Allen, James D.

Ferguson, Jo M.

English

University of Kentucky

Kentucky Law JournalVolume 27 | Issue 4 Article 101939Wills--Effect in Kentucky of Adoption of a Childon a Prior Made WillJames D. AllenUniversity of KentuckyJo M. FergusonUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Estates and Trusts CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationAllen, James D. and Ferguson, Jo M. (1939) "Wills--Effect in Kentucky of Adoption of a Child on a Prior Made Will," Kentucky LawJournal: Vol. 27 : Iss. 4 , Article 10.Available at: https://uknowledge.uky.edu/klj/vol27/iss4/10STUDENT NOTES 455statement that he gave it to her for her own benefit. The wife pre-vailed over the named beneficiary, despite the fact the policy containedthe usual provision for written application and endorsement of change."A life policy ... may be assigned or otherwise disposed of as otherchoses. Conditions . . . requiring that notice of assignment be givento the insurer . .. are not meant ... to curtail [insured's] right tochange the beneficiary of the policy, or to assign it."' This case hasnever been overruled, and later cases of a similar nature have appar-ently recognized its authority.2" The court erred in the Lockett casein not recognizing that a life insurance policy is a third party bene-ficiary contract, in which only the insured's interest, which ceases athis death, is properly assignable. Perhaps the court's failure to men-tion the Lockett case in a recent decision involving somewhat similarfacts, indicates a change of opinion/?An important question which remains for the future is the suf-ficiency of a formal application for change of beneficiary which is sentto the insurer without the policy, though the policy is in the possessionof the insured, who omits to send it merely through oversight orignorance. It is submitted that in such case the insured has not "doneall that he could do to comply with the requirements",3' but it isdoubtful if the court would fail to give effect to the insured's intentionon that account.SUMARYIn summarizing, it may be said that Kentucky will recognize anattempted change as effectual when: the insurer has neglected orunreasonably refused to make the change, and the insured has other-wise substantially complied with the requirements; the failure tocomply is due to the refusal of the custodian of the policy to give it up;the insured has "substantially complied" by doing all that he could dowithout difficulty to comply, even though his death occurs before anynotice reaches the company. Jo M. FERGUSONWILLS-EFFECT IN KENTUCKY OF ADOPTION OF A CHILD ONA PRIOR MADE WILLKentucky provides by statute that when a child is born after theexecution of a will in which no provision has been made for him, thewill Is revoked to the extent that the afterborn child takes the sameshare he would have taken had his parent died intestate.' This statute,-Id. at 301, 80 S. W. at 1152." Harden v. Harden, 191 Ky. 331, 230 S. W. 307 (1921); MetropolitanL. Ins. Co. v. Brown's Admr., 222 Ky. 211, 300 S. W. 599 (1927). (Butthe decision did not follow the Lockett case, on the ground the factualsituations were different.)' Supra, note 23.Supra, note 18.' Kentucky Statutes (Carroll's 1936) sections 4847 and 4848; Sneedv. Ewing, 28 Ky. (5 J. J. Marsh.) 460, 22 Amer. Dec. 41 (1831); Knut v.Knut, 22 Ky. L. Rep. 972, 58 S. W. 583 (1900).K. L. J.-7KENTUCKY LAW JOURNALcontrary to the common law rule,2 in effect adopts the civil law rule,now operative by statute in most states.4 The statutes either revoke thewill pro tanto so that the child can take as if the testator had diedintestate,' or revoke it completely. 6The question arises as to whether an adopted child comes underthe provisions of these statutes. In other states having similar statutesthere is a conflict on the point.7 The effect of the adoption on the willdepends to a great extent on the interpretation placed on the adoptionstatute of the particular state in the light of the revocaion statuteThe problem in Kentucky is whether the words "born" and "after-bornchild" in the revocation statute will be so construed as to give effectto the purpose indicated in the adoption statute,9 that the adopted childshall be put as nearly as possible on an equal footing with the naturalchild. Although a few jurisdictions have taken into consideration theliteral wording of the revocation statute, and held it inapplicable toadopted children,"0 the majority of courts have taken a contrary view."The question of revocation of a will by the adoption of a child hasnever presented itself in Kentucky. The answer to this question isindicated to some degree by the decisions construing the provisionsof the adoption statute in respect to the status of the adopted child.At an early date the court recognized that the words "children" and21 Page, Wills (2nd ed., 1926) sec. 479; Rood, Wills (2nd ed., 1926)sec. 382; 1 Alexander, Wills (1917) 733; Ann. Cases 1913D 1318.'Ann. Cases 1913D 1322.4 Alabama-Code (1923) sees. 10585, 10586; Delaware-Laws (1915)sees. 3251, 3252; Nebraska-Comp. Stat. (1922) sec. 1266; New York-Cons. Laws (1918), p. 1750, sec. 26; Texas-Civ. Stat. (1920) Arts. 7865,7866. For a full list of the statutes see Rood, Wills (2nd ed., 1926)322, n. 54 and 55.'ibid.'ibid.7Adopted children are within the terms of the statute: Hopkins v.Gifford, 309 Ill. 363, 141 N. E. 178 (1923); Helpire v. Claude, 109 Iowa159, 30 N. W. 332 (1399); Dreyer v. Schrick, 105 Kan. 495, 185 Pac. 30(1919); Fishburne v. Fishburne, 171 S. C. 408, 172 S. E. 426 (1934).Contra: In re Comassi's Estate, 107 Cal. 1, 40 Pac. 15 (1895); Davis v.Fogle, 124 Ind. 41, 23 N. E. 860 (1890).' See Alvin E. Evans, Testamentry Revocation by Adoption of aChild (1934), 22 Ky. L. J. 600.'Kentucky Statutes (Carroll's, 1936) sec. 2071. (The adoptionorder shall "declare such person heir-at-law of such petitioner, and assuch, capable of inheriting as though such person were the child ofsuch petitioner".)2' In re Comassi's Estate, 107 Cal. 1, 40 Pac. 15 (1895); Davis v.Fogle, 124 Ind. 41, 23 N. E. 860 (1890).nFlannigan v. Howard, 200 Ill. 396, 65 N. E. 782 (1902); Hopkinsv. Gifford, 309 Ill. 363, 141 N. E. 178 (1923); Helpire v. Claude. 109Iowa 159, 80 N. W. 332 (1899); Dreyer v. Schrick, 105 Kan. 495, 185Pac. 30 (1919); In re Rendell's Estate, 244 Mich. 197, 221 N. W. 116(1928); Bourne v. Dorney, 171 N. Y. S. 264 (1918); Surman v. Surman,22 Ohio App. R. 472, 153 N. E. 873 (1925); In re Hebb's Estate, 134Wash. 424, 235 Pac. 974 (1925).STUDENT NoTs"issue" as used in the statute of descent and distribution, are notnecessarily confined to children and issue born in lawful wedlock.2In Power v. Hafley,"' the first case in which the effect of an adoptionwas discussed at length, the court declared in interpreting the statuteof descent and distribution:"The word 'children' may include in its meaning childrenborn in lawful wedlock and children made legitimate by themarriage of their parents, and children by adoption, for the latterare the legal children of their adoptive parents."Under a statute which provided that if the deceased left no issue,his widow was entitled to one-half of the surplus personalty, whereasshe was entitled to only one-third if the deceased left issue, the word"Issue" was interpreted to include an adopted child. "The adoption.. gives the one adopted the status of a child with all the capacity toinherit what it would have, if in fact the child of the one adoptingit."" Furthermore, under the statutes of descent and distribution thewords "parent" and "child" are not restricted to denote only thenatural relationship., The Kentucky court has always seemed to havethe utmost tenderness for the rights of adopted children. Even in acase where children were first adopted by one person, and then byanother, the second adoption was said not to destroy their right ofInheritance from the first adoptive parent.0 The court said that theintent of the adoption statute "is to create the same relations betweenan adopted child and its adoptive father as a child bears ... to its ownfather, as near as may be."' t Therefore, since a child may inherit froma natural parent although he has been adopted by another, he mayinherit from his first adoptive parent, though he has later beenadopted by another. Cancellation of the contract of adoption afterdeath of the adoptive parent does not deprive the child of its rightsunder the original article of adoption. 8 Where an adopted child diesbefore the person adopting him, leaving children, those children inheritthe estate of the person who adopted their deceased parent as if theywere his grandchildren. The duties of a legitimate natural parent anda voluntary adopting parent are the same with reference to the rightsand obligations growing out of the relation.-?"-Drain v. Violett, 65 Ky. (2 Bush) 155, 157 (1867). (A naturalson who had been adopted by a special act of the legislature was heldto be "issue" of his father.)"85 Ky. 671, 4 S. W. 683 (1887)."Atchison v. Atchison's Exrs., 89 Ky. 488, 493, 12 S. W. 942, 944(1890).I'Lanferman v. Vanzile, 150 Ky. 751, 150 S. W. 1008 (1912)."Viller v. Watson's Admx., 168 Ky. 631, 182 S. W. 869 (1916).17 Id. at 639, 182 S. W. at 872."Russell's Admr. v. Russell's Guardian, 14 Ky. Law Rep. 236(1892).Power v. Hafley, 85 Ky. 671, 4 S. W. 683 (1887); Wilcox v. Sams,213 Ky. 696, 281 S. W. 832 (1926).-Commonwealth v. Kirk, 212 Ky. 646, 279 S. W. 1091 (1926).KENTUCKY LAW JOURNALThere are only slight suggestions of the possibility of a less sym-pathetic attitude toward the adopted child. In Lanfermam v. Vanffethree judges in a strong dissent declared that "kindred" means "rela-tives by blood" and that "the courts should depart from this elementalblood-guideship only when enforced to do so by an inexorable statutorydemand." There is a trace of this idea of blood-relationship as thebasis of all inheritance laws in an earlier case.-Since most of the dicta in the Kentucky cases indicate a sympathyfor the view of the majority of jurisdictions, it seems almost certainthat when this question is decided, Kentucky will be found in agree-ment with the weight of authority. It is submited that desirable socialresults are to be gained in following the majority rule. The adultby adopting the child takes upon himself the responsibility of caringfor the child and giving him an equal start in life with other children.In order to fulfill the apparent intention of the adult in adopting thechild, it is necessary to permit the child to inherit from the adult, andhe should not be prevented from inheriting through the negligence oroversight of the adult. JAMEs D. ALLENJo M. FEnGusoHUSBAND AND WIFE-DIVORCE-ASSIGNABILITY OF ALIMONYIt is the purpose of this note to discuss the assignability of alimonywhen the assignment is for (1) a future installment, (2) assignmentof a gross award, and (3) an assignment of an installment which hasalready accrued and is past due.Before entering into a discussion of the question we shall considerthe nature and purposes of alimony, the various things to be takeninto consideration by the courts in making the award, and also theinterests of the parties and the public in relation thereto.Alimony is considered as being an allowance which a husband, byorder of the court, pays to his wife, living separate from him, for hermaintenance.' The amount to be awarded for alimony depends upon agreat variety of considerations and is governed by no fixed rules.2 Theability of the husband to pay;' the needs of the wife; the acquisitionof the estate; 4 whether there are children to be supported and educated,"150 Ky. 751, 150 S. W. 1008, 1011 (1912).2Merritt v. Morton Admx., 143 Ky. 133, 136 S. W. 133 (1911)."See note 11, supra.'Chase v. Chase, 55 Me. 21 (1869); Odom v. Odom, 36 Ga. 286(1867). -- Richmond v. Richmond, 2 N. J. Eq. 90 (1838); Ricketts v. Ricketts,4 Gill 105 (Md. 1846); Burr v. Burr, 7 Hill 207 (N. Y., 1843); McGeev. McGee, 10 Ga. 477 (1851).3Small v. Small, 28 Neb. 843, 45 N. W. 248 (1880); Battey v. Battey,1 R. I. 212 (1845); Bursler v. Bursler, 5 Pick. 427 (Mass., 1827); Mc-Crocklin v. McCrocklin, 41 Ky. (2 B. Mon.) 370 (1842); McGrady v.McGrady, 48 Mo. App. 668 (1892).4Fishli v. Fishli, Ky. (2 Litt.) 327 (1822); Robbins v. Robbins,101 Ill. 416 (1882); Stevens v. Stevens, 49 Mich. 504, 13 N. W. 835(1882).

Wills--Effect in Kentucky of Adoption of a Child on a Prior Made Will

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Wills--Effect in Kentucky of Adoption of a Child on a Prior Made Will

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