Alack v. Phelps, 45531

• Citation: 230 So.2d 789
• Decision Date: 26 January 1970
• Docket Number: No. 45531,45531
• Parties: Sam ALACK, Virgil Hamilton, Admr. of the Estate of John B. Phelps, Dec'd and Virgil Hamilton, Guardian of Janet Carol Phelps, a Minor v. Thelma M. PHELPS, Guardian of Ronny Gene Phelps and Johnny Eugene Phelps, Minors.
• Court: United States State Supreme Court of Mississippi

Page 789

230 So.2d 789

Sam ALACK, Virgil Hamilton, Admr. of the Estate of John B Phelps, Dec'd and Virgil Hamilton, Guardian of Janet Carol Phelps, a Minor v. Thelma M. PHELPS, Guardian of Ronny Gene Phelps and Johnny Eugene Phelps, Minors.

No. 45531.

Supreme Court of Mississippi.

Jan. 26, 1970.

Lipscomb, Barksdale, Steen & Caraway, Jackson, for appellants.

Phillips & White Magnolia, for appellee.

ROBERTSON, Justice.

An interlocutory appeal was granted by the Chancery Court of Pike County, Mississippi, so that a final answer could be made to the question of whether minor children of a deceased natural father, who were adopted by others, would inherit from their natural father. Another question to be answered is whether these adopted children, through their guardian, have a right to bring suit under the wrongful death statute for the death of their father, where suit was brought by the administrator of the father's estate and settled before trial, the proceeds of the settlement being paid to the guardian of a minor child of a second marriage of the natural father.

The chancery court overruled a plea in bar interposed by appellant, Sam Alack, which plea set up the adoption of the twin boys by their paternal grandparents, and also asserted that a full settlement had been made and the suit of the administrator brought under the wrongful death statute dismissed.

On July 20, 1967, John B. Phelps was killed in a head-on collision with Sam Alack. Phelps was 26 years of age at the time of his death. His second wife, Linda, died later of injuries suffered in this accident. His 2 year old daughter, Janet Carol Phelps, a child of the second marriage, was also injured in this accident.

Virgil Hamilton, Administrator of the Estate of John B. Phelps, and also Guardian of Janet Carol Phelps, brought suit against Sam Alack for the wrongful death of John B. Phelps. The suit was transferred to Federal District Court because Alack was a resident citizen of Louisiana.

The Chancery Court of Pike County in approving a compromise settlement of $40,000, also found that 'Janet Carol Phelps is the sole wrongful death beneficiary of John B. Phelps,' and directed the guardian to deposit the $40,000 in his guardianship account. The chancery court authorized the guardian to dismiss with prejudice the Federal District Court suit, and this was done by order entered on the minutes.

Thelma M. Phelps, the paternal grandmother and the adoptive mother, was appointed guardian of Ronny Gene Phelps and Johnny Eugene Phelps, twin boys born on August 10, 1961, to John B. Phelps and his first wife, Nola Phelps. The mother died when these children were born. The little boys and their father continued to live with the grandparents and when they were about 13 months old, at the insistence of their father, and upon his promise to help support them, the grandparents, C. E. Phelps and his wife, Thelma M. Phelps, adopted their two grandsons.

The Decree of Adoption, dated September 21, 1962, tracked Section 1269-06, Mississippi Code of 1942 Annotated (Supp.1968) and among other things, provided:

'It is further ordered, adjudged and decreed that said adopting parents and any other children of said adopting parents adopted or otherwise shall inherit from said children as though they were natural born children and natural born brothers and sisters and in all respects as if said children had been born to said adopting parents.

'It is further ordered, adjudged and decreed that said adopting parents and adopting kindred are vested with all of the powers, duties, privileges, obligations and rights existing by virtue of Section 1453 of the Code of 1942 as amended and as particularly amended by the aforesaid Act of the Extraordinary session of the Legislature of the State of Mississippi of 1955.

'It is further ordered, adjudged and decreed that the Natural parent of said children and the natural kindred of said children shall not inherit by or through said children and the said childrens' names be and remain the same as that hereinabove set forth by which names they shall hereafter be known and called.'

Having been authorized by the chancery court so to do, Thelma M. Phelps, as Guardian of Ronny Gene Phelps and Johnny Eugene Phelps, Minors, brought suit against Sam Alack, Virgil Hamilton, Administrator of the Estate of John B. Phelps, deceased, and Virgil Hamilton, Guardian of Janet Carol Phelps, a Minor.

Hamilton, as Administrator and Guardian, answered that by virtue of the adoption of Ronny and Johnny Phelps that under Section 1453, the wrongful death statute, they were no longer heirs of their deceased natural father. Alack interposed the same defenses by way of special plea, and also asserted that the $40,000 settlement was a full, fair and reasonable settlement, that said monies are in the guardian's account and are subject to proportionate distribution to these two minors, if the Court should hold that they are heirs of their deceased father.

The guardian of Ronny and Johnny Phelps answered that the adoption of Ronny and Johnny Phelps was at the sole insistence and instigation of their father, John B. Phelps, and upon his promise to aid and assist in every way possible in their rearing, support, maintenance and education. The guardian further answered that the chancellor hearing the adoption proceeding knew that C. E. Phelps had heart trouble and exacted the same promise of John B. Phelps, the father of said children, at the hearing. The guardian charged collusion and conspiracy between Alack and Hamilton, Administrator and Guardian. Guardian Phelps also contended that the alleged settlement on its face covered only the one claim of Janet Carol Phelps, the minor child of John B. Phelps by his second marriage.

The chancellor heard the special plea in bar separately and ruled that Ronny and Johnny Phelps, even though adopted by their paternal grandparents, were still entitled to inherit from their natural father, and were not foreclosed from asserting their rights under the wrongful death statute. Sam Alack appealed.

Adoption is purely a creature of statute; it was unknown at common law. 2 Am.Jur.2d Adoption section 2 page 861 (1962) expresses it in this way:

'In this country the right or the power to create, by a legal proceeding, the relationship of parent and child between persons not so related by nature exists only by virtue of a statutory provision prescribing the conditions and the procedure by which adoption may be made effective. Not only the right of adoption but the legal consequences of adoption are of statutory origin.' (emphasis added).

Section 1269-06, Mississippi Code of 1942 Annotated (Supp.1968), sets forth what the final decree of adoption shall contain and the effect of such a decree:

'The final decree shall adjudicate, in addition to such other provisions as may be found by the court to be proper for the protection of the interests of the child, and its effect unless otherwise specifically provided, shall be that (a) the child shall inherit from and through the adopting parents and shall likewise inherit from the other children of the adopting parents to the same extent and under the same conditions as provided for the inheritance between brothers and sisters of the full blood by the laws of descent and distribution of the State of Mississippi, and that the adopting parents and their other children shall inherit from the child, just as if such child had been born to the adopting parents in lawful wedlock; (b) the child and the adopting parents and adoptive kindred are vested with all of the rights, powers, duties and obligations, respectively, as if such child had been born to the adopting parents in lawful wedlock, including all rights existing by virtue of section 1453 of the Code of 1942; provided, however, that inheritance by or from the adopted child shall be governed by sub-section (a) above; (c) that the name of the child shall be changed if desired; and (d) that the natural parents and natural kindred of the child shall not inherit by or through the child except as to a natural parent who is the spouse of the adopting parent, and all parental rights of the natural parent or parents shall be terminated, except as to a natural parent who is the spouse of the adopting parent.' (emphasis added).

Mississippi early reached the decision...