Batchelder v. Walworth

• Decision Date: 08 January 1912
• Citation: 85 Vt. 322,82 A. 7
• Parties: BATCHELDER v. WALWORTH et al.
• Court: Vermont Supreme Court

82 A. 7

85 Vt. 322

BATCHELDER

v. WALWORTH et al.

Supreme Court of Vermont. Bennington.

Jan. 8, 1912.

Exceptions from Bennington County Court; Eleazer L. Waterman, Judge.

Action by J. K. Batchelder, as guardian of Howard M. Scott, against Jennie Walworth and others. From a judgment for plaintiff, distributing the estate of George W. Walworth, deceased, defendants except. Affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Batchelder & Bates, for plaintiff.

Holden & Healy, for defendants.

WATSON, J. On the 18th day of April. 1909, George W. Walworth died intestate at Bennington, this state, the place of his residence, leaving a solvent estate in this state consisting mostly of real property. He left surviving him a wife, Jennie L. Walworth, and several brothers and sisters (the exceptants in this case), but no father or mother. On January 15, 1885, by an instrument of adoption properly executed, filed, and recorded pursuant to the statute (R. L. c. 127), the intestate, then single, duly and legally adopted one Maggie Mitchell, then a minor, as his heir at law. Subsequent to such adoption, and on October 17, 1901, the intestate married Jennie L., she then knowing of said adoption, but at no time assenting or dissenting to or from the same. Subsequent to her adoption Maggie married, and after the marriage of her adoptive father and within his lifetime she died leaving a son, Howard M. Scott, born in marriage, surviving her. Howard M., now a minor, by his guardian, claims in consequence of the adoption of his mother to be an heir of the intestate by right of representation, and as such entitled to a distributive share of his estate. No children were ever born to the intestate. The court below decreed pro forma that Howard M. Is an heir at law of the intestate, and that he is entitled to two-thirds of the intestate's estate remaining for distribution, the widow to the remaining one-third, and that the brothers and sisters of the intestate take nothing. To this decree exceptions were severally taken by the widow, the brothers, and sisters.

By Laws of 1880, No. 137, § 1, "any person other than a married woman, of full age, and sound mind, and any husband and wife, may adopt any other person as his or their heir at law with or without change of name of the person adopted." Sections 2, 3, 4, and 5 prescribe the method of procedure, and the form of the instrument to be executed to effect such adoption. And by section 6 "such instrument shall, if it appears to the probate court that the provisions of the statute have been complied with, be recorded in the probate office where it is filed. And upon the proper execution and filing of such an instrument the same rights, duties and obligations and the same right of inheritance shall exist between the parties as though the person adopted had been the legitimate child of the person or persons making the adoption, except that the person so adopted shall not be capable of taking property expressly limited to the heirs of the body or bodies of the parties making such adoption. And the natural parents of a minor shall be deprived, by the adoption, of all legal rights as respects the control of such minor, and such minor shall be freed from all obligation of obedience and maintenance as respects his natural parents." The law of these sections appears in R. L. 2536-2541, without change, and was in force at the time of the making of the adoption hereinbefore mentioned.

The question, then, is whether the child of the adopted daughter deceased is entitled to inherit through her by right of representation a share in the adoptive father's intestate estate. This question, now for the first time before his court, is not on the face of the statute altogether free from doubt. The doctrine of adoption was unknown to the common law of England, and in this country, in states whose jurisprudence is based exclusively on that system, it exists only by statute. Matter of Thorne, 155 N. Y. 140, 49 N. E. 661; Burrage v. Briggs, 120 Mass. 103; Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321; Morrison v. Estate of Sessions, 70 Mich. 297, 38 N. W. 249, 14 Am. St. Rep. 500. It has, however, been recognized by the civil law from the earliest days of its existence, and on the provisions of that law our statute, as well as largely the statutes of adoption in the different states of the Union, has been founded. It is therefore reasonable and proper to look to the civil law for the proper definition of the term, and in aid of the interpretation of the provisions in question. Powers v. Hafley, 85 Ky. 671, 4 S. W. 683, 9 Ky. Law Rep. 369; Gray v. Holmes, 57 Kan. 217, 45 Pac. 596, 33 L. R. A. 207; Humphries v. Davis, 100 Ind. 274, 50 Am. Rep. 788. In the case last cited, where the construction of an adoption statute was under consideration, the court said: "A statute is not to be construed as if it stood solitary and alone, complete and perfect in itself, and isolated from all other laws. It is not to be expected that a statute which takes its place in a general system of jurisprudence shall be so perfect as to require no support from the rules and statutes of the system of which it becomes a part, or so clear in all its terms as to furnish in itself all the light needed for its construction. It is proper to look to other statutes, to the rules of the common law, to the sources from which the statute was derived, to the general principles of equity, to the object of the statute, and to the condition of affairs existing when the statute was adopted."

By the civil law before the time of Justinian, the effect of adoption was to place the person adopted in the same position he would have held had he been born a son of the adopter. All the property of the adopted son belonged to the adoptive father. The adoptive son was heir to his adoptive father, if intestate, bore his name, etc., and shared the sacred rites of the family he entered. It sometimes happened under this law that a son lost the succession to his own father by being adopted, and to his adoptive father by a subsequent emancipation. To remedy this, Justinian provided that the son given in adoption to a stranger should be in the same position to his own father as before, but gained by adoption the succession to his adoptive father if he die Intestate. And by that law the adopted son is declared "assimilated, in many points, to a son born in lawful matrimony." Sandars' Justinian, 113, 115, 119. Lord Mackenzie, in his work on the Roman Law, p. 131, says that: "By the ancient civil law adoption created the relation of father and son for all practical purposes, just as if the adopted son were born of the blood of the adoptive father in lawful marriage. The adopted child quitted entirely his own family and entered the family of his adopter, passing under the paternal power of his new father, and acquiring the capacity to inherit through him." The same author says: "Augustus did not adopt Tiberius who succeeded him in the empire, till Tiberius had adopted his nephew Germanicus; and the effect of this was that Tiberius became the son and Germanicus the grandson of Augustus at the same time." In Vidal v. Commagere, 13 La. Ann. 516, a leading case on the civil law pertaining to the subject, the minor child was adopted under an act of the Legislature authorizing Vidal and wife "to adopt" her. The controversy was between the nephews and nieces of the deceased adopting wife and the adopted child for the property of the succession of said wife. Vidal and wife were simply authorized "to adopt" the child, naming her, "provided the adoption be executed" within a specified time. The court said the whole question was one of interpretation: What rights did the Legislature intend to confer upon the child by authorizing Vidal and wife to adopt her? "What was meant by adoption?" The court said: "Under the Roman law, the person adopted entered into the family, and came under the power of the person adopting him. And the effect was such that the person adopted stood, not only himself in relation of child to him adopting, but his children became the grandchildren of such person."

It was held "that, as by the common acceptation of the word 'adoption' the relationship of parent and child with all the consequences of that relationship is understood, as such was the legal meaning of the word under the former laws of Louisiana, and as such is its acceptation among civilians and those conversant with the sources of our laws, we cannot say that the Legislature used the word in a more restrained sense, in a sense not understood in common parlance, nor given in any dictionary, and not known in any system of laws. As by the former laws of Louisiana the person adopted bore the relation of child to the person adopting, and inherited his estate, so we think the Legislature, by the solemn expression of its will, intended to confer the same right upon the plaintiff to the estate of those who were authorized to adopt her." By the decree it was ordered that she be recognized as the sole heir of the deceased, and be put into the possession of all the property of the succession. Mr. Holland, in his Elements of Jurisprudence, says that parental right extends to the custody and control of children, and to the produce of their labor till they arrive at years of discretion; and that it is acquired on the birth, and also under some systems, on the adoption of a child. Holl. Jur. (10th Ed.) 172. In Ross v. Ross, cited above, the question was whether a child legally adopted in Pennsylvania and thus entitled to inherit real estate there having with the adopting parent become resident in Massachusetts could inherit the real estate of such parent in the latter state upon his dying there intestate. Holding that generally the law of the domicile of the parties is the rule which governs the creation of the status of a child by adoption, it became necessary for the...