Johnston, John D., Jr.

English

Duke Law Scholarship Repository

ADOPTEES' RIGHT TO SHARE IN TESTAMENTARYGIFTS AS "CHILDREN"W HERE A WILL CONTAINS A GIFT to the "children" of a named per-son, a question of construction arises with regard to the right of anadopted child to participate in the distribution.' Where recognized,this right has been upheld on either or both of two grounds: (a) thatthe testator intended that he share in the gift,2 or (b) that adoptionlegally vested him with the status of a natural child.3  Accordingly,where such intent is not readily inferable, the issue generally turns onthe court's interpretation of the applicable adoption statute.4'See generally 3 PACE, WILLS § 1023 ( 3 d ed. 1941 ) 5 3 POWELL, REAL PROPERTY§ 357 (195z) 5 Oler, Construction of Private Instruments Where Adopted Children AreConcerned, 43 MICH. L. REV. 705, 711 et. seq. (1945); and Notes, 70 A.L.R. 6zx(0931), 144 A.L.R. 670 (1943).' Fundamental to the law of wills is the proposition that the intent of the testatorgoverns the distribution of his estate, unless contrary to law or public policy. ATKIN-SON, WILLS § 146 (2d ed. 1953); 2 PAGE, WILLS, § 919 ( 3 d ed. 1941). Where hisintent can be ascertained from the language of the will itself, the will is controllingand no evidence is admissible in court to contradict or vary its terms. Fuller v. Nazal,259 Ala. 598, 67 So.2d 8o6 (1953)5 Lytle v. Guilliams, 241 Iowa 523, 41 N.W.zd668 (1951)5 Dennis v. Omaha Nat'l Bank, 153 Neb. 865, 46 N.W.2d 6o6 (95 1)SCannon v. Cannon, 225 N.C. 61:, 36 S.E.2d 17 (x945)5 Industrial Trust Co. v.Davies, 74 R.I. 36, 58 A.2d 399 (1948). Where the will contains a latent ambiguity,however, as to the property devised or the object of the testator's bounty, it is neces-sary for the court construing the will to place itself as nearly as possible in the positionof the testator at the time he executed the will in order to determine his probableintent from a survey of the facts and circumstances which then existed and wereknown to him. Butts v. Trust Co. of Georgia, 2o9 Ga. 787, 75 S.E.zd 745 (1953)Davidson v. Davidson, 2 Ill.2d 197, 117 N.E.zd 769 (954)5 Marks v. Thomas, 238N.C. 544, 78 S.E.2d 340 (1953) ; Noble v. Noble, 205 Okla. 91, 235 P.2d 670(1951). 2 PAGE, WILLS § 920 ( 3d ed. 1941). A testator is presumed to know the lawin effect at the time the will was executed, and to have drawn the instrument in con-templation thereof. Cleveland Clinic Foundation v. Humphrys, 97 F.zd 849 (6thCir. 1938); In re Heard's Estate, 107 Cal.App.2d 225, 236 P.zd 81o (1951), Bar-field v. Aiken, 2o9 Ga. 483, 74 S.E.zd ioo (1953); Nelligan v. Long, 320 Mass. 439,70 N.E.2d 175 (946); Leeper v. Leeper, 347 Mo. 442, 147 S.W.2d 667 (1941);In re Tousey's Will, 260 Wis. 1SO, 50 N.W.2d 454 (95) 2 PACE, WILLS § 925 ( 3ded. 1941).3 See, e.g., In re Holden's Trust, 207 Minn. 211, z9 N.W. 104 (1940); Haver v.Herder, 96 N.J. Eq. 554, 126 Ad. 661 (1924); In re Upjohn's Will, 304 N.Y. 366,107 N.E.2d 492 (1952).'Adoption is purely statutory. In re Palmer, 129 Fla. 630, 176 So. 537 (937)In re Jaren's Adoption, 223 Minn. 561, 27 N.W.2d 656 (1947); Eggleston v.Landrum, 2io Miss. 645, 50 So.2d 364 (1951); Betz v. Horr, 276 N.Y. 83, 11This is the problem which recently confronted the Supreme Courtof North Carolina in Bradford v. Johnson.' There, the testator haddevised his property in separate trusts for the benefit of his twelvenephews and nieces during their lives. The will further provided thatwhen a nephew or niece should die, the trust for his benefit should ter-minate and the corpus be divided per capita among the "children" of allthe nephews and nieces. One of the nephews having died, the executorbrought an action for a declaratory judgment to determine both therights of a child adopted by another nephew fourteen years prior tothe death of the testator and the rights of any child who might laterbe adopted by any of the nephews and nieces.6 The lower court heldthat, in both instances, the child would be entitled to share in thedistribution of trust corpus. The supreme court, however, observedthat the proper test of the adoptees' rights here was the intent of thetestator-and that the adoption statute was irrelevant as it purportedonly to establish the right of adopted children to inherit through andfrom their adoptive parents.7 Accordingly, it reversed as to any childadopted after the testator's death, holding that the testator could nothave contemplated that such a person should take; but it affirmed as tothe child adopted before the testator's death, recognizing a presumptionin his favor since the testator knew of his adoption in time to excludehim from the will but did not do so.Early adoption statutes, with some exceptions,8 purported to estab-N.E.2d 548 (1937); Wilson v. Anderson, 232 N.C. 212, 59 S.E.zd 836 (1950)5In re Frazier, x8o Ore. 232, 177 P.2d 254 (1947). Since a testator is presumed toknow the law, an argument can be made that the adoption statute controls the meaningof the word "child" as ambiguously used in the will. See text at notd z6 infra. Theeffect of the statute on a will is a matter for court interpretation. See Oler, op. cit.supra note x, at 715 et. seq.'237 N.C. 572, 75 S.E.zd 632 (-953).'3The right of a child adopted by a grandniece to take her share by representationwas also in issue. As to this child the question was decided in the negative, as the willprovided that the "issue" of any deceased parent should represent that parent per stirpes.Id. at 581, 75 S.E.2d at 638. The question of whether adopted children are "issue"is outside the scope of this Note.7237 N.C. 572, 578, 75 S.E.2d 632, 636 (1953). See N.C. GEN. STAT. § 48-23(Supp. 1953): "The final order [of adoption] forthwith shall establish the relationshipof parent and child between the petitioners and the child, and, from the date of thesigning of the final order of adoption, the child shall be entitled to inherit real andpersonal property from the adoptive parents in accordance with the statutes of descentand distribution [N.C. GEN. STAT. §§ 29-149 (1o), z9-1(14) (1950)]2'8E.g., AerS AND RESOLVES OF MASS. c. 310 (1871), first enacted in iSx5, statedthat an adopted child was the equivalent of a natural legitimate child in all instancesexcept two which are not relevant here. ACmS AND RESOLVES OF MASS. C. 213, § 9(1876), however, limited the effect of adoption by allowing the adoptee to take if the1955] NOTESDUKE BAR JOURNALlish the parent-child relationship only as between the parties to theadoption. These statutes gave an adopted child the right of inheritancefrom his adoptive parents alone and were construed not to accord himthe right of inheritance from their ancestors.10 By the same token, hewas held not to have been conferred with the right to take as a "child"of his adoptive parents under the wills of other persons." Later re-visions of the adoption statutes in some jurisdictions, however, havetended to liberalize the effect of adoption and do away with the vestigialdistinctions between adopted and natural children.' 2 Thus, many stat-utes now proclaim that adopted children are to be deemed natural,legitimate children "for all legal consequences,"' 3 "for every pur-pose,' 14 or "for all intents and purposes."' Others are more specificand expressly include as an incident of adoption the right to share as"children" under class gifts in wills.10The prevailing view seems to be that an adoption statute can haveno effect on the construction of a will.' 7 Instead, a subjective intent hastestator was the adoptive parent, but established a presumption against the adoptee wherethe testator was not his parent. Tirrell v. Bacon, 3 Fed. 62 (C.C. Mass. M88o).9E.g., CAL. CIv. CODE § 228 (Deering 1949); CONN. GEN. STAT. § 6869 (1949);D.C. CODE § x6-o05 (1940); IND. STAT. ANN. § 3-121 (Burns Replacement 1946);ME. REV. STAT. c. 145, § 38 (I944); MICH CoMP. L. § 27.3178 (1948) ; N.C. GEN.STAT. § 48-23 (Supp. 1953) i W.VA. CODE § 4759 (Michie 1949). See generally Oler,op. cit. supra note i, at 715 et. seq.1'In re Stewart's Estate, 30 Cal.App. 594, 86 P.zd 1071 (1939); Brun-ton v. Internat'l Trust Co., 114 Colo. 298, 164 P.zd 472 (945) ; Woods v. Crump,283 Ky. 675, 142 S.W.2d 68o (1940); Allen v. Nickerson, 293 Mass. 136, 199 N.E.482 (1936)5 Crawford v. Arends, 351 Mo. ioo, 176 S.W.zd I(1943); I1t reHodges' Will, 294 N.Y. 58, 6o N.E.zd 540 (i945); Grimes v. Grimes, 207 N.C.778, 178 S.E. ;73 (1935)."In general, there is a presumption that the testator intended that his own adopteestake as "children," but not children adopted by others. See Brunton v. Inter-nat'l Trust Co., 114 Colo. 298, 164 P.zd 472 (945); Brookins v. Citizens & South-ern Nat'l Bank, 205 Ga. 1z8, 52 S.E.2d 461 (1949); McLeod v. Andrews, 303 Ky. 46,196 S.W.2d 473 (946); In re Chapple's Estate, 338 Mich. 246, 61 N.W.zd 37(953)5 In re Yates' Estate, z8s Pa. 178, 1z6 AtI. 254 (1924).12 See, e.g., 1z DEL. CODE ANN. §§ 919-20 (1953); IOWA CODE ANN. § 6oo.6(1950); MINN. STAT. ANN. § 259.07 (947); N.J. STAT. ANN. § 9: 3-9 (1953).13Ky. REV. STAT. § 199.530(2) (953); N.D. REv. CODE § 14-1113 (1943).:"Mo. STAT. ANN. § 453.090 (Vernon 1952), TEx. Civ. STAT. ANN. art. 46(a),§ 9 (Vernon i947)."ALA. CODE tit. 27, § 5 (1940); COLO. REV. STAT. c. 4, § 1 (953); OHIo REV.CODE § 3107.13 (954); R.I. GEN. LAWs ANN. c. 420, § 6 (1938); Wis. STAT. §322.07 (947)."'GA.CODEANN.§ 7 4 - 4 14 (Supp. 195;) ILL. REV. STAT. c. 4, art. 4, § 1 (1951);MD. CODE ANN. art. i6, § 86 (Flack i95i); N.Y. Dom. REL. LAW § i15 (1954) JPA. STAT. ANN. tit. 20, § 18o.14 (Purdon 195o)."7Noreen v. Sparks, 103 F. Supp. 588 (D.D.C. 1952), Russell v. Russell, 84 Ala.[Vol. 5s: 6obeen "found," or ascribed to the testator, by the court, without refer-ence to the statute, and this has commonly been presumed to have beenthat the testator did not regard children adopted by others as their"children" for this purpose.18  It would appear, however; that courtscan confidently adhere to this view only in those jurisdictions whoseadoption statutes do not clearly purport to elevate adopted childrenin all respects to the status of natural children' -- and their numberis fast dwindling. Eleven such states have recently revised their adop-tion statutes so as to equate the legal status of the adopted child moreclosely with that of the natural child;2° and while these revisionshave, thus far, been held only to have no retroactive effect,2 there havebeen indications that courts will effectuate their underlying policy inresolving ambiguities in future wills.22Even absent these liberalizing revisions, however, courts in sev-eral other states have taken the view that, since the testator is presumedto have known the law, the adoption statute in effect at the time the will48, 3 So. 900 (1888); In re Pierce's Estate, 32 Cal.zd 265, 196 P.zd 1 (1948) ;Brunton v. Internat'l Trust Co., 114 Colo. 298, 164 P.zd 472 (z945); Brookins v.Citizens & Southern Nat'l Bank, zo5 Ga. 128, 52 S.E.zd 461 (1949); Blackford v.Barnhill, rx 9 Ind.App. 257, 84 N.E.zd 64 (1949) ; Mesecher v. Lier, 241 Iowa 818,43 N.W.zd 149 (195o); Savells v. Brown's Guardian, 187 Ky. 134, 718 S.W. 46z(192o) i In re Woodcock, 103 Me. 214, 68 Atl. 8z (1907); Eureka Life Ins. Co. v.Geis, 1z Md. 196, 88 Ati. 158 (1913) In re Chapple's Estate, 338 Mich. 246, 61N.W.2d 37 (x953); Melek v. Curators of Univ. of Missouri, 223 Mo.AIp 572, 250S.W. 614 (1923) 5 In re Yates' Estate, z8, Pa. 178, 1z6 Ati. 254 (1924); Rhode Is-land Hospital Trust Co. v. Sack, 79 R.I. 493, 90 A.2d 436 (1952); Harle v. Harle,1o9 Tex. 214, 204 S.W. 317 (igiS); Lichter v. Thiers, 139 Wis. 481, iz2 N.W.153 (1909).a See cases cited note i i supra.10 No case has been found in which a court adhered to this view in the face of aliberal adoption statute." Kentucky has the "for all legal consequences" statute (note 13 supra). Alabama,Colorado, Rhode Island, and Wisconsin have the "all intents and purposes" type (note15 supra). Missouri and Texas have the "for every purpose" type (note 14 supra).Georgia, Maryland, and Pennsylvania statutes contain the express recognition of theright to take under a will as a "child" (note 16 supra). Iowa Code Ann. § 6oo.6(1946), states that "upon the entering of [final adoption] decree, the rights, duties,and relationships between the child and parents by adoption shall be the same thatexist between parents and child by lawful birth. . ....2' Copeland v. State Bank, 300 Ky. 432, 188 S.W.zd 1017 (1945); Gutman v.Safe Deposit & Trust Co. of Baltimore, 198 Md. 39, 81 A.2d 207 (1951) ; In re Corr'sEstate, 338 Pa. 337, iz A.zd 76 (1940)..2Barflield v. Aiken, 2o9 Ga. 483, 74 S.E.2d oo (i953) (reiterating presumptionthat testator intends his property to go where law carries it) ; Leeper v. Leeper, 347Mo. 456, 147 S.W.2d 667 (1941) ("children" defined by statute in force at time in-strument was executed) ; cf. Russell v. Russell, 84 Ala. 48, 3 So. 900 (x888) (narrowstatute in force determined whether adoptee was a "child").19551 NO TESDUKE BAR JOURNAL [Vol. s: 6owas executed is a circumstance bearing on his intent, although of nogreater significance than any other circumstance 2 3 The fact that thetestator was a stranger to the adoption or that it occurred after hisdeath, however, has generally been held to negate any inferences of in-tent which may arise from the statute.24A few other jurisdictions, on the other hand, have now taken theview that where the statute is broad enough to give adopted childrenthe full legal status of natural children," it controls in the absence of aclear indication of contrary intent by the testator.2" This view, whichcreates a presumption that the testator intended that children adoptedby others should be regarded as "children" for this purpose, is exactlyantithetical to the traditional view.27 Paradoxically, however, despite astrong case to the contrary, 8 this rule has generally been held inappli-cable where the testator did not know of the adoption or where it oc-curred after his death.29The decision in the Bradford case as to any child adopted after thetestator's death would therefore seem to be in accord with currentauthority;3" the decision as to the child adopted within the testator'slifetime, however, is quite advanced and liberal and represents at least23Morgan v. Keefe, 135 Conn. 254, 63 A.zd 148 (1948)5 Wheeling Dollar Sav-ing and Trust Co. v. Stewart, 178 W.Va. 703, 37 S.E.2d 563 (1946). This view isalso adhered to in several jurisdictions which have more liberal statutes. See, e.g.,Hall v. Crandall, 25 Del.Ch. 339, 2o A.2d 545 (1941); Munie v. Gruenewald, 289Ill. 468, 124 N.E. 6o5 (191) ; Third Nat'l Bank v. Davidson, 157 Ohio St. 355,1o5 N.E.2d 573 (952)."'See, e.g., Belfield v. Findlay, 389 I1. 526, 6o N.E.zd 403 (1945) and casescited in note 23 supra."See notes 12-16 supra and accompanying text.2In re Holden's Trust, 207 Minn. 211, 291 N.W. 1o4 (194o); Haver v.Herder, 96 N.J. Eq. 554, iz6 Atl. 661 (1924); In re Fisler's Estate, I31 N.J. Eq.310, 25 A.2d 265 (1942)5 In re Upjohn's Will, 304 N.Y. 366, 107 N.E.2d 492(1952). Accord, Leeper v. Leeper, 347 Mo. 456, 147 S.W.2d 667 (1941); Hoellingerv. Molzhon, 77 N.D. xo8, 41 N.W.2d 217 (1950)." I.e., that the statute has no effect on the construction of the will and that thetestator is presumed not to intend children adopted by others to take as their "children."'See note i i supra and accompanying text." See In re Holden's Trust, 207 Minn. 211, 291 N.W. 1o4 (1940)." See In re Fisler's Estate, 131 N.J. Eq. 310, 25 A.2d 265 (1942); Ahlemeyer v.Miller, ioz N.J.L. 54, 131 Atl. 54 (1925); In re Hall's Will, 127 N.Y.S.2d 445(19s4).3°See, e.g., Comer v. Comer, 195 Ga. 79, 23 S.E.zd 420 (1942); Belfield v.Findlay, 389 Ill. 526, 6o N.E.2d 403 (945); Sanders v. Adams, 278 Ky. 24, 128S.W.2d 223 (1939); In re Corr's Estate, 338 Pa. 337, 12 A.zd 76 (1940) ; Cochranv. Cochran, 43 Tex. Civ. App. 259, 95 S.W. 731 (29o6); and cases cited in notes23 and 29 supra.a partial abandonment of the long-held traditional position."- The sig-nificance of this shift is heightened by the fact that North Carolina hasfollowed the recent liberal trend to a point beyond that reached byother states under their more modern statutes"2 although its statute wasexpressly held by the court to be too limited to conduce to this end.However, where the testator either did not know of the adoption or didnot have time in which to change his will, the implication seems to bethat no presumption of testamentary intent will be created in favor ofan adopted child 33 Accordingly, in order to protect the advance madeby the Bradford decision and further extend it, it would appear to bedesirable to enact legislation which would unequivocally define therights of adopted children under testamentary dispositions.34JOHN D. JOHNSTON, JR."In Smyth v. McKissick, 222 N.C. 644, 24 S.E.2d 62i (19z2), the court held,on substantially similar facts, that the evidence adduced on behalf of the adopted child(i.e., that the testator knew and approved of the adoption and treated the natural andadopted children alike) was sufficient to overcome the presumption against him and toestablish an intent on the part of the testator that he should take. The Bradford case,on the other hand, holds that the presumption is in favor of the adopted child.". The Bradford decision is the only one to recognize such a presumption in the faceof a narrow statute (see cases cited in note 17 supra). The rule is also more liberalthan that laid down in the cases holding that a broad statute is only a circumstance(see note 23 supra)."In Wachovia Bank v. Green, 239 N.C. 612, 8o S.E.2d 771 (1954), where thechildren were adopted after the testator's death, the court held that the Bradford ruledid not apply and found in the will an intent to exclude adopted children."It is understood that legislation equating the status of natural and adopted chil-dren to the extent of including the right to take as "children" under class gifts of willsis now before the North Carolina General Statutes Commission.1955] NOTES

Adoptees’ Right to Share in Testamentary Gifts as “Children”

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Adoptees’ Right to Share in Testamentary Gifts as “Children”

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