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In Michigan the Court held, 29 that an greatest confusion in its application. Sup adopted child cannot share in the distribu- pose the adopted child should for many tion of the estate of the brother of its years outlive its adopting parent and also adopting mother, that is, cannot inherit
its natural parent, having by inheritance through the deceased adopting mother, her derived property from each, and having share in her brother's estate. The Court also accummulated property of its own. said: "The power to inherit from the How could any court undertake to deteradopting mother is given by the statute, mine what portion of the estate left by such and that is as far as the statute goes. It child goes to heirs in the line of the adoptdoes not say that she shall be the heir of ing parent and what portion should go to the adopting mother's kindred, nor that heirs in the natural line?" she may inherit from them by the right of In Missouri it is held,32 that the natural representation of the adopting mother." child of an adopted child shares in the dis
The same rule is followed in Missouri. tribution of the estate of the adopting parA bachelor died intestate, leaving surviving ent dying intestate, the adopted child havhim a brother, and nephews and nieces. A ing predeceased the adopting parent. Judge brother predeceased him, leaving one son Williams, speaking for the Court, quotes and an heir by adoption. This adopted from Ruling Case Law,33 as follows: "If child claimed that she was an heir of her an adopted child dies during the life of its adoptive father's brother. After a very adopting parent, leaving children, such chilfull discussion of the subject, Judge Lamm dren are for most, if not for all, purposes, says: “The doctrine to be gathered from regarded as natural grandchildren of the the foregoing cases is announced to be, in adopting parent, and are entitled to repreeffect, to deny the right of the adopted sent their parent and to receive from the child to succeed to the estate of any mem- estate of his adopting parent what he would ber of the adopting family, other than the have been entitled to receive had he lived adopting parent, and that such adopted until after such parent's death." In the child does not succeed to the estate of an- same case, Judge Williams says that the cestors or collateral kin of the adopting natural child of the adopted child, does not parent, nor to the estate of children born to
in a proper sense, take under the deed of the adopting parent. 30
adoption. The deed of adoption created Inheriting From Adopted Child.-In
the status of an inheriting child in the Iowa it is held, 31 that under the general in
adopted child and the right of the child heritance statutes of the State the heirs of
of the adopted child to represent his father an adopting parent, upon the death of an
is given by the statute of descents, by the adopted child, unmarried and without issue,
use of the words "or their descendants." would not inherit the property of such child, In a much earlier case, 34 it was held that but that the same would pass to the natural
on the death of an adopted child his estate parents of the child. The Court said: "The
will go to his relations by blood, and not to attempt to introduce a peculiar rule of de
those by adoption; and this even where the scent for property acquired by the adopted
estate which so descends has been derived child from the adopting parents might seem,
from the adoptive parent. in particular cases, to be more in accord
The same rule is followed in Wisconsin, ance with our general notions of natural
where it is said35 that "the statute having justice. Such rule would, however, not
expressly declared that the adopted child only be without statutory authority, but in many cases would unnecessarily lead to the
(32) Bernero v. Goodwin, 267 Mo. 427. (29) Van Derlyn v. Mack, 137 Mich. 146.
(33) R. C. L. 614. (30) Hockaday v. Lynn, 200 MO. 456.
(34) Reinders v. Koppelmann, 68 Mo. 482. (31) Baker v. Clowser, 158 Iowa 156.
(35) Hole v. Robbins, 53 Wis. 514.
shall inherit from the adoptive parents, and Court reviewed the authority exhaustively, having omitted to declare that the adopted and said that as the doctrine of adoption parent shall inherit from the child, we think was unknown to the common law, but was it must be held, according to the rules of recognized by the civil law, it was proper construction, that the general law of inher- to look to the civil law for the proper itance was not intended to be changed in definition of the term and in aid of the infavor of the adoptive parent, and that the terpretation of the provisions of the Verestate of the adopted child upon his death mont statute on the subject of adoption. without a will, must descend to his kindred | The Court quoted from the Vidal Caseti of blood.”
as follows: "Under the Roman law, the In Arkansas the adopting parents do not person adopted entered into the family, and inherit from the adopted child,36 and in came under the power of the person adoptIllinois the statute provides that the adop
ing him. And the effect was such that the tive parents shall not inherit any property
person adopted stood not only himself in of the adopted child that came to it from
relation of child to him adopting, but his its kindred by blood.37 But in South Da children became the grandchildren of such kota the contrary is the case,38 and there it is held that the adopting mother took This same question came up for the first all the real property situated in that State time in the Court of Appeals of Kentucky which the adopted child inherited from his in 1911, before the Walworth Case, supra, kindred by blood.
was decided, and the Kentucky Court In Indiana it is held,39 that the adopting
held,42 that the child of the adopted child parent or his or her heirs inherit from the
could not inherit the share which his foster adopted child all property, real and per
mother would have received, if living, from sonal, that came to the adopted child by
| the estate of her mother, who died intesgift, devise, or descent from the adopting
tate. The Kentucky case is very brief, and parent or parents, whenever he, she or they cites two Kentucky cases, 43 where it is held would have inherited such property if the
that the adopted child is made capable of adopted child had been the natural child inheriting from its adopting parents, as if of the adopting father or mother, to the
he had been born to them and were in fact entire exclusion of the natural heirs of such
their child. But the Court said: “But we child.
are cited to no authority, statutory or oth
erwise, where it has been held that an Inheriting Through Adopted Child.-In
adopted child is thereby made capable of Vermont an intestate died, leaving a wife
inheriting from those who have adopted surviving him and several brothers and sis
him.” The Court cites other cases*4 as ters and an adopted daughter. During the
expressly holding that an adopted child life of the intestate the adopted daughter
cannot inherit from the collateral kindred died, leaving surviving her a son. The
of its adoptive parents, nor from the anCourt held, 40 that the son of the adopted
cestors of such parents, nor from their daughter, deceased, was entitled to inherit
natural children; and, continuing the through her by right of representation a share in the adoptive father's intestate es
(40) In re Walworth's Estate, 85 Vt. 322. tate. The question came up for the first (41) 13 La. Ann. 516. time in the Vermont Court (1912) and the (42) Merritt v. Morton, 143 Ky. 133.
(43) Power v. Hafley, 85 Ky. 671; Atchison
v. Atchison, 89 Ky. 488. (36) White v. Dotter, 73 Ark. 130.
(44) Van Meter v. Sankey, 148 Ill. 536; Mea(37) Hurd's Rev. Stat. 1909, C. 4.
der v. Archer, 65 N. H. 214; Phillips v. McCon(38) Calhoun v. Bryant, 28 S. D. 266.
ica, 59 Ohio St. 1, and Sunderland's Estate, 60 (39) Davis v. Krug, 95 Ind. 1.
Court said: "And in Vermont, where by In New Hampshire the son of an adoptspecial statute an adopted child is made an ing parent cannot inherit through the heir-at-law in as full and perfect a manner adopting parent the estate of the latter's as if born to the adopting parents, it is held mother, where the adopting parent dies bethat the adopted child cannot become an fore his mother. 46 heir of a brother of his adoptive mother, In Georgia, where the testator adopted a although she would be an heir if living."'45 child and the child died before the testator, The Kentucky Court then said: "The act the children of the adopted child stood in of the foster parents in adopting the child their father's place and inherited the share is a contract into which they entered with of their father in the testator's estate.47. those having the lawful custody of the In Kansas an adopted child died intestate, child, an agreement personal to themselves, leaving a husband and child, before the and while they have a perfect right to bind death of her adoptive father, who left suror obligate themselves to make the child | viving a widow. The Court held, 48 that their heir, they are powerless to extend this the widower and child inherited the share right on his part to inherit from others. in the estate of the adoptive father, which All inheritance laws are based or built upon the adopted child would have taken had natural ties of blood relationship, whereas she been alive when he died. an adopted child's right to inherit rests
In 1842 the Legislature of Kentucky by upon a contract, and hence only those par
a special act authorized one Hafley to ties to the contract are bound by it.”
adopt a child in which she was made In the Walworth Case, supra, the l'er
capable of taking and holding, by descent, mont Court said: “The exceptants rely
ihe estate of her adopting father, real, per
sonai, and mixed, in as full and as complece upon the cases of Moone v. Moone's Exrs.,
a manner as if slic was his lawful child. supra, and Stanley v. Chandler, 45a as authorities against such right of representa
After the adoption she married one Power, tion. Yet they are not so.
In the Moone and several years after her marriage, she Case by the special act the name of the
died, leaving children. After her death,
the adopting father, Hafley, died. The chilperson was changed, and she was constituted heir-at-law of,' etc., in as full and
dren of the adopted daughter claimed the
estate of the adopting father as his legal perfect a manner as if she had been the daughter of the said man and wife named,
representatives. The Court held, 49 that the born in lawful wedlock.' The word
children of the adopted mother were the 'adopt' or 'adoption' is not used in the act,
legal grandchildren of the adopting father,
and as such were entitled to share in the hence a construction based upon the mean
distribution of his estate, under the Kenirg of the term 'adoption' under the civil 11w, as in the Louisiana case, could not be tucky laws of descent. given; nor did the act confer upon either
Do Terms "Child," "Children," "Heirs," party, any rights, duties, or obligations
“Issue,'' etc., Include Adopted Children?
-The word "heirs" will include all who other than such as resulted from the mere creation of an heir-at-law. * * * We think
stand in a relation to the ancestor that will that the Moone Case and the Stanley Case
entitle them to inherit upon his death. This are so distinguishable in bases, and in the
would include an adopted child, for the questions involved, from the case at bar, statute puts him on an equality with chilthat they have but little force as precedents
dren by birth for the purpose of inheriting in solving the questions before us."
(46) Meader V. Archer, 65 N. H. 214.
(47) Pace v. Klink, 51 Ga. (45) Moone v. Moone, 35 Vt. 98.
(48) Gray V. Holmes, 57 Kan. 217. (45a) 53 Vt. 519.
(49) Power v. Halfley, 85 Ky. 671.
from the adopting parent. By adoption he alty, and if no issue, one-half, the Court acquires no right to inherit from anyone held,52 that the adopted child was issue else than the adopting parent.
within the meaning of the statute and that
the widow was only entitled to one-third In this case, the testator devised land
of the surplus. "The word 'issue' has alto his son, but provided that if his son died
ways been construed to mean a child or leaving no heirs, then the land was to go to children, or their descendants, born of the other children of the testator.
marriage, and capable of taking at the death died, leaving no children born in lawful of the intestate; but the statute in question wedlock, but left adopted children. When
has intervened, and, on the application of the will was made there was no law in Illi
both husband and wife, the adopted child nois providing for the adoption of children,
is made to inherit in the same manner as if The Court held that these adopted children
a child in fact." could not have been within the contempla
An adopted child can inherit property tion of the testator, and, therefore, they
deeded to his adopting father and his heirs, could not inherit the property devised to
and not property deeded to his adopting their adoptive father.
father and his "bodily heirs," because he A testator in a Massachusetts case,51 in
is not an heir of the body of his adopting his will devised the remainder to the heirs
father.53 A testator left a fund to trustees at-law of his said wife. When the wife to pay the income, in stated proportions, to died she left no children, born of her body, children and grandchildren, and upon their but she left an adopted son that she had
death to pay their respective portions to
their lawful issue, and, if any of them adopted several years after the testator's death. The Court held, that under the
should die without leaving lawful issue,
then a gift over. adoption statutes in force at the time the
A granddaughter died, adopted child was not an heir-at-law of leaving no issue of her body, but leaving the wife, within the meaning of the law,
an adopted daughter. The Court held, 54 and as there was nothing to show that the
that the word “issue,” as used in the will, testator contemplated that his wife might,
included all descendants; and as the statafter his death, adopt a child, it was im
ute gave to an adopted child the status of possible to say that, in the words of the
descendant, and all the legal constatute, it plainly appeared to have been
sequences and incidents thereof, the same the intention of the testator to include in his
as though he were born in lawful wedlock, devise an adopted child of his wife. He
and, hence, the same as "lawful issue," he
was entitled to take the fund under the bewas not the natural heir of the wife, and the statutes did not give him all the quali
quest. ties and rights of an heir, but only certain
A, in 1825, made a voluntary conveyance, limited rights. Where a husband and wife without reserving any power of revocation, adopt a child and the husband dies, and of personal property to an annuity company leaves by his will a tract of land to a child in trust, to pay the income to him for life, of his adopted child, and restricts his and upon his death to transfer the principal widow (the mother of the adopted child) sum to his executor or administrator, for to that portion of his estate to which she the special use and benefit of any child or was entitled under the statute, which pro
children of A; if only one, in trust for his vides that if the intestate leaves issue the or her use and benefit; if more than one, widow shall have one-third of the person
for their use and benefit equally, the legal
(50) Wallace v. Nolan, 246 Ill. 535. (51) Wyeth v. Stone, 144 Mass. 441.
(52) Atchison v. Atchison's Exrs., 89. Ky. 488.
representatives to take their parent's share; In California,58 legacies in trust for the in case of A's death without leaving any benefit of the children of the adopted issue, to pay the principal to the mother daughter of a deceased testator are exceptfor her own use; in case A survived his ed from the provisions of the law estabmother and died without leaving any law-lishing a tax upon "collateral inheritances. ful issue, then to pay the principal sum to bequests and devises." his executor or administrator in trust for the use of his heirs-at-law, and the heirs
If the adopted child is by virtue of its at-law of his mother equally to be divided status to be regarded and treated in all between them. A subsequently undertook
respects as the child of the person adoptto change the terms of the settlement. In ing. and is to have all the rights and be 1865 he adopted a child in pursuance of subject to all the duties of the legal relation the laws of the State, and died in 1872,
of parent and child the right to succeed to leaving no other child, his mother having the estate of the deceased parent must be died before him.
included. The word "issue" includes all
descendants, and as the statute gives to an The Court held, 55 that A had an equitable life estate and no power to change the adopted child the status of a descendant
all the legal consequences and incidents terms of the settlement, and that the
thereof follow, the same as though the adopted child took the remainder of the
child was born in law ful wedlock. A child property as a “child" under the settlement
is a lineal descendant of its adopting paras one of the “legal consequences and inci
ents; and if, as declared by the civil code, dents of the natural relation of parents and children," by virtue of the statute of
an adopted child is to be "regarded and
treated in all respects as the child of the adoption.
person adopting" and the two "sustain toConclusion. The law of adoption con
wards each other the legal relation of parfers no right upon an adopted child to ad
ent and child, and have all the rights and minister the estate of a deceased adopting
be subject to all the duties of that relation,” parent, or to select an administrator.56 It
it must follow that the children of such is held in Pennsylvania," that an adopted adopted child take by inheritance as issue child is not exempt from payment of col
of the adopting father. Otherwise, the lateral inheritance tax. “It is property de
child adopted and the adopting parent vised or descending to children and lineal
would not sustain towards each other the descendants that is exempt from the tax.
relation of parent and child. Again, the If the heirs or devisees are so in fact, they
act under which the taxes were imposed by are exempt; all others are subject to the
the Court below in its title relates to "coltax. Giving an adopted son a right to in
lateral inheritances, bequests and devises" herit does not make him a son in fact. And only, and under the provisions of the Conhe is so regarded in law, only to give the
stitution its effects must be limited to the right to inherit, and not to change the col.
subjects thus described. This would exlateral inheritance tax law. As against that
clude successions or bequests to children law, he has no higher merit than collateral and grandchildren, whether adopted, or blood relations of the deceased, and is not
natural, for clearly they are not collateral,
but in direct line. at all to be regarded as a son in fact."
W. W. HERRON.
Jefferson City, Mo. (55) Sewall v. Roberts, 115 Mass. 262. (56) Smith's Estate, 225 Pa. St. 630. (57) Commonwealth v. Nancrede, 32 Pa. St. (58) Estate of Winchester, 140 Cal, 468.
(59) Civil Code, sec. 227.