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Elliott), and admits that but for the previ- was, the lawful child of the adopting parous analogous holdings of the Iowa Court ent, and was a child within the meaning of a different conclusion might be reached. the statute above set out, and that the An adopted child may inherit from its nat- widow was not entitled to one-half of the ural relatives and also from its adopting land. parents. This was the rule of the Civil
Inheritance in Two-fold Capacity as There is no reason why a child Child and Grandchild. A testator, leaving that has been adopted by others should be
his property in trust, provided that the cut off from inheriting from its own rela
trustees, upon the death of all the testator's tives.1+ Because of the adoption the child
children, “shall distribute such trust propacquires certain additional rights, but there
erty remaining in their hands to such of is nothing in the act of adoption, which in
my grandchildren as shall then be living, in and of itself takes away other existing equal shares, so that none shall take by reprights, or such as may subsequently accrue, resentative, but all per capita."18 The tesexcept such as is by statute provided.15 By
tator adopted one of his grandchildren as the act of adoption the child becomes in his own child. This adopted child (in fact, a legal sense the child of the adopting par
a grandchild) died during the life of the ent. Nevertheless, he is the child of his
last surviving child of the testator, leaving natural parents, and the act of adoption
a son surviving him. This son claimed that does not deprive him of the statutory right
as the testator had adopted his father as of inheriting from his natural parents, .un
his own son, he thereby became a grandson less there is a statute which in terms so
of the testator, and consequently entitled provides. Where a father adopted two
to a grandson's share of the testator's eschildren of his daughter, and afterwards
tate. But in his will the testator said that died, leaving no will, the children so adopt- having adopted his grandchild as his own ed inherited from him as his own children,
child, it was not his intention that he should and also inherited the share of their de
share in his estate as one of his children, ceased mother. The law in Missouri is, 16
“but that he should take under my will that when the husband shall die without only the share of a grandchild.” The Court any child or other descendants in being held that under this clause of the will, the capable of inheriting, his widow shall be
son of the adopted child was not entitled entitled to one-half of the real and personal to any part of the testator's estate, on the estate belonging to the husband at the time ground that the testator had disregarded of his death, absolutely, subject to the pay- the adoption, so far as the inheritance of ment of the husband's debts. A husband
his adopted child was concerned, and had and wife adopted a child and the wife died.
provided in his will that he should only take Afterwards the husband married again. He the share of a grandchild. died testate, having devised land to his
In a Massachusetts caselo a person died adopted son. His widow claimed half of
intestate, leaving as his heirs at law and his estate, on the ground that her husband
distributes five daughters and a grandson, left no child, within the meaning of the
the only child of a deceased son. After statute. But the Court held,17 that for all
the death of his son, the intestate adopted the purposes of inheriting from the adopt- | his grandson as his child. This adopted ing parent, the adopted child became, and
son claimed one-seventh part of the estate
of the intestate as an adopted son, and also (13) Sandar's Justinian 105. (14) Humphries v. Davis, 100 Ind. 274.
one-seventh part by right of representation Wagner v. Varner, 50 lowa 532. (16) R. S. Mo. 1919. sec. 32.
(18) Clarke V. Rathbone, 221 Mass. 574. (17) Moran v. Stewart, 122 Mo. 295.
(19) Delano v. Bruerton, 148 Mass. 619.
of his father. The Court says that “the not expressly provide, for the case of an same person cannot, as to the legal descend- adoption of a grandchild, but the plain inants of his adopting parents, stand in the tent that the status of the adopted child position of his son and at the same time should be equal, but not superior, to that claim to inherit a portion of his property of the others, is enough to settle the quesas his grandson. It is to be continually tion." So the Court held, that the adopted borne in mind that we are not dealing with grandchild inherited as a child only, and not the question whether Henry Curtis can in- in a double capacity as child and grandherit as a son from his adopting parent, and child. at the same time inherit directly from his father. If his father left property he
Inheritance From Kindred of Adopting would have the right to inherit it. But the
Parent.In Wisconsin, a husband and wife sole question is as to the right to inherit adopted a child under the laws of that the property of his grandfather and adopt-State, and then moved to Illinois. In the
latter State the wife died and thereafter ing father in a double capacity, as his son and as his grandson. He claims the right the husband married again, and a daughter to inherit, under the first part of the sec
was born as issue of this marriage. The
second wife died, and soon thereafter the tion?' as his son, and under the last clause, because he is included among his ‘kindred.'
husband died, leaving real estate in Illinois, When the Legislature provided that no per
and also leaving his last will, by which he son should, by being adopted, lose his right gave all his property to the child of the to inherit from his natural parents or kin
second marriage. This child of the second dred, we do not think it understood or in marriage died, leaving no children, no
brother or sister, but leaving one grandpartended that ‘kindred' should include the adopting parent."
ent surviving her. The adopted child claimThe Courts of Pennsylvania on this ques
ed the property as heir of her adopted sis
ter. The Court held, 23 that she was not the tion held the same way as do those of Massachusetts.21 In the course of its opin
heir of her adopted sister, for the reason
that the Illinois law expressly prohibited ion the Court says: “The adopted child does not stand on the full footing of an
an adopted child from inheriting property
from the lineal or collateral kindred of its actual child, even as to his legal rights. He has only such rights as the statute clearly adopting parents by right of representa
tion.24 The Wisconsin statute, where the gives him. * ** The Act of 188722 intended to put the adopted child on the same foot adopted child acquired its status, did not ing as actual children, if such there should
prohibit it from inheriting from the lineal
or collateral kindred of its parents, and the he, but not on any more favorable footing. This would be the natural and presumed
Court ruled that the rights of inheritance intent, but it is put beyond question by the acquired by the adopted child under the
law of Wisconsin will be recognized and proviso. Having enacted that the adopted
upheld in Illinois, only so far as they are child shall have all the rights of a child
not inconsistent with the law of descent of and heir,' the framers of the Act, apparent
Illinois, so that if by the Illinois statute of ly out of caution, lest the word 'heir'
adoption the adopted child could not take s'ould seem to give a preference over other
under the statute of descent of Illinois, then children, added the proviso that he should
she could not take, no matter what might inherit ‘only as one of them.' The Act did
be the law of Wisconsin in respect to the Tot apparently contemplate, certainly did
rights of an adopted child.
(20) (21) 402)
Pub. Stats. C. 148, sec. 7.
(23) Keegan v. Geraghty, 101 III. 26.
In Pennsylvania an adopting father died the adopted uncle was not entitled to inherit before his brother, who died intestate. The from the grandson, but that the aunt in Court held that the adopted child could not blood took all of the estate as distributee of inherit a share in the estate of the intes- the intestate. The Court said: “It is contate.25 The Court said: “As he is not of tended that the legal status of the adopted the blood of this intestate he cannot inherit child is the same as that of the child born from him under the intestate act of 1833 ; in lawful wedlock, and that as a consebut it is contended that under the statute quence the same rights as heir and next providing for the adoption of children he of kin exist in the one case as in the other can. The seventh section of the act of May -not only as to the parent, but as to all 4, 1855, which was amended by the act of other persons. This position is sound in May 19, 1887, Stewart's Purdon, page 279, part only.
part only. So far as the parental obligapl. 1, only as to the necessary parties to the tions and the estate of the adopting parent adoption proceedings, provided that an are concerned, it is well taken, but beyond adopted child should have all the rights of a that it is not tenable. As to the estates of child and heir of such adopting parent. It other persons than the adopting parent, the does not, however, give such a child the law of adoption fixes no right in the adoptrights of a nephew or niece, and of a col- ed child. It is only as to the adopting parlateral heir of the brothers and sisters of ent that the adopted child is made 'heir or the adopting parent; and if it had the in- next of kin' by the statute." By the adoptention to change the intestate acts so that tion, the adopted son, became vested with intestate's estate should descend without all the rights of heir and next of kin of his consent to a person not of his blood, the adopting father, but he was not thereby surely such an intention should have been made the heir and next of kin of the chilclearly expressed. It is suggested that if dren born to the adopting father. the adopted child has all the rights of a In Kansas it has been held,27 that an child, it necessarily has the rights of inher- adopted child cannot inherit the share itance, as a natural child of the adopting which her adopting father would have parents. If so the child could inherit as taken in the estate of his brother, had he such from the natural children, and it survived his brother. The Kansas Court would not have been necessary to provide bases its decision on the statute of Illinois, in the concluding part of the section that where the adoption took place, and the statthe adopted child and other children of the us of the adopted child was fixed, for it adopting parent should `inherit from and
says that "the language of the statute of through each other as if all had been the Illinois * * *
seems to restrict the right of lawful children of the same parent.' The inheritance given to the adopted child to an obvious purpose of the act was to provide inheritance from the parent only.” The for the adoption of children, and to amend laws of Illinois28 say that the relation bethe intestate laws only so that the adopted tween the adopting parent and child shall child could inherit from the adopting parent be as to their rights and liabilities, the same and his children."
as if the relation of parent and child existed
between them, except that the adopting In Tennessee, a person died, leaving as
father or mother shall never inherit from survivors a daughter, a grandson, and an
the child; but to all other persons the adoptadopted son. Afterwards, the grandson
ed child stands related as if no such act died intestate, and the Court held,26 that
of adoption had taken place.
(25) Burnett's Estate, 219 Pa. St. [99. (26) Helms v. Elliott, 89 Tenn. $46
(27) Boaz v. Swinney, 79 Kan. 332.
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.3
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. But in South Da- children became the grandchildren of such kota the contrary is the case, 38 and there person.” 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,3" that the adopting held,“ 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, 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
The Court cites other cases44 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
(11) 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 Rey. Stat. 1909, C. 4.
der v. Archer, 65 N. H. 214; Phillips v. McConCalhoun v. Bryant, 28 S. D. 266.
ica, 59 Ohio St. 1, and Sunderland's Estate, 60 (39) Davis v. Krug, 95 Ind. 1.