Anderson v. French

• Decision Date: 06 April 1915
• Citation: 77 N.H. 509,93 A. 1042
• Parties: ANDERSON v. FRENCH et al.
• Court: New Hampshire Supreme Court

93 A. 1042

77 N.H. 509

ANDERSON

v. FRENCH et al.

Supreme Court of New Hampshire. Rockingham.

April 6, 1915.

Parsons, C. J., dissenting.

Appeal from Superior Court, Rockingham County; Pike, Judge.

Suit by Evalena W. F. Anderson against Irving J. French, administrator, and another. From an adverse decree, plaintiff appeals. Appeal sustained, and decree set aside.

Mary C. Fitts was a resident of Newflelds, and died there on February 8, 1912, intestate, leaving personal property. She had in her lifetime two brothers, S. Franklin and George H. French. S. Franklin died at Newfields on November 14, 1911, leaving as his sole heir at law Evalena W. F. Anderson, an adopted daughter, who is the appellant. George H. died on October 2, 1906, leaving as heirs at law three sons, Warren K., George F., and Irving J. French, who are the appellees. The intestate had no other next of kin. The appellant was adopted in Massachusetts in 1874, but removed to this state with her adoptive father in 1893 and has since resided here. The probate court decreed that Evalena was not entitled to share in the estate of Mary C. Fitts, and from that decree this appeal was taken. The appellant claims that, as an adopted daughter of S. Franklin French, she has a right of inheritance to that part of the estate which her adoptive father would have inherited had he survived his sister. The appellees contend that the appellant is not entitled to any part of the estate.

Herbert L. Grinnell, Jr., and G. K. & B. T. Bartlett, all of Derry, for appellant. Eastman, Scammon & Gardner, of Exeter, for appellees.

PLUMMER, J. The appellant having been legally adopted in Massachusetts, under adoption laws similar to those In this state, that adoption should be recognized here. Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321; Van Matre v. Sankey, 148 Ill. 536, 36 N. E. 628, 23 L. R. A. 665, 39 Am. St. Rep. 196; Calhoun v. Bryant, 28 S. D. 266, 133 N. W. 266. "There is * * * no doubt as to the general principle that the status acquired by adoption in a state or country having jurisdiction will be recognized both for the purpose of the descent of real, and the distribution of personal, property in other states or countries, at least in those whose laws provide for adoption." 1 Whart. Conf. Laws (3d Ed.) 568.

Section 8, c. 310, Acts and Resolves of Massachusetts of 1871, in force at the time of the adoption, and now, so far as the inheritable rights of the appellant in this case are concerned, provides that:

A child or person so adopted shall be deemed for the purpose of inheritance, and all other legal consequences of the natural relation of parent and child, to be the child of the parent or parents by adoption, as if born to them by lawful wedlock, except that he shall not take property expressly limited to the heirs of the body or bodies of the parents by adoption, nor property from the lineal or collateral kindred of such parents by right of representation."

Section 5, c. 181, Public Statutes of New Hampshire, Is as follows:

"The child so adopted shall bear the same relation to his adopting parents and their kindred in respect to the inheritance of property and all other incidents pertaining to the relation of parent and child as he would if he were the natural child of such parents, except he shall not take property expressly limited to the heirs of the body or bodies of the adopting parents, and if he dies under age or intestate, leaving property received by gift or inheritance from his natural kindred, such property shall be distributed as if there had been no decree of adoption."

It will be seen that by the statute of Massachusetts, where the appellant was adopted, she cannot inherit any of the estate of Mary C. Fitts, who was the sister of her adoptive father; but under the statute of this state, she is entitled to inherit a portion of that estate if she can be here treated as an adopted child. The question for decision, therefore, is whether the capacity of the appellant to inherit as an adopted child is governed and limited by the law of Massachusetts, where she was adopted, or by the law of this state, where the one from whom she seeks to inherit personal property had her domicile at the time of her death. The legality of the adoption is decided by the law of the state where the adoption took place, but that relation or status having been established, what the adopted child shall inherit should be determined in the case of personalty by the lex domicilii of the owner at the time of his decease, and real estate by the lex rei sitae. 14 Cyc. 21.

Ross v. Ross, supra, is regarded as the leading case upon this subject in this country; but the courts do not interpret the language of the opinion alike, and it is found cited upon both sides of the question under discussion. The case did not really call for a decision of the principle involved here, as will be seen by consideration of the facts which were as follows: A child was adopted in Pennsylvania under a statute of adoption similar to Massachusetts, and subsequently the adoptive parents and child moved to Massachusetts, and the adoptive father died there, intestate, leaving real estate. The laws of Massachusetts and Pennsylvania gave an adopted child the same rights in the estate of the adopting father. Under that situation, the court decided that the adopted child was entitled to inherit the real estate of his adopting father. The only decision required was whether Massachusetts would recognize the adoption in Pennsylvania, for the rights of inheritance of the adopted child were the same in each state; therefore any statements made by the court in that opinion bearing upon the question in dispute in this case are dicta. We do not understand, however, that Chief Justice Gray intended his opinion to convey the idea that an adopted child is to inherit in accordance with the laws of the state where he was adopted, without regard to the laws of the state where he is seeking to enforce his rights of inheritance, for he states:

"It is a general principle that the status or condition of a person, the relation in which he stands to another person, and by which he is qualified or made capable to take certain rights in that other's property, is fixed by the law of the domicile, and that this status and capacity are to be recognized and upheld in every other state, so far as they are not inconsistent with its own laws and policy."

The appellees cite and rely upon Meader v. Archer, 65 N. H. 214, 23 Atl. 521. In this case it appears that the defendant, as an adopted child, could not inherit under the Massachusetts law. Whether he could under the New Hampshire statute does not appear to have been considered. The appellees in their brief say that the following cases are practically to the same effect as Ross v. Ross, supra: Melvin v. Martin, 18 R. I. 650, 30 Atl. 467; Smith v. Kelly, 23 Miss. 167, 55 Am. Dec. 87; Finley v. Brown, 122 Tenn. 316, 123 S. W. 359, 25 L. R. A. (N. S.) 1285; Gray v. Holmes, 57 Kan. 217, 45 Pac. 596, 33 L. R. A. 207; Van Matre v. Sankey, supra. The above statement in relation to these cases is, generally speaking, true. In each of them the laws governing the descent and distribution of property to adopted children were the same in the state of the forum as they were in the state where the adoption took place; but it is apparent from reading the opinions that if the laws of the states had been different or inconsistent, the laws of the forum would have controlled. In Van Matre v. Sankey, supra, the court ruled that a child legally adopted in Pennsylvania could inherit real estate owned by her adoptive father in Illinois, because the laws of Illinois and Pennsylvania relating thereto were the same; but the opinion plainly indicates that if the laws of Pennsylvania had been inconsistent with the laws of Illinois, those of the latter state would have governed. Keegan v. Geraghty, 101 Ill. 26, recognized the principle that in the descent of real estate the lex rei sitae should govern, without regard to the law of the state where the adoption took place. In that case the plaintiff was entitled to inherit by representation from collateral kindred of the adopting parent the realty in question, under the laws of Wisconsin, the state of adoption, but not in Illinois, where the real estate was situated, and it was held that the plaintiff could not recover, as the laws of Illinois must control. The court in the opinion said:

"According to the principle laid down in the case of Ross v. Ross, supra, as we understand and accept it, the rights of inheritance acquired by the adopted child under the law of Wisconsin will be recognized and upheld in this state only so far as they be not inconsistent with our law of descent, so that if, by our own statute of adoption, the petitioner could not take in this case under our statute of descent, then she cannot take, no matter what may be the law of Wisconsin in respect to the rights of an adopted child."

The appellees rely upon Estate of Sunderland, 60 Iowa, 732, 13 N. W. 655. In this case the appellant, who was adopted in Louisiana, was entitled to inherit the real estate in controversy under the laws of Iowa, where it was situated, but not in Louisiana, and the court held that the laws of the latter state must control. The case, however, is sui generis. The adoption was by special act of the Legislature of Louisiana, and the court ruled that the rights of the adopted child were defined and fixed by the special act of adoption.

In Shick v. Howe, 137 Iowa, 249, 114 N. W. 916, 14 L. R. A. (N. S.) 980, cited by both parties, the adoption was in New York, the domicile of the owner of the property that the adopted child sought to inherit was in Iowa, and it appears that the rights of inheritance of the adopted child, so far as this case was concerned, were substantially the same in New York as in Iowa, both giving the adopted child the right of...