
    Francis Malcolm POSEY, Jr., et al. v. Emily Ann Posey WEBB.
    No. 57763.
    Supreme Court of Mississippi.
    July 20, 1988.
    Edwin H. Roberts, Jr., Roberts & Clisby, Oxford, for appellants.
    W. Glenn Alderson, Oxford, for appellee.
   HAWKINS, Presiding Justice,

for the Court:

Francis Malcolm Posey, Jr., and Eugene Bramlett Posey have appealed from a decree of the chancery court of Lafayette County holding in a partition action that Charles Sherman Posey, a lawfully adopted son of their natural parents, was a devisee under the Last Will and Testament of their late natural grandfather E.S. Bramlett, Jr., and therefore a tenant in common to land devised by Dr. Bramlett to their mother for life, with remainder to the “heirs of her body”.

Finding that the term “heirs of her body” excluded Charles Sherman Posey, we reverse and remand to the trial court for partition proceedings among the natural children.

FACTS

E.S. Bramlett was a practicing physician in Lafayette County until his death on December 11, 1950. He owned realty in various parts of Oxford and the county.

He was married to Mrs. Janie Bramlett; five children were borne unto their marriage, namely: Eugenia Regan Bramlett McLaurin, Emmie Bramlett Posey, Eugene V. Bramlett (likewise a physician), Barney Troutman Bramlett and Julian Chandler Bramlett. On August 13, 1950, Dr. Bram-lett executed a will, naming his wife as executrix. He devised to Mrs. Bramlett their homestead realty, and 223 acres of realty in the county. He devised an undivided one-half interest in realty he owned in Oxford to his wife and children in equal shares. He devised to his children, to share and share alike, all realty he owned in Tallahatchie and Panola counties, which came from his mother’s estate.

He devised to Dr. Eugene Bramlett 240 acres of realty; Mrs. McLaurin another 160 acres; and another 1,040 acres to Julian and Barney to share and share alike. He devised an undivided one-half interest he owned in a lot and building in Oxford to Julian. Mrs. Bramlett was also bequeathed the residue of his estate.

Dr. Bramlett devised to Barney the Bramlett Store Building and lot on which it was situated in Oxford:

[f]or the term of his natural life, and at his death to the heirs of his body, and in case no such heirs survive him at the time of his death, the property shall go to the surviving brother and sister of the full blood of my said son Barney Trout-man Bramlett ...

Dr. Bramlett made the following devise to Mrs. Posey:

SEVENTH: I give and bequeath unto my daughter, Emmie Bramlett Posey for the term of her natural life and at her death to the heirs of her body and in case no such heirs survive her at the time of her death, the property shall go to the surviving brother of the full blood of my said daughter, Emmie Bramlett Posey the following described lands in Lafayette County, Mississippi, to-wit: North West quarter of North West quarter of Section 5, 40 acres; a fraction of the North West quarter Section 5, 60 acres; all being in Township 8, Range 2 West: South half North West Quarter Section 32, Township 7, Range 2 West, 80 acres: South West quarter Section 32, Township 7, Range 2 West, 160 acres, containing 340 acres in the aggregate.

(Exhibit 4)

When he executed the will all of Dr. Bramlett’s children were adults.

Mrs. Posey was married to Francis Malcolm Posey, and three children were borne unto their marriage, namely: Emily Ann, Francis Malcolm, Jr., and Eugene Bramlett.

On May 18, 1949, Dr. Bramlett by warranty deed made a gift to Mrs. Posey of a lot in Oxford. While the deed stated that he did for his natural love and affection “convey and warrant to Emmie Bramlett Posey” the described realty, the final paragraph stated:

It is agreed and understood that this is to be a homestead for said Grantee, and she is not to sell, transfer, or dispose of same during her life time, and at her death said property is to become the property of her children, namely: Emily Ann Po-sey, Malcolm Posey, Jr., and Eugene Bramlett Posey.

In either 1946 or 1947, Mrs. Posey had undergone a hysterectomy, and was not capable of bearing children thereafter.

On September 25, 1953, Mr. and Mrs. Posey by lawful adoption proceedings adopted Charles Sherman Posey, who was born August 28, 1953. At the time Mr. Posey was 44 and Mrs. Posey was 40.

On April 5, 1957, pursuant to a petition for re-adoption a re-adoption decree was entered by the chancery court whereby the Poseys re-adopted Charles Sherman so as to take advantage of the broadened inheritance authorized by an adoption act passed at the special session of the Legislature in 1955.

Mrs. Posey in 1964 took out a $5,000 insurance policy on her life, naming Charles Sherman as beneficiary, and which was paid to him when she died.

Following her death, only her natural children paid taxes on the realty devised to her in the will, and only they shared in any income from it.

On January 9, 1985, Emily Ann Posey Webb, then a resident of Texas, filed a partition suit in the chancery court of Lafayette County to partite the 340 acres in kind, alleging that she, her two natural brothers, and her adoptive brother Charles Sherman, were tenants in common, and each owned an undivided one-fourth interest in the realty. Francis and Eugene filed their answer, and therein moved to dismiss the cause as to Charles Sherman, alleging that he had no interest in the land.

Following a hearing on this issue, the chancellor rendered his opinion that Charles Sherman, because of the liberalized adoption statutes in this state, inherited the same interest in the realty as each of his adoptive brothers and sister did.

The natural brothers have appealed.

LAW

What Dr. Bramlett’s attitude would have been towards Charles Sherman we can never know; indeed, speculation is idle. His will was executed three years before his daughter and son-in-law adopted this child. Dr. Bramlett died over two years before Charles Sherman was born; Dr. Bramlett’s estate was closed October 20, 1951.

The only clues are the will itself and a deed Dr. Bramlett made to Mrs. Posey. Dr. Bramlett devised his widow and three of his children their realty in fee. And, as to Barney and Mrs. Posey, when he devised them an undivided interest along with his other children, he made no distinction between them and the other children. But, in the realty he set aside for Barney and Mrs. Posey, individually, he restricted their interest to a life estate.

He furthermore ipade it clear that the remainder interest in Barney’s realty was to go to the “heirs of his body,” and the remainder interest in Mrs. Posey’s realty was to go to the “heirs of her body.” In the 1949 deed he named Mrs. Posey’s three children. It would be difficult to believe also that Dr. Bramlett was not fully aware when he executed his will that Mrs. Posey would have no more natural children.

Dr. Bramlett was an educated man. The distribution of his property under this will indicates he gave considerable thought to the distribution of his property. As a physician he would undoubtedly have a clear and fixed understanding of what “heirs of her body” meant. There is nothing to suggest he meant to expand on this term.

The record does not disclose whether Barney in 1950 had any children or not. Mrs. Posey had three, however, and Dr. Bramlett’s will provided that in event no heirs of her body survived Mrs. Posey, then the remainder was to go to her “surviving brother of the full blood.”

Barney’s devise provided that in event no heirs of his body survived him, then his interest would go to his “surviving brother and sister of the full blood.”

Although the record does not provide us with information as to whether Dr. Bram-lett had two sets of children, the will would indicate he did, that Mrs. Posey and one brother constituted one set, and Barney, a brother and a sister constituted the other.

There is also an insinuation, perhaps no more, that Mrs. Posey did not think Charles Sherman was a remainderman. The $5,000 life insurance policy on her life could have been the value she placed on an undivided interest in the land in 1964. Also, following her death, apparently the natural children did not consider Charles Sherman had any interest in the land.

No profert was made by Charles Sherman as to what the surviving heirs of Dr. Bramlett thought in reference to his devise.

HEIRS OF THE BODY

It is quite plain that heirs of the body literally excludes adopted children. The phrase is so well established that Black’s without reference to case cites defines “heirs of the body” as:

An heir begotten or borne by the person referred to, or a child of such heir; any lineal descendant of the decedent, excluding a surviving husband or wife, adopted children, and collateral relations; bodily heir. May be used in either of two senses: In their unrestricted sense, as meaning the persons who from generation to generation become entitled by descent under the entail; and in sense of heirs at law, or that those persons who are descendants of him whom the statute of descent appoints to take intestate estate. [Emphasis added]

Black’s Law Dictionary, 712 (5th Ed. 1979). See also Restatement of Property, § 306 Comment G (1940).

[T]he ordinary meaning of “heirs of the body” is lineal descendants of a named person who can take under the statute. It has a biological overtone which excludes a wife or husband and also adopted children.

In re: Trust Estate of Kanoa, 47 Hawaii 610, 759, 393 P.2d 753 (1964).

The crucial question in this case is whether or not the Legislature in 1955 by its liberal extensions of rights of inheritance by and between adopted children and their adopting parents is such that courts should construe a will provision of this nature to include adopted children of a life estate devisee.

“Heirs of the body” has a technical meaning which this Court is bound to uphold absent contrary intent expressed by the testator. The phrase is an express limitation by the testator to the devisee’s biological heirs. See Diemer v. Diemer, 717 S.W.2d 160 (Tex.Ct.App.1986); Tootle v. Tootle, 22 Ohio St.3d 244, 490 N.E.2d 878 (1986); First Nat’l Bank of Kansas City v. Sullivan, 394 S.W.2d 273 (Mo.1965); Turner v. Turner, 260 S.C. 439, 196 S.E.2d 498 (1973); In re: Trust Estate of Kanoa, supra.

Other terms are not so restrictive to their literal meaning. See generally In re: Coe’s Estate, 42 N.J. 485, 201 A.2d 571 (1964) (“lawful children” includes adopted children); Vaughn v. Gunter, 458 S.W.2d 523 (Tex.Civ.App.1970) (“children” includes adopted children); St. Louis Union Trust Co. v. Hill, 36 Mo. 17, 76 S.W.2d 685 (1934) (“heirs at law” includes adopted children); In re: Heard’s Estate, 49 Cal.2d 514, 319 P.2d 637 (1957) (“lawful issue” includes adopted children); Peele v. Finch, 284 N.C. 375, 200 S.E.2d 635 (1973) (“issue” includes adopted children). Contra Everett v. Dockery, 203 Miss. 125, 33 So.2d 313 (1948) (“issue” does not include adopted children).

The Iowa Supreme Court in Skoog v. Fredell, 332 N.W.2d 333 (Iowa 1983), examined the effect of the phrase “heirs of the body” used in a deed. The grantor deeded the property to his granddaughter for life with remainder to the heirs of her body. The granddaughter adopted Mary Ann Skoog. The Court, after stating “in interpreting a deed the intent of the grant- or is the polestar” (332 N.W.2d at 334), found that the grantor used the phrase “heirs of the body” to mean natural borne children.

The Court in Skoog cited First Nat’l Bank of Kansas City v. Sullivan, supra, where the Missouri Supreme Court was faced with defining the term “heirs of the body of my said daughter” used in the will of Oliver H. Dean. The Court, quoting in part another Missouri case, stated:

In construing the rights of an adopted child to take under a will “ * * * it is not a question of the right of an adopted child to inherit, but simply a question of the testator’s intention with respect to those who are to share in his estate.’’ [Emphasis theirs] Commerce Trust Co. v. Weed, [318 S.W.2d 289 (Mo.1958) ].

Sullivan, supra at 281.

The Missouri Court went on to hold that the phrase “heirs at law” used in Dean’s will did include adoptees, but the phrase “heir of the body of my said daughter” did not include adoptees. The Court stated, “An heir of the body had a well-defined and fixed legal interpretation as an heir begotten of the body; a lineal descendant. It was not synonymous with words ‘children/ ‘issue/ or ‘heirs’.” Sullivan, 394 S.W.2d at 282. Because Dean had the terminology used in his last will, the Court presumed that Dean chose those words with “discrimination and care.”

In Tootle v. Tootle, supra, a 1986 case, the Ohio Supreme Court found that the phrase “heirs of the body” used in the will of Allen Evans excluded adopted persons. Evans bequeathed 177 acres of land to his daughter Verna Tootle and her husband for life and then to the heirs of their bodies. The real property was sold with the proceeds placed in a trust. After the deaths of Verna and her husband, their grandchildren moved to have the trust terminated and the corpus distributed. The lower court had allowed adopted children to share in the distribution, reasoning that heirs and heirs-at-law were indistinguishable from heirs of the body. The Ohio Supreme Court reversed, stating that there is a distinct difference and that “[I]n the absence of contrary evidence, the use of the term ‘heirs of the body’ in anything other than its former statutorily-defined meaning is without legal justification.” Tootle, supra 490 N.E.2d at 881. The Court went on to say, “It is Hornbook law, however, that technical terms in a will must be given their technical meaning and the testator will be presumed, absent differing intent, to be cognizant of that existing legal mean-ing_” Tootle, supra at 881.

We believe that the meaning of the phrase “heirs of the body” clearly and literally excludes adopted children. We, therefore, reverse the trial court and remand for partition proceedings among Emily Ann, Francis Malcolm, Jr., and Eugene Bramlett.

REVERSED AND REMANDED.

ROY NOBLE LEE, C.J., DAN M. LEE, P.J., and PRATHER, SULLIVAN, ANDERSON, GRIFFIN and ZUCCARO, JJ., concur.

ROBERTSON, J., concurs with written opinion.

ROBERTSON, Justice,

concurring:

The fundamental effect of our adoption inheritance statute, Miss.Code Ann. § 93-17-13 (1972), is that it places adopted children in the same legal relationship vis a vis the adopting parents and, indeed, the remainder of the adoptive family, as though the children had been naturally born into that family. Thus, if there were no will in today’s case, Charles Sherman Posey would unquestionably take a one-fourth (¼) share of the disputed property. The difficulty is that, as an adopted child, Charles is subject not only to all of the rights of his three (3) siblings, but also the same exposures to disinheritance. As a man may by will disinherit his child, so he may disinherit his adopted child or, as in the case at bar, his adopted grandchild.

By legislative grant, those residing in this state at the time of their death have the power to control from the grave disposition of their property. Miss.Code Ann. § 91-5-1 (1972). There can be no question but that E.S. Bramlett had the legal power to provide by his will that no adopted child of his, or adopted grandchild of his, would take any interest in his property. Dodds v. Deposit Guaranty Nat’l. Bank, 371 So.2d 878, 882 (Miss.1979). Indeed a testator with conclusive legal effect may disinherit a grandchild for reasons far less rational or laudatory than that the grandchild has been adopted by his daughter.

The whole idea of empowering a man to make a will is to give him the choice of considering what will happen to his property if it passes under the statute of descent and distribution and then, if he decides that is not what he wants, to provide otherwise. We may find his provision otherwise quite scummy, but we enforce it nevertheless, subject to only a handful of exceptions.

I take it then that no one would seriously dispute that E.S. Bramlett was empowered by the law of this state to provide in his will that no child subsequently adopted by his daughter, Emmy Bramlett Posey, would every take so much as a nickel’s worth of the property he left to Emmy. The question then is whether Bramlett exercised that power in such a way that we are required to give his will that legal effect.

I have expressed elsewhere my strong conviction that instruments of privately-made law should be read as they would by an intelligent layman familiar only with the basics of the English language. I would place enormous emphasis upon correct English definition and language usage. See Thornhill v. System Fuels, Inc., 523 So.2d 983, 1007 (Miss.1988) (Robertson, J., Concurring). I think anyone familiar with the English language would have to say that a devise to Emmy Bramlett Posey for life “and at her death to the heirs of her body....” excludes any adopted children she may have, whether those children were adopted at the time the will were made or were adopted thereafter. Adopted children are simply not the “heirs of her body”, unless there is something afoot I know not of. I think Presiding Justice Hawkins’ analysis of the phrase “heirs of the body” at pages 5-8 of his proposed opinion, is quite correct, linguistically and legally as well. I find this testamentary directive far less abhorent than many others we would be bound on our oaths to enforce.

The Chancery Court, however, held otherwise and en route relied heavily on Dodds v. Deposit Guaranty National Bank, 371 So.2d 878 (Miss.1979). In Dodds, the testatrix devised certain property in trust for the benefit of her son “and his children.” The testamentary trust instrument further provided that the trustee had authority to do the necessary “for the support and maintenance and education of his children.” 371 So.2d at 879. Then came the critical language. The trust instrument provided that, at the death of the testatrix’ son, the property was to be distributed “to the descendants my son.” 371 So.2d at 879. In fact, subsequent to the execution of the will, the testatrix’ son adopted a child. In Dodds this Court held that the adopted child was a “descendant” within the meaning of the termination/distribution clause of the trust instrument. In so doing, the Court was aided by the fact that in the prior paragraph the trust had been created and directed administered for the benefit of the testatrix’ son “and his children.” In context the word “descendants” seems a synonym for “children” — and no one would question that the unqualified word “children” in a will would include adopted children.

Taking Dodds as a holding that the word “descendants” in a testamentary instrument includes adopted children, the Court below in the case at bar held that there is no legally significant distinction between the term “descendants” and the term “heirs of her body.” The Court reasoned, quite correctly, that each term connotes persons of one’s own blood and the biological begetting process.

A careful reading of Dodds yields a different view. Two statements appear reinforcing my reading that Dodds reads “descendants” as synonymous with the there previously used “children”. First, there is the Court’s conclusory statement that the adopted child is entitled to

share in the trust as a member of the class created by the trust unless there is language within the will directing otherwise.”

371 So.2d at 881. [Emphasis supplied] Second, in an exposition regrading the testator’s intent, the Dodds court said

Neither was the trust limited to the natural children of Edwin as could easily have been done.

371 So.2d at 882. [Emphasis supplied]

In the end, I come back to a point mentioned above: that a testator has the legal power to include or exclude adoptive children or grandchildren as he or she sees fit, only now my concern is whether others around this state may have read Dodds as the Court below read it and relied to their detriment. It would give me pause if I thought a testator making a will in consultation with counsel and reading Dodds would have his or her will thwarted or frustrated by a decision today that Charles Sherman Posey was not an heir of the body of Emily Bramlett Posey. In my judgment the chance of that is one quite remote. Rather, a competent attorney carefully reading Dodds could only come to one conclusion, to-wit: to be sure that his client’s will did not get into litigation with the result that the client’s intention be frustrated, the point of inclusion or exclusion of adopted children should be addressed with far greater clarity. Great risks would attend reading Dodds as holding that the word “descendants” without more includes adoptive children and lawyers are charged to see that risk. Competent lawyers advising clients wishing to include adoptive children would surely counsel far greater specificity. 
      
      . The Court noted that it had previously abandoned the "stranger to the adoption rule” thereby recognizing a presumption that strangers do not differentiate between natural borne and adopted children unless a contrary intent is expressed. Even under this liberal view, the phrase “heirs of the body” shows such contrary intent. See also Elliot v. Hiddleson, 303 N.W.2d 140 (Iowa 1981); In the Matter of the Estate of Nicolaus, 366 N.W.2d 562 (Iowa 1985).
     
      
      . See, e.g., Miss.Code Ann. § 91-5-25 (1972) (limitations on right to disinherit one’s spouse); Miss.Code Ann. § 91-5-31 (Statute of Mort-main); Carter v. Berry, 243 Miss. 321, 136 So.2d 871, 140 So.2d 843 (1962) (Rule against perpetuities); Tinnin v. First Bank of Mississippi, 502 So.2d 659, 665-66 (Miss.1987) (racial restrictions).
     