Baker's Estate, In re, 4455

• Decision Date: 26 February 1965
• Docket Number: No. 4455,4455
• Citation: 172 So.2d 268
• Parties: In re ESTATE of Lilian C. BAKER, Deceased. Grace W. PARKER, Appellant, v. Glenna B. BLAINE, Esther T. Geisler, and Edmund Read, as Executor of the Estate of Lilian C. Baker, Deceased, Appellees.
• Court: Florida District Court of Appeals

Page 268

172 So.2d 268

In re ESTATE of Lilian C. BAKER, Deceased.

Grace W. PARKER, Appellant, v. Glenna B. BLAINE, Esther T. Geisler, and Edmund Read, as Executor of the Estate of Lilian C. Baker, Deceased, Appellees.

No. 4455.

District Court of Appeal of Florida, Second District.

Feb. 26, 1965.

W. Joseph Reynolds, St. Petersburg, for appellant.

N. David Korones, Clearwater, for appellees.

ANDREWS, Judge.

This is an appeal from an Order of the county judge holding that the adoptive daughter of a named deceased beneficiary under a will takes the share of her adoptive father.

The testatrix, Lilian C. Baker, executed her will on May 8, 1962, and died on November 25, 1962. She devised all her property to her two nieces, Grace Parker, the appellant, and Esther Geisler, and to her nephew, Howard Baker, in equal shares. Howard Baker died on October 21, 1962, leaving Glenna B. Blaine, his adopted daughter, as his only child.

The executor filed a Petition for Determination of Heirs asking the court to determine whether Glenna B. Blaine was the legally adopted daughter of Howard S. Baker, and if so, whether she was entitled to receive the one-third share of the estate of Lilian C. Baker which had been bequeathed to her adoptive father.

The court held that Glenna B. Blaine was legally adopted and was the lineal descendant of her adopting parent and therefore was entitled to receive the legacy by virtue of the anti-lapse statute, F.S.A. § 731.20. Grace Parker appealed.

The precise question presented is whether an adopted child is a 'lineal descendant' within the meaning of our anti-lapse statute, F.S.A. § 731.20.

F.S.A. § 731.20(1) provides in part that 'when any property is devised or bequeathed to an adopted child or blood kindred of the testator, and when such devisee or legatee dies before the testator, leaving lineal descendants * * * such legacy or devise does not lapse, but such descendants take the property so given by the will in the same manner as the devisee or legatee would have done had he survived the testator.'

The statutory provisions governing adopted children expressly provide that when a legal adoption is perfected the adopted child becomes 'the child and legal heir of the adopting parent or parents, entitled to all the rights and privileges, * * * of a child born to such parent or parents in lawful wedlock.' Florida Statutes § 72.22 and 72.38, F.S.A.

The probate law further provides that an adopted child 'shall be an heir at law, and for the purpose of inheritance, shall be regarded as a lineal descendant of his adopting parents' and that 'the adopted child shall be regarded as the natural brother or sister of the natural children and other adopted children of the adopting parents * * *' Florida Statutes § 731.30, as amended in 1953, F.S.A.

The appellant relies heavily on the cases of In re Hewett's Estate, 1943, 153 Fla. 137, 13 So.2d 904, and In re Levy's Estate, Fla.App.1962, 141 So.2d 803. The Supreme Court in the Hewett case held that, under the then applicable statute, an adopted child could not 'inherit' from lineal or collateral kindred of the adoptive parent. This is the general rule followed by most jurisdictions. 2 Am.Jur.2d, Adoption § 106; 2 C.J.S. Adoption of Children § 63d; Annot., 43 A.L.R.2d 1183 (1955).

The Hewett case dealt with an intestate estate and the present case involves a testate estate. Glenna B. Blaine takes not as an heir of the testatrix by representation, but by virtue of being the living lineal descendant of her adopting father, Howard S. Baker, the named beneficiary. This factor was sufficient to make the Hewett doctrine inapplicable in First National Bank of Miami v. Bobcik, Fla.App.1961, 132 So.2d 299, cert. dismissed, Fla.1961, 136 So.2d 343. In the Bobcik case the adopted child was held to be a living descendant of his adopted father and entitled to take under the will of his adopted father's mother.

In the instant case the appellee does not 'inherit' the legacy from the testatrix. She takes as a lineal descendant of the legatee, by force of the statute, F.S.A. § 731.20. This is the position taken by other courts who have been presented with the question. 19 A.L.R.2d 1159, at page 1165.

For the above reasons we conclude the court was correct in holding the Hewett doctrine inapplicable.

In Re Levy's Estate, supra, is also inapplicable in that it involved the right of an adopted child to take from his collateral blood relative and did not consider the right of an adopted child to take by substitution from the collateral kindred of his adoptive parent. F.S.A. § 731.20 was not there involved.

In order to determine whether Glenna B. Blaine can take the legacy given to her adopted father, we must interpret the statutes involved and in so doing are directed to the decisions of other states.

Rauch v. Metz, Mo.1919, 212 S.W. 357 and In Re Martin's Will, (1928) 133 Misc. 80, 230 N.Y.S. 734, are cited as authority for the rule that an adopted child may not take under the anti-lapse statute . We have found that this view has also been taken in McLeod v. Andrews, 1946, 303 Ky. 46, 196 S.W.2d 473; Arnold v. Helmer, 1951, 327 Mass. 722, 100 N.E.2d 886; In Re Russell's Estate, 1925, 284 Pa. 164, 130 A. 319; 19 A.L.R.2d 1169.

In McLeod v. Andrews, Arnold v. Helmer and In Re Russell's Estate the statutes being construed referred to the 'issue' of the legatee, and are of little value inasmuch as our statute refers to 'lineal descendant,' the same wording as is used in the adoption statute.

In Re Martin's Estate, supra, is of little weight as that decision has been strongly criticized by other New York courts. In Re Walter's Estate, 1936, 270 N.Y. 201, 200 N.E. 786. The remaining case of Rauch v. Metz, supra, is likewise weak authority. The adoption statute in effect when this decision was rendered provided that (R.S.Mo.1909, § 1673) 'the child or children adopted shall have the same right against the person or persons executing the same, for support and maintenance and for proper and humane treatment, as a child has, by law, against lawful parents; * * * This provision shall not extend to other parties, but is wholly confined to parties executing the deed of adoption.'

This section bears no resemblance to the Florida adoption statute . The Missouri Act has been amended and now states: 'When a child is adopted in accordance with the provisions of this article, all legal relationships, and all rights and duties, between such child and its natural parents shall cease and determine. Said child shall thereafter be deemed and held to be for every purpose the child of its parent or parents by adoption, as fully as though born to them in lawful wedlock.' R.S.Mo.1929, § 14079, Rev.St.Mo.1939, § 9614, V . A.M.S. § 453.090. Apparently, the case of Rauch v. Metz, supra, is no longer law even in the State of Missouri. St. Louis Union Trust Co. v. Hill, 1934, 336 Mo. 17, 76 S.W.2d 685.

In the following cases a testator devised an estate to a beneficiary who predeceased the testator. In each case the beneficiary left an adopted child and in each it was held the adopted child took the share of the deceased adoptive parent. Dean v. Smith, 1938, 195 Ark. 614, 113 S.W.2d 485; Re Tibbetts' Estate, 1941, 48 Cal.App.2d 177, 119 P.2d 368; Re Harmount's Estate, 1949, 336 Ill.App. 322, 83 N.E.2d 756; McCune v. Oldham, 1932, 213 Iowa 1221, 240 N.W. 678; Denton v. Miller, 1922, 110 Kan. 292, 203 P. 693; Warren v. Prescott, 1892, 84 Me. 483, 24 A. 948, 17 L.R.A. 435; Headen v. Jackson, 1961, 255 N.C. 157, 120 S.E.2d 598; Hoellinger v. Molzhon, 1950, 77 N.D. 108, 41 N.W.2d 217, 19 A.L.R.2d 1147; Clark v . Clark, 1913, 76 N.H. 551, 85 A. 758; In Re Walter's Estate, supra; Smallwood v. Smallwood, 1936, 121 N.J.Eq. 126, 186 A. 775; Flynn v. Bredbeck, 1946, 147 Ohio St. 49, 68 N.E.2d 75; In Re Buell's Estate, 1941, 167 Or. 295, 117 P.2d 832; Industrial Trust Co. v. Taylor, 1943, 69 R.I. 153, 32 A.2d 269; Craft v. Blass, 1928, 8 Tenn.App. 498; In Re Estate of Holocombe, 1951, 259 Wis. 642, 49 N.W.2d 914.

Warren v. Prescott, supra, is a leading case on this question. The Maine statutes involved were alike in all material respects to the Florida Statutes referred to above. That court said:

'* * * There is no doubt that a child born in lawful wedlock can so take. But, in this particular, does an adopted child possess the same rights? We think so. * * * And,...