ÆäÀÌÁö À̹ÌÁö
PDF
ePub

Elliott), and admits that but for the previous analogous holdings of the Iowa Court a different conclusion might be reached. An adopted child may inherit from its natural relatives and also from its adopting parents. This was the rule of the Civil Law 13 There is no reason why a child that has been adopted by others should be cut off from inheriting from its own relatives. Because of the adoption the child acquires certain additional rights, but there is nothing in the act of adoption, which in and of itself takes away other existing rights, or such as may subsequently accrue, except such as is by statute provided.1 By the act of adoption the child becomes in a legal sense the child of the adopting parent. Nevertheless, he is the child of his natural parents, and the act of adoption does not deprive him of the statutory right of inheriting from his natural parents, .unless there is a statute which in terms so provides. Where a father adopted two children of his daughter, and afterwards died, leaving no will, the children so adopt-❘ ed inherited from him as his own children, and also inherited the share of their deceased mother. The law in Missouri is,16 that when the husband shall die without any child or other descendants in being capable of inheriting, his widow shall be entitled to one-half of the real and personal estate belonging to the husband at the time of his death, absolutely, subject to the payment of the husband's debts. A husband A husband and wife adopted a child and the wife died. Afterwards the husband married again. He died testate, having devised land to his! adopted son. His widow claimed half of his estate, on the ground that her husband left no child, within the meaning of the statute. But the Court held, that for all

the purposes of inheriting from the adopt ing parent, the adopted child became, and

[blocks in formation]

was, the lawful child of the adopting parent, and was a child within the meaning of the statute above set out, and that the widow was not entitled to one-half of the land.

Inheritance in Two-fold Capacity as Child and Grandchild.-A testator, leaving his property in trust, provided that the trustees, upon the death of all the testator's children, "shall distribute such trust property remaining in their hands to such of my grandchildren as shall then be living, in equal shares, so that none shall take by representative, but all per capita." The testator adopted one of his grandchildren as his own child. This adopted child (in fact, a grandchild) died during the life of the last surviving child of the testator, leaving a son surviving him. This son claimed that as the testator had adopted his father as his own son, he thereby became a grandson of the testator, and consequently entitled to a grandson's share of the testator's estate. But in his will the testator said that having adopted his grandchild as his own child, it was not his intention that he should share in his estate as one of his children, "but that he should take under my will only the share of a grandchild." The Court held that under this clause of the will, the son of the adopted child was not entitled to any part of the testator's estate, on the ground that the testator had disregarded the adoption, so far as the inheritance of his adopted child was concerned, and had provided in his will that he should only take the share of a grandchild.

In a Massachusetts case1o a person died intestate, leaving as his heirs at law and distributes five daughters and a grandson, the only child of a deceased son. After the death of his son, the intestate adopted his grandson as his child. This adopted son claimed one-seventh part of the estate of the intestate as an adopted son, and also one-seventh part by right of representation

[blocks in formation]

of his father. The Court says that "the same person cannot, as to the legal descend- | ants of his adopting parents, stand in the position of his son and at the same time claim to inherit a portion of his property as his grandson. It is to be continually borne in mind that we are not dealing with the question whether Henry Curtis can inherit as a son from his adopting parent, and at the same time inherit directly from his father. If his father left property he would have the right to inherit it. But the sole question is as to the right to inherit the property of his grandfather and adopting father in a double capacity, as his son and as his grandson. He claims the right to inherit, under the first part of the section20 as his son, and under the last clause, because he is included among his 'kindred.' When the Legislature provided that no person should, by being adopted, lose his right to inherit from his natural parents or kindred, we do not think it understood or intended that 'kindred' should include the adopting parent."

The Courts of Pennsylvania on this question held the same way as do those of Massachusetts. In the course of its opinion the Court says: "The adopted child does not stand on the full footing of an actual child, even as to his legal rights. He has only such rights as the statute clearly gives him. * * * The Act of 188722 intended to put the adopted child on the same footing as actual children, if such there should be, but not on any more favorable footing. This would be the natural and presumed intent, but it is put beyond question by the proviso. Having enacted that the adopted child shall have 'all the rights of a child and heir,' the framers of the Act, apparently out of caution, lest the word 'heir' should seem to give a preference over other children, added the proviso that he should inherit 'only as one of them.' The Act did not apparently contemplate, certainly did

[blocks in formation]

not expressly provide, for the case of an adoption of a grandchild, but the plain intent that the status of the adopted child should be equal, but not superior, to that of the others, is enough to settle the question." So the Court held, that the adopted grandchild inherited as a child only, and not in a double capacity as child and grandchild.

Inheritance From Kindred of Adopting Parent.-In Wisconsin, a husband and wife. adopted a child under the laws of that State, and then moved to Illinois. In the latter State the wife died and thereafter the husband married again, and a daughter was born as issue of this marriage. The second wife died, and soon thereafter the husband died, leaving real estate in Illinois, and also leaving his last will, by which he gave all his property to the child of the second marriage. This child of the second marriage died, leaving no children, no brother or sister, but leaving one grandparent surviving her. The adopted child claimed the property as heir of her adopted sister. The Court held,23 that she was not the

heir of her adopted sister, for the reason that the Illinois law expressly prohibited an adopted child from inheriting property from the lineal or collateral kindred of its

adopting parents by right of representa

tion.24

The Wisconsin statute, where the adopted child acquired its status, did not prohibit it from inheriting from the lineal or collateral kindred of its parents, and the Court ruled that the rights of inheritance acquired by the adopted child under the law of Wisconsin will be recognized and upheld in Illinois, only so far as they are not inconsistent with the law of descent of Illinois, so that if by the Illinois statute of adoption the adopted child could not take

under the statute of descent of Illinois, then she could not take, no matter what might be the law of Wisconsin in respect to the rights of an adopted child.

[blocks in formation]

In Pennsylvania an adopting father died. before his brother, who died intestate. The Court held that the adopted child could not inherit a share in the estate of the intestate.25 The Court said: "As he is not of the blood of this intestate he cannot inherit from him under the intestate act of 1833; but it is contended that under the statute providing for the adoption of children he can. The seventh section of the act of May 4, 1855, which was amended by the act of May 19, 1887, Stewart's Purdon, page 279, pl. 1, only as to the necessary parties to the adoption proceedings, provided that an adopted child should have all the rights of a child and heir of such adopting parent. It does not, however, give such a child the rights of a nephew or niece, and of a collateral heir of the brothers and sisters of the adopting parent; and if it had the intention to change the intestate acts so that intestate's estate should descend without his consent to a person not of his blood, surely such an intention should have been clearly expressed. It is suggested that if the adopted child has all the rights of a child, it necessarily has the rights of inheritance, as a natural child of the adopting parents. If so the child could inherit as such from the natural children, and it would not have been necessary to provide in the concluding part of the section that the adopted child and other children of the adopting parent should 'inherit from and through each other as if all had been the lawful children of the same parent.' The obvious purpose of the act was to provide for the adoption of children, and to amend the intestate laws only so that the adopted child could inherit from the adopting parent and his children."

In Tennessee, a person died, leaving as survivors a daughter, a grandson, and an adopted son. Afterwards, the grandson died intestate, and the Court held,20 that

the adopted uncle was not entitled to inherit from the grandson, but that the aunt in blood took all of the estate as distributee of the intestate. The Court said: "It is contended that the legal status of the adopted child is the same as that of the child born in lawful wedlock, and that as a consequence the same rights as heir and next of kin exist in the one case as in the other -not only as to the parent, but as to all other persons. This position is sound in part only. So far as the parental obligations and the estate of the adopting parent are concerned, it is well taken, but beyond that it is not tenable. As to the estates of other persons than the adopting parent, the law of adoption fixes no right in the adopted child. It is only as to the adopting parent that the adopted child is made 'heir or next of kin' by the statute." By the adoption, the adopted son, became vested with all the rights of heir and next of kin of the adopting father, but he was not thereby made the heir and next of kin of the children born to the adopting father.

In Kansas it has been held,27 that an adopted child cannot inherit the share which her adopting father would have taken in the estate of his brother, had he survived his brother. The Kansas Court bases its decision on the statute of Illinois, where the adoption took place, and the status of the adopted child was fixed, for it says that "the language of the statute of Illinois *** seems to restrict the right of inheritance given to the adopted child to an inheritance from the parent only." The laws of Illinois's say that the relation between the adopting parent and child shall be as to their rights and liabilities, the same as if the relation of parent and child existed between them, except that the adopting father or mother shall never inherit from the child; but to all other persons the adopted child stands related as if no such act of adoption had taken place.

[blocks in formation]
[ocr errors]

In Michigan the Court held,29 that an adopted child cannot share in the distribution of the estate of the brother of its adopting mother, that is, cannot inherit through the deceased adopting mother, her share in her brother's estate. The Court said: "The power to inherit from the adopting mother is given by the statute, and that is as far as the statute goes. It does not say that she shall be the heir of the adopting mother's kindred, nor that she may inherit from them by the right of representation of the adopting mother."

The same rule is followed in Missouri. A bachelor died intestate, leaving surviving him a brother, and nephews and nieces. A A brother predeceased him, leaving one son and an heir by adoption. This adopted child claimed that she was an heir of her

adoptive father's brother. After a very full discussion of the subject, Judge Lamm says: "The doctrine to be gathered from the foregoing cases is announced to be, in effect, to deny the right of the adopted child to succeed to the estate of any member of the adopting family, other than the adopting parent, and that such adopted child does not succeed to the estate of ancestors or collateral kin of the adopting parent, nor to the estate of children born to the adopting parent.30

Inheriting From Adopted Child.-In Iowa it is held,31 that under the general inheritance statutes of the State the heirs of an adopting parent, upon the death of an adopted child, unmarried and without issue, would not inherit the property of such child, but that the same would pass to the natural parents of the child. The Court said: "The attempt to introduce a peculiar rule of descent for property acquired by the adopted child from the adopting parents might seem, in particular cases, to be more in accordance with our general notions of natural justice. Such rule would, however, not only be without statutory authority, but in many cases would unnecessarily lead to the

(29) Van Derlyn v. Mack, 137 Mich. 146.
(30) Hockaday v. Lynn, 200 Mo. 456.
(31) Baker v. Clowser, 158 Iowa 156.-

greatest confusion in its application. Suppose the adopted child should for many years outlive its adopting parent and also its natural parent, having by inheritance derived property from each, and having also accummulated property of its own. How could any court undertake to determine what portion of the estate left by such child goes to heirs in the line of the adopting parent and what portion should go to heirs in the natural line?"

In Missouri it is held,32 that the natural child of an adopted child shares in the distribution of the estate of the adopting parent dying intestate, the adopted child having predeceased the adopting parent. Judge Williams, speaking for the Court, quotes from Ruling Case Law,33 as follows: "If an adopted child dies during the life of its adopting parent, leaving children, such children are for most, if not for all, purposes, regarded as natural grandchildren of the adopting parent, and are entitled to represent their parent and to receive from the estate of his adopting parent what he would have been entitled to receive had he lived until after such parent's death." In the same case, Judge Williams says that the natural child of the adopted child, does not in a proper sense, take under the deed of adoption. The deed of adoption created the status of an inheriting child in the adopted child and the right of the child. of the adopted child to represent his father is given by the statute of descents, by the use of the words "or their descendants." In a much earlier case, it was held that on the death of an adopted child his estate will go to his relations by blood, and not to those by adoption; and this even where the estate which so descends has been derived from the adoptive parent.

34

[blocks in formation]
[blocks in formation]

39

In Indiana it is held, that the adopting parent or his or her heirs inherit from the adopted child all property, real and personal, that came to the adopted child by gift, devise, or descent from the adopting parent or parents, whenever he, she or they would have inherited such property if the adopted child had been the natural child of the adopting father or mother, to the entire exclusion of the natural heirs of such child.

Inheriting Through Adopted Child.-In Vermont an intestate died, leaving a wife surviving him and several brothers and sisters and an adopted daughter. During the life of the intestate the adopted daughter died, leaving surviving her a son. The Court held, that the son of the adopted daughter, deceased, was entitled to inherit through her by right of representation a share in the adoptive father's intestate esThe question came up for the first time in the Vermont Court (1912) and the

tate.

[blocks in formation]

Court reviewed the authority exhaustively, and said that as the doctrine of adoption was unknown to the common law, but was recognized by the civil law, it was proper to look to the civil law for the proper definition of the term and in aid of the interpretation of the provisions of the Vermont statute on the subject of adoption. The Court quoted from the Vidal Case11 as follows: "Under the Roman law, the person adopted entered into the family, and came under the power of the person adopting him. And the effect was such that the person adopted stood not only himself in relation of child to him adopting, but his children became the grandchildren of such person."

This same question came up for the first time in the Court of Appeals of Kentucky in 1911, before the Walworth Case, supra, was decided, and the Kentucky Court held, that the child of the adopted child could not inherit the share which his foster mother would have received, if living, from the estate of her mother, who died intestate. The Kentucky case is very brief, and cites two Kentucky cases,43 where it is held that the adopted child is made capable of inheriting from its adopting parents, as if he had been born to them and were in fact their child. But the Court said: "But 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 those who have adopted him." The Court cites other cases11 as expressly holding 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, continuing, the

[blocks in formation]
« ÀÌÀü°è¼Ó »