteen hundred and 
 seventy-one, and chapter three hundred and eleven of 
 acts of eighteen hundred and seventy-two, are hereby 
 repealed. 
 
APPENDIX C 
 
 Massachusetts Acts of 1876, Chap. 2,13. 
 
 AN ACT 
 CONCERNING THE ADOPTION OP CHILDREN. 
 
 Sect. 1. Any person of the age of twenty-one 
 years or upwards, may petition the probate court in 
 the county of his residence, for leave to adopt as his 
 child any other person, younger than himself, except 
 as hereinafter provided. If the petitioner have a 
 husband or wife living, who is competent to join in 
 such petition, the prayer of the petition shall not be 
 granted unless the husband or wife joins therein, 
 and upon adoption the child shall be deemed the child 
 and heii; of both. 
 
 Sect. 2. No decree for such adoption shall be made, 
 except as hereinafter provided, without the written 
 consent of the child, if above the age of fourteen 
 years; and also, of the lawful parents, or surviving 
 parent, — of the parent having the lawful custody of 
 the child, if the parents be divorced, or are living 
 separate, — of the guardian of the child, if any, — of 
 the mother only of the child if illegitimate, or of the 
 person or persons who shall be substituted for either 
 of the above named, by the provisions of this act. 
 No person whose consent is hereby made requisite 
 shall be debarred from being the adopting parent in 
 said proceedings. In case of a subsequent adoption, 
 the consent of the previous adopting parent shall also 
 be required : provided, however, that the consent of the 
 14 
 
102 LAW OF ADOPTION. 
 
 persons hereinbefore named shall not be required in 
 the cases hereinafter excepted. 
 
 Sect. 3. The consent of the persons other than the 
 child, named in the preceding section, shall not be 
 requisite, if the person to be adopted be of adult age. 
 
 Sect. 4. The consent of any person other than the 
 child, named in sections one and two, shall not be ne 
 cessary if such person be adjudged by the court hearing 
 the petition to be hopelessly insane or is imprisoned 
 in the state prison or a house of correction in this state, 
 under sentence for a term of which more than three 
 years remain unexpired at the. date of the petition, nor 
 if he has wilfully deserted and neglected to provide 
 proper care and maintenance for such child for two 
 years next preceding the date of the petition ; nor if 
 he has suffered such child to be supported by any 
 charitable institution incorporated by law, or as a pau- 
 per by any city or town, or by the state, for more than 
 two years continuously, prior to the petition: "nor 
 if he has been convicted of being a common drunk- 
 ard and neglects to provide proper care and main- 
 tenance for such child ; nor if such person has been 
 convicted of being a common night walker, or of being 
 a lewd, wanton and lascivious person and neglects to 
 provide proper care and maintenance for such child :" 
 provided, however, that a giving up in writing of the 
 child, for the purpose of adoption to any charitable 
 institution incorporated by law, shall operate as a con- 
 sent to any adoption subsequently approved by such 
 institution. Notice of said petition shall be given to 
 the visiting agent of the board of state charities in case 
 the child is supported as a pauper by any city or town, 
 or by the state. 
 
 Sect. 6. Whenever the written consent required 
 by the preceding sections is not submitted to the court 
 with the petition, the court shall order notice, by per- 
 
APPENDIX. 103 
 
 sonal service on the parties, of a copy of the petition 
 and order thereon, or, if they he not found within the 
 state, hy publication thereof once a week, for three 
 successive wee'ks, in such newspaper or newspapers as 
 the court shall order, the last publication to be seven 
 days at least before the time appointed for the hearing. 
 And, in any case, the court may require such additional 
 notice and consent as may be deemed proper. 
 
 Sect. 6. Any person not appearing at the appointed 
 time and place, and then objecting to such adoption, 
 shall be held to have consented thereto, except as 
 provided in section twelve of this act; but if no one con- 
 sents or appears, the court may, if it see fit, appoint a 
 guardian ad litem, with power to give or withhold con- 
 sent. 
 
 Sect. 7. If satisfied of the identity and relations of 
 the parties, and that the petitioner is of sufficient 
 ability to bring up the child, and furnish suitable 
 nurture and education, and that it is proper such 
 adoption should take place, the court shall make a 
 decree, by which, except as regards succession to 
 property, all rights, duties, responsibilities and other 
 legal consequences, including settlement, of the natu- 
 ral relation of child and parent, shall thenceforward 
 exist between the child and petitioner and his kindred, 
 and shall, except as regards marriage, incest or cohabi- 
 tation, terminate between the persons so adopted and 
 his natural parents and kindred, or any previous 
 adopting parent ; and the court may also decree such 
 change of name as the petitioner, may request: "pro- 
 vided, however, that if the person so adopted be of adult 
 age, he shall not thereby be freed from the obligations 
 of section four of chapter seventy of the General 
 Statutes. 
 
 Sect. 8. As to the inheritance of property, any 
 person adopted in accordance with the provisions of 
 
104 I-AW OF ADOPTION. 
 
 this act, shall take the same share which he would 
 have taken if born to said adopting parent in lawful 
 wedlock, of any property which such parent could 
 have devised by will. In respect to inheritance also, 
 he shall stand in regard to the legal descendants, but 
 to no other of the kindred, of his adopting parent in 
 the same position as if born to him in lawful wed- 
 lock. In case the person adopted dies intestate, his 
 property, acquired by himself, or by gift or inheritance 
 from his adopting parent, or the kindred of such parent, 
 shall be distributed according to the provisions of chap- 
 ters ninety-one and ninety-four of the General Statutes, 
 among the persons who would have been his kindred 
 if he had been born to his adopting parent in lawful 
 wedlock ; and any property received, by gift or inherit- 
 ance, from his natural parents or kindred, shall be 
 distributed in the same manner as if no act of adop- 
 tion had taken place ; such distribution to be ascer- 
 tained in such manner as the court may decree. IS'o 
 persons shall, by being adopted, lose his right to in- 
 herit from his natural parents or kindred. 
 
 Sect. 9. The term " child," or its equivalent, in 
 any grant, trust-settlement, entail, devise or bequest, 
 shall be held to include any child adopted by the set- 
 tler, grantor or testator, unless the contrary plainly 
 appears by the terms thereof; but in no other case shall 
 a child by adoption have, under such an instrument, 
 the rights of a child born in lawful wedlock to the 
 adopting parent, unless it plainly appears to have been 
 the intention of the settler, grantor or testator to include 
 an adopted child : provided, however, that nothing in 
 this act shall be construed to restrict any right to the 
 succession to property which may have vested in any 
 person already adopted in accordance with the laws of 
 this Commonwealth. 
 
 Sect. 10. No person shall adopt as a child, his or 
 
APPENDIX. 105 
 
 her wife or husband, brother, sister, uncle or aunt, 
 either of the whole or half blood ; nor any married 
 woman, without the written consent of her husband. 
 
 No act of adoption, however, shall be held to place 
 the adopting parent or adopted child in any relation 
 to any person except such parent or child different 
 from that before existing, as regards marriage, or as 
 regards rape, incest, cohabitation or other sexual crime 
 committed by either or both : provided, that no mar- 
 riage shall be contracted between any person and his 
 or her adopted child. 
 
 Sect. 11. Any inhabitant of any other state, adopt- 
 ed as a child in accordance with the laws thereof, 
 shall, upon proof of such fact, be entitled in this 
 Commonwealth to the same rights, as regards succes- 
 sion to property, as he would have enjoyed in the state 
 where such act of adoption was executed, except in so 
 far as they conflict with the provisions of this act. 
 Any child adopted in this Commonwealth, in accord- 
 ance with the laws thereof, shall retain the rights 
 thereby conferred upon him, so far as the jurisdiction 
 of this Commonwealth extends. In case a person not 
 an inhabitant of this state desires to adopt a child re- 
 siding here, the petition may be made to the probate 
 court in the county where the child resides. 
 
 Sect. 12. Any person aggrieved by an order, denial 
 or decree of the probate court under the provisions of 
 this act, may appeal therefrom to the supreme judicial 
 court, in like manner as appeals may be taken from 
 other decrees of the probate court ; and the supreme 
 judicial court, in its discretion, may allow any parent 
 who had no personal notice of the proceedings before 
 the decree, to appeal at any time within one year after 
 actual notice thereof: provided, however, that such pa- 
 rent, so appealing, shall first make oath that he was 
 not, at the time of the petition for a,doption, undergo- 
 
106 I^AW OF ADOPTION. 
 
 ing imprisonment as specified in section four, or that, 
 if so imprisoned, he has since been pardoned on the 
 ground of innocence, or has had his sentence reversed. 
 
 Sect. 13. In case of a second adoption, all the legal 
 consequences of the first decree shall terminate, except 
 so far as any interest in property shall have vested in 
 the child, and a decree to that effect shall be entered 
 on the records of the court. 
 
 Sect. 14. The first ten sections of chapter three 
 hundred and ten, of acts of the year eighteen hundred 
 and seventy-one, and chapter three hundred and eleven 
 of acts of the year eighteen hundred and seventy-two, 
 are hereby repealed : provided, that proceedings pend- 
 ing in court under said acts, or either of them, shall 
 be continued conformably to the provisions of this act. 
 
 [Approved April 28, 1876.] 
 
TABLE OF CONTENTS. 
 
 PTION, Laws : 
 
 
 
 Massachusetts 
 
 act of 1851, chap. 334, 
 
 1 
 
 
 1853, cliap. 363, . 
 
 4 
 
 
 1853, chap. 31, 
 
 . 4 
 
 
 1853, chap. 403, . 
 
 5 
 
 
 1854, chap. 34, 
 
 . 6 
 
 
 1859, chap. 61, . 
 
 7 
 
 
 1860, G. S., chap. 110, 
 
 . 9 
 
 
 1864, chap. 313, . 
 
 13 
 
 
 1869, chap. 189, 
 
 . 14 
 
 
 1870, chap. 93, . 
 
 15 
 
 
 1870, chap. 371, 
 
 . 16 
 
 
 1871, chap. 310, . 
 
 17 
 
 
 1873, chap. 311, 
 
 . 30 
 
 
 reprint of law 1873-1876, 
 
 33 
 
 
 proposed law of 1875, 
 
 . 96 
 
 
 New Law of 1876, chap. 313, 
 
 101 
 
 
 case of Sewall vs. Roberts, 
 
 . 36 
 
 
 do do do . . 
 
 vi. 
 
 Maine, 
 
 Law as published in 1871, 
 
 . 35 
 
 New Hampshire, " " 1867, 
 
 36 
 
 Vermont, 
 
 1870, 
 
 . 37 
 
 Rhode Island, 
 
 1873, 
 
 38 
 
 Connecticut, 
 
 " act of 1875 
 
 . 39 
 
 Ohio, 
 
 " as published in 1860, 
 
 43 
 
 Indiana, 
 
 1870, 
 
 . 44 
 
 Illinois, 
 
 1874, . 
 
 49 
 
 Michigan, 
 
 1871, 
 
 . 53 
 
 Iowa, 
 
 1873, . 
 
 54 
 
 Wisconsin, 
 
 1871, 
 
 . 55 
 
 Kansas, 
 
 1868, . 
 
 56 
 
 Oregon, 
 
 1873, 
 
 . 57 
 
 California, 
 
 1871, . 
 
 58 
 
 Pennsylvania, 
 
 1873, 
 
 . 59 
 
 Tennessee, 
 
 1873, . 
 
 61 
 
 Missouri, 
 
 1870, 
 
 . 63 
 
 North Carolina, " " 1873, 
 
 63 
 
108 
 
 CONTENTS. 
 
 Adoption Laws : 
 
 Geobgia, Law as published in 1873, 
 
 . 64 
 
 Louisiana, " , ' 
 
 1870, . 
 
 65 
 
 Texas, " ' 
 
 1866, 
 
 . 66 
 
 Fkancb, Code Napoleon, . 
 
 
 68 
 
 Cases Cited : 
 
 
 
 Allen m. Bunoe, 
 
 1 Root, 96, 
 
 . 93 
 
 Allen m. Ashley School Fund, 
 
 103 Mass., 364, 
 
 94 
 
 Allyn m. Mather, 
 
 9 Conn., 133, . 
 
 . 93 
 
 Baker vs. Mattock, 
 
 Quincy (Mass.), 71 
 
 , . 87 
 
 Barnes ««. Allen, 
 
 25Ind.,323, . 
 
 . 44 
 
 Barnhizel «s. Ferrell, 
 
 47Ind., 336, . 
 
 46 
 
 Borden m. Kingsbury, 
 
 3 Root, 39, 
 
 . 93 
 
 Bowdlear m. Bowdlear, 
 
 113 Mass., 184, 
 
 . vii. 
 
 Buxton m. Uxbridge, 
 
 10 Met., 87, 
 
 93 
 
 Clarke «». Cordis, 
 
 4 Allen, 406, 
 
 33 
 
 Commonwealth m. Nancrede, 
 
 33Penn.,389, . 
 
 . 59 
 
 Corbin w. Healey, 
 
 30 Pick., 514, 
 
 90 
 
 Cuffee m. Milk, 
 
 10 Met., 366, . 
 
 . 93 
 
 Davis vs. Hayden, 
 
 9 Mass., 515, 
 
 89 
 
 Fiske vs. Keene, 
 
 35 Maine, 350, . 
 
 . 95 
 
 Hall vs. Thayer, 
 
 5 Gray, 533, 
 
 93 
 
 Hall vs. Priest, 
 
 6 Gray, 18, 
 
 . 93 
 
 Hamilton <es. Hempers, 
 
 3 Day, 339, 
 
 93 
 
 Hawley vs. Northampton, 
 
 8 Mass., 3, 
 
 . 89 
 
 Hayward vs. Howe, 
 
 12 Gray, 51, 
 
 93 
 
 Holland vs. Craft, 
 
 3 Gray, 163, 
 
 93 
 
 Ide vs. Ide, 
 
 5 Mass., 500, 
 
 89 
 
 Johnson vs. Terry, 
 
 34 Conn., 363, 
 
 . 39 
 
 Lithgow vs. Kavanaugh, 
 
 9 Mass., 161, 
 
 90 
 
 Loring vs. Thorndike, 
 
 5 Allen, 257, 
 
 . 33 
 
 Nightingale vs. Burrell, 
 
 15 Pick., 104, 
 
 90 
 
 Nourse vs. Merriam, 
 
 8 Cash., 11, 
 
 . 95 
 
 Osborne vs. Shrieve, 
 
 3 Mason, 391, 
 
 91 
 
 Parker vs. Parker, 
 
 5 Met., 134, . 
 
 . 92 
 
 Parkman vs. Bowdoin, 
 
 1 Sumner, 360, . 
 
 91 
 
 Perry vs. Kline, 
 
 12 Cush., 118, . 
 
 . 93 
 
 Phillips vs. Phillips, 
 
 
 86 
 
 Richardson vs. Noyes, 
 
 3 Mass., 51, . 
 
 . 89 
 
 Richardson vs. Wheatland, 
 
 7 Met, 169, 
 
 91 
 
 Sewall vs. Roberts, 
 
 115 Mass., 370, 
 
 . 36 
 
 Shafer vs. Eneu, 
 
 54 Penn., 304, 
 
 59 
 
 Soule vs. Soule, 
 
 5 Mass., 61, . 
 
 . 89 
 
 Terry vs. Briggs, 
 
 13 Met., 17, 
 
 92 
 
 Torrington vs. Norwich, 
 
 31 Conn., 543, 
 
 39 
 
CONTENTS. 
 
 109 
 
 Oases Cited : 
 
 Weld m. Williams, 13 Met., 486, 
 
 Welles vs. Oloott, Kirby, 118, 
 
 Wheatland m. Dodge, 10 Met., 503, 
 
 Wheelwright vs. Wheelwright, 2 Mass., 447, 
 Whittaker vs. Whittaker, 99 Mass., 366, 
 
 Wight M. Thayer, 1 Gray, 286, 
 
 Williams vs. Hichbome, 4 Mass., 187, 
 
 Winthrop vs. Leehmere, 
 
 Woodruff D«. Parham, 8 Wall., 140, 
 
 Code Napoleon, 
 
 CONSIDBKATIONS OH the Law, discussed, viz : 
 
 Duration of the Relation, 
 Who may be adopted. 
 Illegitimate children, . 
 Other relations, 
 Married women, . 
 Successive adoption. 
 Number of adopted children. 
 Who may adopt, 
 Restrictions, 
 Forms of adoption, . 
 Succession to property. 
 Inheritance by adopted child. 
 Heirs of adopted child. 
 Entailed estates. 
 Bight of representation, 
 Relatives by adoption, 
 Marriage of adopted children. 
 Sexual crimes. 
 Reciprocity, .... 
 
 Estates-Tail in Massachusetts, 
 
 Statute of 1791, 
 
 in Maine, 
 
 Feiendlt Guakdiauship, Code Napoleon, 
 Gbeat Britain, adoption not recognized in, 
 Massachusetts, Law of 1876, analyzed : 
 Sect. 1. Adopter must be twenty-one ; 
 
 child must be younger than adoptor, 
 hnsband and wife must join, and 
 child becomes child of both. 
 
 Sect. 3. Consent required of, 
 
 child if fourteen or more ; 
 
 lawful parents or parent ; 
 
 15 
 
 92 
 98 
 92 
 89 
 93 
 93 
 89 
 87 
 95 
 68 
 
 73 
 74 
 75 
 75 
 76 
 76 
 77 
 77 
 78 
 78 
 79 
 80 
 81 
 82 
 82 
 88 
 83 
 84 
 85 
 88 
 88 
 95 
 69 
 67 
 
no CONTENTS. 
 
 Massachusetts, Law of 1876, analyzed : 
 parent having lawful custody ; 
 guardian ; 
 
 mother only, of illegitimate child ; 
 previously adopting parent. 
 
 Sect. 3. Consent of child only, if of adult age. 
 
 Sect. 4. Consent not required of persons named 
 
 in sections 1 and 3, 
 
 if hopelessly insane ; 
 
 or imprisoned for sentence having three years unexpired ; 
 or if he has deserted child for two years ; 
 or if he has let it be supported as a pauper for two years ; 
 ^ or if he has been convicted as a common drunkard and 
 
 neglected child ; 
 or if she has been convicted as a night walker, &o., a/nd 
 
 neglected child : 
 a guardian may adopt his ward. 
 
 Notice is to be given to agent of State board of charities 
 in case of a pauper child. 
 
 Sect. 5. Due notice of petition to be given. 
 
 Sect. 6. Parties not appearing are held to consent ; 
 guardian ad litem may be appointed. 
 
 Sect. 7. If satisfied it is proper tlaaX adoption should take place, 
 court may decree same ; 
 except asjregards property, and sexual relations, the 
 natural relations cease towards real kindred and are 
 substituted towards adopting parents : 
 adopted adult is not freed from responsibility to 
 support natural parents. 
 
 Sect. 8. As to property — 
 
 adopted child takes a full share in property, which 
 adopting parent could devise by will ; 
 also stands as heir in respect to descendants of 
 adopting parent, but not to other kindred of adopter: 
 child retains right to inherit from natural kindred : 
 child dying intestate, his property acquired by 
 himself goes to adopter's kindred, but inherited 
 property goes to natural or adopted kindred 
 according as it came from either. 
 
 Sect. 9. The term " child " or its equivalent in any 
 
 grant, trust-settlement, entail, devise or bequest, 
 shall not include an adopted child unless such 
 appears plainly to be the intent of the grantor ; 
 Except however, the contrary shall be held where the 
 grantor is the adopter, unless he plainly excludes 
 adopted child. 
 
CONTENTS. Ill 
 
 Massachusetts, Law of 1876, analyzed : 
 
 Vested rights are not affected by this act. 
 Sect. 10. A wife or husband, and certain near blood 
 
 relatives, cannot be adopted ; 
 
 nor married women without husbands' consent. 
 
 Marriages and sexual crimes not affected by this 
 
 law, except that marriage between adopting 
 
 parent and child is forbidden. 
 Sect. 11. Children adopted in other states shall have 
 
 the same rights here, if not repugnant to 
 
 this statute ; 
 
 child adopted here retains his rights ; 
 
 child resident here can be adopted, though 
 
 adopting parent is not an inhabitant. 
 Sect. 12. Appeal reserved to Supreme Court : 
 
 but parent appealing on ground of notice, 
 
 must make oath that he was not in prison, 
 
 as provided in § 4, or has been pardoned as innocent. 
 Sect. 13. By second adoption all consequences of a 
 
 prior adoption cease, except so far as interest 
 
 in property has vested. 
 Sect. 14. Previous statutes repealed. 
 
 Act takes effect on May 28, 1876.