Johns, Richard B.

English

bepress Legal Repository

Parent and Child: Adoption Statutes: Right of Adopted Child to Inherit from Natural Parents

Marquette University Law School

Marquette Law ReviewVolume 19Issue 1 December 1934 Article 10Parent and Child: Adoption Statutes: Right ofAdopted Child to Inherit from Natural ParentsRichard B. JohnsFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationRichard B. Johns, Parent and Child: Adoption Statutes: Right of Adopted Child to Inherit from Natural Parents, 19 Marq. L. Rev. 50(1934).Available at: http://scholarship.law.marquette.edu/mulr/vol19/iss1/10THE MARQUETTE LAW REVIEW1934) ; Stanley et al. v. Peabody Coal Co., 5 F. Supp. 612 (S.D. Ill. 1933) (invok-ink Section 7a of N.I.R.A.). It is difficult to see how comparison between theNorris-LaGuardia Act and the Wisconsin Labor Code lends the Court authorityfor holding that section 268.18 is a declaration of labor's rights. The comparisoninstead tends to create doubt as to the constitutionality of the Wisconsin LaborCode. State bills modelled after the Norris-LaGuardia Act have been deemed un-constitutional. In re Opinion of the Justices, (N.H. 1933) 166 Atl. 640 (invadingrights of personal liberty and property under 14th Amendment, discriminatory,depriving Courts of inherent power) ; Opinion of the Justices, 275 Mass. 580,176 N.E. 649 (1931) (depriving persons of property without due process, limit-ing power of courts); cf. Thoe v. Chicago M. & St. Paul R. Co., 181 Wis. 456,195 N.W. 407 (1923) (legislative limitation on judicial powers of Circuit CourtsHeld unconstitutional) ; see John F. Jelke Co. v. Beck, 208 Wis. 650, 660, 242 N.W.576, 580 (1932) ; Legis. (1934) 9 Wis. L. Rev. 278, 284.Section 268.18, if a valid declaration of labor's rights, does not give rise toany greater rights than Section 7a. Cf. Section 109.04 (2a), Laws of Wisconsin(1933) Chap. 476 (The "7a" of the Wisconsin Act for Emergency Promotion ofIndustrial Recovery). Doubt as to the practical advantages accruing to laborunder Section 7a has been expressed. Comment (1934) 43 Yale L.J. 625; cf.Note (1933) 47 Harv. L. Rev. 85, 118; (1934) 47 Harv. L. Rev. 712. But in Wis-consin, as a result of Section 7a and its interpretation by the National LaborBoard, labor unionization has made more progress than in any other State.Lacher, Rule by Riot, The Iron Age (Oct. 1934); Kohler, Interpreting Section7a with Bricks, Nations Business (Nov. 1934). The interpretation in the instantcase placed on the words "interference, restraint or coercion" imputes to thema meaning favorable to labor. A refusal to bargain with the chosen representa-tive comes within their purview and being unlawful may be restrained. Trusteesof Wisconsin State Federation of Labor v. Simplex Shoe Mfg. Co., supra;Fryns v. Fair Lawn Fur Dressing Co., 114 N.J. Eq. 462, 168 Ati. 862 (1933).Contra: H. B. Rosenthal v. Ettlinger Co. v. Echlossberg, et al., 149 Misc. 210,266 N.Y.S. 762 (1933) (refusal to bargain is not a violation of Section 7a);cf. Durable Sportswear Co. v. Helliman, N.Y.L.J., Sept. 13, 1933, at 8 (Sup. Ct.).But the decision leaves open the question of whether refusing to accept the prof-ferred terms of the employee's chosen representative amounts to a refusal tobargain [discussed in McNatt, Organized Labor and the Recovery Act (1933-4)32 Mich. L. Rev. 780; cf. Sargent, Majority Rule in Collective Bargaining underSection 7 (a) 29 Ill. L. Rev. 275, 295 (1934)]. Should that question be decided inthe negative the injunction is worthless to labor. If it be decided in the affirma-tive, labor would virtually become the dictator.The Wisconsin court hopes that capital and labor will deal justly, fairly,and considerately with each other. This can not result from having the courtsvaguely, abstractly and broadly define and allegedly uphold the respective rightsof capital and labor. The solution seems to lie in the formation within an indus-try of codes created by the joint action of both parties and containing concreteand specific determinations of the relationships between them. Note (1933) 47Harv. L. Rev. 85,125.GERRIT D. FOSTER.PARENT AND CHILD-ADOPTION STATUTES-RIGHT OF ADOPTED CHILD TO IN-HERIT FROM NATURAL PARENTS.-A and B, natural children of an intestatedecedent, are claimants to the estate. B, when eight years of age, was legallyadopted by X. A claims as sole heir, contending that B has lost the status ofRECENT DECISIONSheir at law in the estate of the decedent by virtue of the adoption. Held, A andB are both heirs of the natural parent, adoption is not a bar to inheritance by B.In re Estate of Martha Sauer (Wis., 1934) 257 N.W. 28.Adoption, a practice unknown and unrecognized by the common law, hasexisted among the nations of continental Europe from time immemorial. See,Abney v. De Loach, 84 Ala. 393, 45 S.W. 750, 757, 759 (1888) ; Ross v. Ross, 129Mass. 243, 37 Am. Rep. 321, 325 (1880). It was widely practiced, not only byancient peoples with high standards of civilization, but by the semi-barbaricGerman tribes. See, Succession of Un forsake, 48 La. Ann. 546, 19 So. 602, 603(1896). Under the Roman Law the adopted child was permitted to inherit fromhis natural parents as well as from the parents by adoption. See, Sandar's "Insti-tutes of Justinian," Lib. I, Tit. XII, XIII, pp. 113-120 (1st Am. Ed., 1876).The adoption of children and strangers to the blood exists in this countryonly by virtue of statute. See, Albing v. Ward, 137 Mich. 352, 100 N.W. 609, 610(1904). In the absence of common law authority, the various states have in-vaded the legal systems of continental Europe in search of nuclei about whichto build, their statutory scheme. See, Power v. Haley, 85 Ky. 671, 4 S.W. 683,684 (1887). In most American jurisdictions the courts have recognized that thesestatutory schemes permitting the adopted child to take by descent from the par-ents by adoption have not affected his right to inherit from his natural parents.Patterson v. Browning, 146 Ind. 160, 44 N.E. 993 (1896); Wagner v. Varner, 50Ia. 532 (1879); contra, Young v. Bridges, (N.H., 1933), 165 At. 272.It was argued by the appellant in the principal case that the local legislaturehad by its adoption statute indicated that the adopted child was not to take byinheritance from its natural parents. Wis. Stats., (1933) § 322.07. The courtmet this contention by pointing out that the legislature had deleted from theoriginal bill before it a specific provision purporting to deny the right of theadopted child to take by inheritance from its natural parents. See, Asembly BillNo. 237A, Session of 1929. The court said that this indicated that the legislaturedid not mean that the adoption statute as eventually passed was to affect theright of inheritance from the natural parents. Had the legislature literally pur-ported to affect the right of inheritance from the natural parents there is reasonto believe that the Wisconsin court would have refused to uphold the statute.The court has suggested several times that such statutes interfering with thedescent of property are subversive to the beneficent purposes of adoption, thatthey are contrary to the natural and the common law, and are an unauthorizedinvasion by the legislature of the rights of the individual. See, Nunnemacher v.State, 129 Wis. 190, 108 N.W. 627 (1906) ; 'Estate of Bradley, 185 Wis. 393, 201N.W. 973 (1925). It is submitted, too, that an attempted enforcement of such astatute might raise a federal question under the due process clause of theFourteenth Amendment. See Meyer v. Nebraska, 262 U.S. 390, 43 Sup. Ct. 625,67 L.Ed. 1042 (1923); Pierce v. Society of Sisters, 268 U.S. 510, 45 Sup. Ct. 96,69 L.Ed. 1070 (1925).RicHARD B. JoHNs.TORTS-JOINT ENTERPRISE-IMPUTED NEGLGENE.-A husband and wife joint-ly owned an automobile and both were the named assureds in the liability policyissued thereon. In returning from a visit to their daughter's home and whilethe husband was driving, they. collided with a freight car belonging to the de-fendant railway company. In the plaintiff wife's action against the defendanthusband and the defendant railway company, the jury found the plaintiff freefrom contributory negligence and that she had assumed no risk; it found both de-

https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=3895&amp;context=mulr

Parent and Child: Adoption Statutes: Right of Adopted Child to Inherit from Natural Parents

Abstract

Similar works

Full text

Available Versions

bepress Legal Repository

Marquette University Law School