tion of it, statutes of adoption have always been more or less strictly construed as against the adopted child. ***Speaking of this plaintiff, Valliant, J., in Lynn v. Hockaday, 162 Mo. 111 (in a suit where she was claiming an interest in her adopted father's estate), says: 'Like a bud that has been cut from its natural stem and grafted into a foreign tree, she grew into the family and became a part of its very life-everything that adoption contemplates was accomplished.' That metaphor, chaste as a gem, does not mean nor was it intended to mean, that plaintiff passed current as an heir, made such by the mold and stamp of consanguinity. It means that as between her and James Lynn she was given 'everything that adoption contemplates' that and no more. *** It appears, then, that the event of adoption fixes the status of the child adopted in relation to the adoptive parent and to no one else. Says Tiffany on Persons and Domestic Relations, sec. 112: "The law cannot and does not purport to do the work of nature and create one a child who by nature is a stranger. But it can and does fix the status of the adoptive child to the adoptive parent as substantially the same as the status of a natural child. * * * Indeed, it may be asked: Which of you, by taking thought, can add one cubit to his stature? No more, then, can A, by taking thought (i. e., by making a contract), make a stranger of blood kin to A's own kindred-make an adopted child have inheritable blood to A's collateral kin. *** But it is useless to pursue the theme further, since, in a general way, it may stand assumed as sound law, that consanguinity is so fundamental in statutes of descents and distribution, that it only may be ignored by construction when courts

8

derman. And in the same jurisdiction such an "heir" was held liable to collateral inheritance tax as to property he took from his adoptive parent."

And it has been decided that an adopted child has no right of inheritance from a lineal descendant of his adoptive parent. "As to them and their estates, the adopted child stands in no other relation than that existing before the act of adoption," unless the statute says he shall take the same place as a legal descendant, but even then he has no right to inherit from the collateral kin of the adopting parent.11

But this branch of the inquiry I am pursuing may be ended by quoting from a late Kentucky case,12 in which there was claim by an adopted child to inherit from the ancestor of his adoptive parent. The court, first making reference to a prior case,13 in which it had been held that the children of an adopted child inherited from his adoptive parent, said: "We are cited to no authority, statutory or otherwise, where it has been held that an adopted child is thereby made capable of inheriting from the kindred of those who have adopted him. But in Van Matre v. Sankey, 148 Ill. 536, 36 N. E. 628, 23 L. R. A. 665, 39 Am. St. Rep. 196; Meader v. Aucher, 65 N. H. 214, 23 Atl. 521; Phillips v. McConica, 59 Ohio. St. 1, 51 N. E. 445, 69 Am. St. Rep. 753 and Gunderland's Estate, 60 Iowa 732, 13 N. W. 655, it is expressly held that an adopted child cannot inherit from the collateral kindred of its adoptive parents, nor from the ancestors of such parents, nor from their natural children. And in Vermont, where, by special statute an adopted child is made an heir at law in as full and perfect a manner as if born to the adoptive

parents, it is held that the adopted child cannot become an heir of a brother of his adoptive mother, although she would be an heir if living. Moore v. Moore, 35 Vt. 98. And in Helms v. Elliott, 89 Tenn. 446, 14 S. W. 930, 10 L. R. A. 535, it is held that an adopted child cannot inherit from the natural children of the man adopting him or their descendants. The reason for this uniformity of rule is apparent. The act of the foster parents in adopting their child is a contract into which they entered with those having the lawful custody of the child, an agreement personal to themselves, and, while they have a perfect right to bind or obligate themselves to make the child their heir, they are powerless to extend this right on his part to inherit from others. All inheritance laws are based or built upon natural ties of blood relationship, whereas an adopted child's right to inherit rests upon a contract, and hence only those parties to the contract are bound by it."

Thus we see that in two states, and though they regard the right of an adopted child as dependent on contract, and is binding only on, and gives rights only to, the parties thereto, this contract right does survive the death of the adopted child so far at least as the adoptive parent is concerned, one of these states, Kentucky, first holding as in Merritt v. Morton, supra, and the other first holding as in Benero v. Goodwin, supra. Is there a radical inconsistency in their respective rulings? I take it that independently of express statutory provisions, it is established law, that an adopted child cannot inherit through, but only from, his adoptive parent. This follows as a result of the strict construction

applied to adoption statutes, because of their being in derogation of common law. But the contract or act of adoption itself may be liberally construed in the child's favor. There may be much to persuade courts to the view, that this liberality should obtain as to a child when it might not be exercised as to an ordinary contract, when parties would stand at arm's length.

Cases Holding that Child of Adopted Child Inherits from Adoptive Parent.There have been expressions by courts that an adopted child stands like a child, or an heir, but they were not made where there was any question involved of his children or his descendants. There are not many cases, where the right of a child of an adopted child in the estate of the adoptive father was the matter to be decided, but all I have been able to find expressly declare that he has such right.

It was

The oldest of these cases was decided in Louisiana1 in 1858, and it has been frequently referred to in later cases. The opinion in this case referred to the Roman law as showing that one by arrogation became the grandson of another, that is to say, his adopted father being a son, his son by arrogation or substitution or representation stood in the shoes of his father. said: "The French law also admitted of adoption and the adopted succeeded to the inheritance of the adopter." And "it was also known to the Spanish law and the person adopted succeeded as heir to him who adopted him." These were laws of Louisiana "until the adoption of the Code of 1908." Did that code repeal adoption laws under former regimes?

The court, reasoning as to whether Louisiana adoption statutes changed what it said. was the rule under Roman, French and Spanish law, said these statutes failed to define the word "adoption," and therefore "it may be inferred that it was not the intention of the law-giver" to use "the term in a more restricted sense than that known to our former laws." It is further said that "words having a well-known signification in the sources of our jurisprudence ought to be considered as used in that sense

when embodied in a statute."

As I understand this reasoning, this case ought to have little influence in courts, the sources of whose jurisdiction lay outside of the systems which were the sources of Louisiana law. The argument by the court

(14) Vidal v. Commagere, 13 La. Ann. 516.

looks altogether reasonable, but, if its former laws helped it in no way to define adoption, it would have been obliged to look to its statutes for a definition. Thus it was urged that the adoption statute was in derogation of the (Louisiana) law in regard to inheritances," but the court did not find any such derogation to exist. It might have looked to its law of inheritances for aid in construction, if a term had been used to which former laws had given no definition.

In 1874, the question came before the Supreme Court of Georgia.15 There the court said: "The very act under consideration provides that (the adopted son) shall be capable of inheriting under the statute of distributions. Assuming, then, that Matthew was made by this act the lawful son and declared capable of inheriting, it seems clear to us that under paragraph 4 of section 24, Code, 'the lineal descendants of children stand in the place of their deceased parent.""

This case turns purely upon statutory construction and in support of its conclusion refers to another case,16 which, in view of what I said above seems to be established, namely, that an adopted son could not inherit from the other children of the adoptive parent. It was also said that: "In most cases of the kind it is a mere mode of legitimating the real fruit of the father's loins, and it is no unfair presumption that it is the intent of the father, so far as he and his property are concerned, to make the relation exactly what it would have been had there been a lawful and actual relation of parent and child." I think the more general view is that adoption is a matter of contract and it seems a considerable stretch to say that the private intent of one resorting to the statute shall affect or control the meaning of rights acquired under such statute At all events

17

Kentucky Court of Appeals decided in 1887, held that a special act for the adoption of a child "making her capable of taking and holding, by descent the estate of said Frederick Hafley, real, personal and mixed in as full and as complete a manner as if she were his lawful child," made her children capable of inheriting from the estate of Frederick Hafley.

The opinion says: "We get no light from the common law to guide us in the present investigation. *** But the civil law made ample provision in that regard. And we presume that the Legislature in passing the act, supra *** had in view the principles of that law in arriving at the construction. we have given that act." Then the court consults the civil law and says: "The logical sequence of the language of the act supra, aided as it is by the principles of the civil law, the conclusion is inevitable that the appellants are the legal grandchildren, etc., and as such entitled to share in his estate." The opinion says by way of caution that this conclusion does not involve "deciding that the adopting parent can make the adopted child the heir of other people so as to entitle such child to inherit property that does not come directly from the adopting parent." But the court does go to another system of law to expound a doubt when "there is nothing in the statutes of descent and distribution that militates against the construction we have given the act under construction. If there is any difference in going over to some law a state never recognized at all in its jurisprudence and having no law at all to go to, I fail to see it. At all events this decision is a civil law decision pure and simple.

A decision by Kansas Supreme Court rendered in 1896,18 argues that as "adoption of children is an invention usually accredited to the civilians," and "in the con

to appeal to that law as an aid in the interpretation of the statute; and we think it plain, from the language of our statutes construed in the light of adjudged cases and the principles of the Civil Law, that the widower and the child of Alice Ann inherited through her an interest in the estate of Adam Huffman."

This case as seen plants itself on the civil law and takes in not only a child of an adopted child, but also the surviving husband. It goes outside of lineal descendants when the cases referred to also relying wholly on civil law, spoke of “grandchildren" of an adopting father.

In a California case decided in 1903,1o there was raised the question whether the children of an adopted daughter were or not subject to a collateral inheritance tax, where a bequest was left to them in trust by the adoptive father of their mother. Had they have been his natural grandchildren they would have been undoubtedly his lineal descendants. The court decided that under the California statute prescribing that an adopted child and the adoptive parent "shall sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation," the adopted child was to be deemed a lineal descendant and so were

deemed her children so far as the adoptive parent was concerned. It is quite apparent, however, that this holding, whether sound or otherwise, resulted from statutory construction pure and simple. It is pointed out that there is nothing in California law which requires that "issue" shall be limited "to the natural children only." I take it then I take it then that the rule of status acquired, rather than of consanguinity, obtains in that state.

In Vermont in 1912,20 the child of an adopted child was held entitled

to inherit

England, and in this country, in states, whose jurisprudence is based exclusively on that system, it exists only by statute. *** It has, however, been recognized by the civil law from the earliest days of its existence, and on the provisions of that law our statute, as well as largely the statutes of adoption in the different states of the union, has been founded. It is, therefore, reasonable and proper to look to the civil law for the proper definition of the term and in aid of the interpretation of the provisions in question."

Summary. We have thus seen that in every case where there have been claims by children of an adopted child to inheritance in the estate of their adoptive grandparent, these claims have been allowed. Either they have taken by force of language in adoption statutes, or by the fact that the courts held there was nothing in the statutes of descents and distribution that restrained lineal inheritance to those of the blood. And this brings me to the late case in Missouri Supreme Court referred to supra.21 This case pointedly refers to the cases which. follow the civil law, because there is no statutory rule to the contrary, but the court says additionally that: "It is not necessary to refer to the civil law to ascertain whether an adopted child in Missouri is thereby given the right to be an heir, this because the Missouri adoption statute expressly says she is an heir. Neither is it necessary to look to the implication of representation arising from the use of the word 'heir'; this because the statute of descent takes hold of the matter when once the status of an

inheriting child is given the adopted child, and provides for representation or succession by the use of the words 'or their descendants.""

I have not thought it well to discuss any

to resort to the civil law, merely because a statute in providing for a contract relation uses an apt word found in the latter law. This is so, because there is no presumption to be indulged that the legislature knows anything about the civil law at all. It is something of a large presumption to credit it with acquaintance with the common law, but this presumption must be indulged as a matter of necessity. At all events, it seems to me that courts should scan closely the statute of a common law state to find the least intimation whether or not, for example, its statute of descents is built upon consanguinity or rejects same, before it will construe a law as referring to a principle in a system that is presumptively in a sealed book so far as legislative knowledge is concerned. What, indeed, are presumptions worth when they can take as wide a sweep as that? It was perfectly legitimate for the Louisiana courts to look to such system, just as other courts look to our common law, for a definition of terms. St. Louis, Mo.

Defendant appealed from an order denying a new trial.

The shipment was consigned to plaintiff, "notify Carl Person." It arrived at Poplar, but was not delivered to the consignee. Whether this constituted a conversion of the goods by defendant depends upon whether it is a defense that the goods were seized by a constable under a writ of replevin issued in an action brought in a Montana justice court by one Alice Sorenson against the plaintiff herein and permitted by defendant to be taken from its possession and detained from plaintiff. It appeared from the evidence that Alice Sorenson was the owner of the goods, but that plaintiff was entitled to possession thereof under an oral agreement with the owner by which the goods were held as security for money advanced by plaintiff to the owner. At the time of the shipment there was due plaintiff $196.78, and Alice Sorenson, who was the wife of Charles Sorenson, or "Person," was to be entitled to the goods shipped upon the payment by her of a draft in that sum which was attached to the bill of lading and forwarded for collection to a bank at Poplar. The Sorensons seem to have objected to the amount of this draft, and on the arrival of the goods at Poplar the replevin action was brought by Mrs. Sorenson against plaintiff. A writ was issued, served by the constable, and the goods delivered to him by defendant.

It was a good defense to this action for conversion if defendant proved that the property was seized under legal process regular and valid upon its face, and that it notified the shipper promptly of the pendency of the proceedings. This notice was promptly given the shipper in the present case, in ample time to enable him to make a proper defense. The inquiry is then: Was it proved that the process under which these goods were seized was regu. lar and valid upon its face? Thomas v. N. P. Express Co., 73 Minn. 185, 75 N. W. 1120; Merz v. C. & N. W. Ry. Co., 86 Minn. 33, 90 N. W. 7.

The process was valid unless we can sustain either one of the two following contentions made by counsel for plaintiff: The seizure was an interference with interstate commerce. plevin does not lie because the property sought to be recovered was not in the possession of the defendant in the action.

Re