Bjertness, Donald E

English

UND Scholarly Commons (University of North Dakota)

North Dakota Law Review Volume 33 Number 2 Article 9 1657 Domestic Relations - Inheritance by Adopted Children - Right of Adopted Child to Inherit from Its Natural Parents Donald E. Bjertness Follow this and additional works at: https://commons.und.edu/ndlr  Part of the Law Commons Recommended Citation Bjertness, Donald E. (1657) "Domestic Relations - Inheritance by Adopted Children - Right of Adopted Child to Inherit from Its Natural Parents," North Dakota Law Review: Vol. 33 : No. 2 , Article 9. Available at: https://commons.und.edu/ndlr/vol33/iss2/9 This Case Comment is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact und.commons@library.und.edu. 1957] RECENT CASESpossible disloyalty of federal employees, but to their probable carelessness,25it can reasonably be extended only to employees who have access to informa-tion, the improper disclosure of which would adversely affect nationalsetcurity.2 6DUANE R. JENSEN.DOMESTIc RELATIONS - INHERITANCE BY ADOPTED CHILDREN - RIGHT OFADOPTED CHILD TO INHERIT FROM ITS NATURAL PARENTS.- Respondent, anadopted child claimed the right to inherit a one-fourth interest in the estate ofhis natural father. The administratrix of the deceased's estate contended thatrespondent's right to inherit from his natural parent was cut off by his adoptioninto another family. The Supreme Court of North Dakota, affirming the Dis-t:ict Court, held that the adoption statute did not prevent an adopted childfrom inheriting from his natural parent. In re Ballantine's Estate, 81 N.W.2d259 (N. D. 1957).Adoption was unknown at common law therefore all provisions for inheri-tance by adopted children must be found in statutes and the cases construingthem. 1 The North Dakota statutes as quoted in the instant case provide, "Thechild so adopted shall be deemed, as respects all legal consequences and inci-dents of the natural relation of parent and child, the child of such parent orparents by adoption, the same as if he had been born to them in lawful wed-lock"2 and "The natural parents of an adopted child shall be deprived by thedecree of adoption of all legal rights respecting the child, and the child shallbe free from all obligations of maintenance and obedience respecting hisnatural parents."'The court in reaching its decision examined the history of the adoptionstatute. 4 The statute of 18915 contained the provision that an adopted childshould be treated as one born to the adoptive parents in lawful wedlock"... except that such adoption shall not itself constitute such child the heirof such parents or parents by adoption." This quoted provision, the court ob-served, was omitted in the Revised Code of 1895 and said, "the omission . . .would not of itself alter . . ." the legislative intent of not disturbing thechild's right to inherit from its natural parents.The court's construction of the adoption statutes follows the decidedvweight of authority. 6 From a review of cases from jurisdictions with statutessimilar to those in North Dakota, none were found disallowing the adoptedchild's right to inherit. Those barring the right base the denial upon specificstatutory provision. The reason for the rule allowing the right of inheritance353; Emerson & Helfeld, Loyalty Among Government Employees, 58 Yale L. J. 1, 3-20(1948).25. See note 22 supra.26. See note 20 supra.1. See In re Jaren's Adoption, 223 Minn. 561, 27 N.W.2d 656 (1947); Young v.Bridges, 86 N. H. 135, 165 Atd. 272 (1933); 4 Vernier, American Family Laws 279(1936).2. N. D. Rev. Code § 14-1113 (1943).3. N. D. Rev. Code § 14-1114 (1943).4. N. D. Sess. Laws 1891, e. 4, § 6.5. Rev. Codes of N. D. § 2804 (1895).6. See e.g., Roberts v. Roberts, 160 Minn. 740, 199 N.W. 581 (1924); Clarkson v.Hatton, 143 Mo. 47, 44 S.W. 761 (1898); In re Kay's Estate, 127 Mont. 172, 260 P.2d391 (1953); In re Benner, 109 Utah 172, 166 P.2d 257 (1946).NORTH DAKOTA LAW REVIEWa. quoted in Sorenson v .Churchill7 is, "... it may stand assumed as soundlaw that consanguinity is so fundamental in statutes of descent and distribu-tion that it may only be ignored by construction when courts are forced so todo, either by the terms of express statute or by inexorable implication."' Anincreasing number of jurisdictions are now following the minority view andhave enacted statutes expressly denying the right of an adopted child to in-herit from his natural parents, 9 thus alleviating any necessity of constructionon the part of the courts. Such legislation is based on a recognition of thefact that the adopted child takes on the incidents of a natural relation with its;.dopted parents and his natural parents are thereby relieved. 1° The import-ance of allowing the descent and distribution of an estate to follow the bloodrelationship is overshadowed by the desirable social aspects of adoption. Asthe adoption carries with it all the responsibilities, rights and duties to theadopted child, it seems proper that the child should be severed from all tieswith its natural family, including the right of inheritance.The problem of whether an adopted child may inherit from its naturalparents is only one of the many that may arise when considering the statuscreated by adoption statutes. Some of the others which frequently occurare: whether the adopted child can inherit from its adoptive parents, tfrom the collateral and lineal relatives of the adoptive family,1 - from the col-lteral and lineal kin of his natural family;13 whether he can inherit both as anadopted child and as natural kin, as in a situation where it is adopted by arelative of its natural parents;1 4 and whether a child of a second adoption caninherit from its parents of the second adoption, the first adoption and/or itsnatural parents. 15 The same type of problems appear in the reverse of thesesituations, i. e., which parents and relatives may inherit from the adopted childin the event it predeceases them.16Although there have been few cases in North Dakota concerning the descentand distribution of property to and from an adopted child, it has been thescurce of much litigation in other jurisdictions and it appears that remediallegislation is desirable.DONALD E. BJERTNESS.7. 51 S. D. 113, 212 N.W. 488 (1927).8. Id. at 489.9. See e.g., Ariz. Code § 27-207(a) (Supp. 1952); Calif. Ann. Code § 257 (West1956); Conn. Gen. Stat. I 6869 (1949); N. C. Sess. Laws, c. 813 (1955); N. Mex. Stat.Ann. § 29-1-17 (1953); Pa. Stat. Ann. Title 20 § 1.8 (Purdon 1950); Va. Code § 63-358 (1954 Supp.).10. Alexander v. Lamar, 188 Ga. 273, 3 S.E.2d 656, 659 (1939) (dictum); In reHavsgord's Estate, 34 S. D. 131, 147 N.W. 378, 379 (1914) (dictum).11. See Hoellinger v. Molzhon, 77 N. D. 108, 41 N.W.2d 217 (1950); In re Nelson'sEstate, 266 Wis. 617, 64 N.W.2d 407 (1954); In re Holcombe's Estate, 259 Wis. 642,49 N.W.2d 914 (1951).12. See In re Eddin's Estate, 66 S.D. 109, 279 N.W. 244 (1938); In re Harring-ton's Estate,'95 Utah 252, 85 P.2d 630 (1938); In re Rhodes' Estate, 271 Wis. 342, 73N.W.2d 602 (1955).13. See In re Darling, 173 Cal. 221, 159 Pac. 606 (1916); In re Gourlay's Estate,173 Misc. 930, 19 N. Y. S.2d 122 (Surr. Ct. 1940).14. See In re Wilson, 95 Colo. 359, 33 P.2d 696 (1934); In re Benner, 109 Utah172, 166 P.2d 257 (1946).15. See In re Leichtenberg's Estate, 7 Ill.2d 545, 131 N.E.2d 487 (1956).16. See In re Fitzgerald's Estate, 223 Iowa 141, 272 N.W. 117 (1937); Calhoun V.Bryant, 28 S. D. 266, 133 N.W. 266 (1911).[VOL. 33

Domestic Relations - Inheritance by Adopted Children - Right of Adopted Child to Inherit from Its Natural Parents

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Domestic Relations - Inheritance by Adopted Children - Right of Adopted Child to Inherit from Its Natural Parents

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