Selkowitz, Leonard

English

University of Miami School of Law

University of Miami Law SchoolInstitutional RepositoryUniversity of Miami Law Review10-1-1956Adoption -- Right to Inherit Upon ReadoptionLeonard SelkowitzFollow this and additional works at: http://repository.law.miami.edu/umlrThis Case Noted is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami LawReview by an authorized administrator of Institutional Repository. For more information, please contact library@law.miami.edu.Recommended CitationLeonard Selkowitz, Adoption -- Right to Inherit Upon Readoption, 11 U. Miami L. Rev. 140 (1956)Available at: http://repository.law.miami.edu/umlr/vol11/iss1/12CASES NOTEDADOPTION-RIGHT TO INHERIT UPON READOPTIONClaimant was adopted by his aunt and uncle in 1918. After livingwith them for two weeks, he was returned to his natural parents; and in1920, was readopted by his natural parents. Following the death of hisaunt, intestate, the claimant sought to share in her estate. Held, where achild was readopted prior to the death of the first adoptive parent, lie couldnot share in the estate. In re Leichtenberg's Estate, 7 111. 2d 545, 131N.E. 2d 487 (1956).The right of inheritance is not absolute or natural, but is a creature ofstatute.' Adoption also is a creature of statute.- The capacity to inheritis conferred upon natural and adopted children without discrimination.3Once the adoption occurs, the child has the same legal status as a naturalchild. No court order or decree can expunge the rights derived therefrom,just as the rights of a natural child cannot be destroyed by any court orderor decree.4 The courts have uniformly held that a child who is adopted asecond time can inherit from the successive parents when the second adop-tion is subsequent to the death of the first adoptive parent.5  There is,however, a dispute as to whether the adopted child can inherit from thefirst adoptive parent, when, prior to the death of such parent, lie is adopteda second time." In this situation a distinction has been made between anatural child and an adopted child upon the rationale that one dependsupon blood and the other upon consent and contract.7 As stated in In reKlapp's Estate," the second proceeding ". . . ipso facto had the effect ofI. In re Eggert's Estate, -Minn.i, 72 N.W.2d 360 (1955).2. Villier v. Watson's Adm'r. 168 Ky. 631, 182 S.W. 869, 871 (1916), "The rightof an adopted child to inherit is, . . . based upon the statute, and not upon anycommon-law or civil law status."; Holnes v. Curl, 189 Iowa 246, 178 N.W. 406(1920); Succession of Gambino, 225 La. 674, 73 So.2d 800, 802 (1954), "Adoption ...is only what the law makes it."; In re Monroe's Ex'rs., 132 Misc. 279, 229 N.Y.S. 476(1928).3. Note 21 infra.4. Coonradt v. Sailors, 186 Tenn. 294, 209 S.W.2d 859 (1948), "Now concedingthat the second proceeding was in effect a second adoption, it does not deprive theappellee of her inheritable right which she acquired by virtue of her first adoption .. "5. Denton v. Miller, I 10 Kan. 292, 203 Pac. 693 (1922). The court was herereferring to the right of an adopted child to take from the natural children of itsadoptive parents.6. Hawkins v. Hawkins, 218 Ark. 423, 236 S.W.2d 733 (195]); Passmore v.Morrison, 63 So.2d 297 (FPa. 1953); Holmes v. Curl, 189 Iowa 246, 178 N.W. 406(1920); Dreyer v. Schrick, 105 Kan. 495, 185 Pac. 30 (1919); In re Klapp's Estate,197 Mich. 615, 164 N.W. 381 (1917); In re Myres' Estate, 205 Misc. 880, 129N.Y.S. 2d (1954); In re Tialey's Estate. 188 Okla. 338, 109 P.2d 495 (1941); In reEgley's Estate, 16 W\'ash. 2d 681, 134 P.2d 943 (1943).7. In re Klapp's Estate, 197 Mich. 615, 164 N.W. 381 (1917).8. Note 7 supra.CASENOTESrevoking or superseding the order made in the first proceeding. ' , Anothercourt recognizes the rule that upon the death of the first adoptive parent,the rights of the adopted child vest; but the court did not extend this to acase where the second adoption occurred prior to the death of the firstadoptive parent.' 0 The Supreme Court of Florida has stated that wherea child had been adopted and subsequently had become incorrigible, andthe adoptive parents had relinquished the guardianship and had consentedto the child's adoption by a grandparent, that upon equitable grounds thechild had no claim to the property of the deceased. 1 ' In Holmes v. Curl,'12a case similar in facts to the instant case, the court declared that the rela-tionship between parent and adopted child shall be the same as that exist-ing between parent and a child born out of wedlock, and a fortiori:The adoption was for the benefit of plaintiff, and the right conferredupon her by the articles of adoption and by the statute could notbe abrogated or destroyed at the pleasure of the father and theadopting parents. 13The fact that the adoptive parents could have had the child readopted isunimportant since this has no effect upon his legal status.' 4  Anothercase of similar factst, discusses the question and determines that since thefirst adoption does not subvert the right to inherit from the natural parent,"No reason is advanced, or is apparent, for annihilation by a second adop-tion of the right to inherit when the first adoption had no such effect, andit has been held that a second adoption is no more destructive of the rightthan the first."' 6 In a case of first impression the Arkansas court stated:The reason given in most of the cases appears to be that once thestatute invests the child with the right to inherit from an adoptingparent his right cannot be later taken away by the mere (emphasisadded) fact that he is later adopted by other parents.' 79. Id. at 381; Contra, Dreyer v. Slrick, 105 Kan. 495, 185 Pac. 30 (1919) whichspecially disapproves of In re Klapp's Estate saying, "The defect in this reasoning is that,while a new domestic relation is created, the first proceeding is not affected in anyparticular by the second."; succession of Gambino, 225 La. 674, 73 So.2d 800 (1954),the act of adoption creates a status and not a contractual relation."10. In re Talley's Estate, 188 Okla. 338, 109 P.2d 495 (1941), "It is obviousthat cases are not in point wherein the second adoption takes place after the deathof the first adoptive parent. In such a situation the inheritance occurs at the instantof death, if at al]. At the time there is no second adoptive parent. There may neverbe any. The estate vests. It is immaterial whether later a second adoption occurs.Under such circumstances it has been held, and we think rightly so, that the adoptedperson inherits from the first adoptive parent." (See cases cited by this court).11. Passmore v. Morrison, 63 So.2d )97 (Fla. 1953). (See dissenting opinion).12. 189 Iowa 246, 178 N.W. 406 (1920).13. Note 12 supra at 408.14. Note 12 supra.15. Drever v. Schrick, 105 Kan. 495, 185 Pac. 30 (1919). The child was adoptedprior to the death of the first adoptive parents.16. Id. at 33, citing Patterson v. Browning, 146 Md. 160, 44 N.E. 993 (1896).993 (1896).17. Hawkins v. Hawkins, 218 Ark. 423, 236 S.W.2d 733, 735 (1951).MIAMI LAW QUARTERLYThe statutes warranting adoption do not say how the status can be de-stroyed once it is created.'8 "The rights of an adopted child are fixed atthe time of the adoption and can no more be taken away than the rightsof a child born in lawful wedlock." ' The adopted child is regarded as theissue of the adoptive parent and his rights are not circumscribed by therights he will have while both are living.20The majority, in the principal case, state that the right to inherit isstatutory, and unless the statute allows the adopted child to inherit fromformer adoptive parents, the right is absent. In all respects, the court says,an adopted child is not the same as a natural child. A child forever remainsthe child of its natural parents, and historically there is a distinction betweenthe two relationships. The dissenting justice announces that a child doesnot take by reason of blood but ". . . only as a matter of legislative policy."21He argues that the legislature meant to abolish all distinctions and that thepublic policy of the state does not permit the recognition of two classesof children. The rights of a child to inherit from his natural parents cannotbe taken from him unless the legislature so decrees. Therefore, the dissentconcludes, unless the legislature states that an adopted child cannot takefrom his first adoptive parents, be has this right of inheritance.The decisions present two fundamental concepts. The cases repugnantto the right to inherit make a distinction between a natural child and achild by adoption. These courts indicate that the rights of the adoptedchild emanate from a contractual or consensual relationship which is subjectto the disabling effect of a second adoption prior to the death of the firstset of adoptive parents. They contend that since the right to inherit is bystatutory mandate, then what the statute does not expressly grant will notbe implied. This conservative approach does not perceive the merits ofthe courts reaching the opposite conclusion. These courts, speaking in termsof public policy and of a liberal construction of legislative enactments,allow the adopted child to inherit. The point is made that since thestatutes declare that the adopted child is to be the same as the naturalchild, and whereas the natural child can take from his first set of parents(the natural parents), then the child of successive adoptions must also bepermitted to take from his prior adoptive parents. Speaking in terms ofstatutory construction these courts say that where the statute does not de-prive the adopted child of the right to take from his former adoptive parents,they will not abrogate this right of inheritance. 22LEONARD SELICowrrz18. Succession of Gambino, 225 La. 674, 73 So.2d 800 (1954).19. In re Egley's Estate, 16 Wash.2d 681, 134 P.2d 943, 946 (1943).20. In re Esposito's Estate, 57 Cal. App. 859, 135 P.2d 167 (1943).21. 7 11l.2d 545, 131 N.E.2d 487, 491 (1956).22. In re Monroes Ex'rs., 132 Misc. 279, 229 N.Y.S. 476, 478 (1928), "As the lawof adoption is in derogation of the common law, nothing can be assumed, presumed,or inferred, and what is not found in the statute law is a matter for the Legislatureto supply, and not for the courts."

Adoption -- Right to Inherit Upon Readoption

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Adoption -- Right to Inherit Upon Readoption

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