Boaz v. Swinney

• Decision Date: 12 January 1909
• Docket Number: 15,769
• Citation: 79 Kan. 332,99 P. 621
• Parties: HENRY BOAZ et al. v. IRENE BOAZ SWINNEY et al
• Court: Kansas Supreme Court

99 P. 621

79 Kan. 332

HENRY BOAZ et al. v. IRENE BOAZ SWINNEY et al

No. 15,769

Supreme Court of Kansas

January 12, 1909

Decided January, 1909.

Error from Jewell district court; RICHARD M. PICKLER, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DESCENTS AND DISTRIBUTIONS--Adopted Child. An adopted child has no right of inheritance from its adoptive parents other than those given by the law under which it is adopted.

2. DESCENTS AND DISTRIBUTIONS--Limitation of Adopted Child's Right of Inheritance. Where the law under which a child is adopted limits its right of inheritance to the estate of the adoptive parents, such child can not, after the death of its adoptive father, inherit from the deceased brother of such adoptive father or his other collateral kindred.

3. DESCENTS AND DISTRIBUTIONS--Same. The law of the state of Illinois providing for the adoption of minors which took effect April 22, 1867, in defining the rights of minors so adopted, reads: "And thence-forward the relation between such person and the adopted child shall be, as to their legal rights and liabilities, the same as if the relation of parent and child existed between them, except that the adopted father or mother shall never inherit from the child; but to all other persons the adopted child shall stand related as if no such act of adoption had been taken." (Laws of Illinois, 1867, p. 134.) Held, that the right of inheritance given to an adopted child under this law is limited to its adoptive parents, and it can not take from the estate of their collateral kindred.

J. C Postlethwaite, and Robert C. Postlethwaite, for plaintiffs in error.

Frank M. Porter, and M. H. Burnham, for defendants in error.

OPINION

GRAVES, J.:

This is a suit for partition. The only controversy arises over the interest of defendant in error Irene Boaz Swinney, who claims to be an heir by adoption. The suit was commenced in the district court of Jewell county, where she was held to have an interest in the land, and the defendants bring the case here for review.

Irene Boaz Swinney was adopted as the child of Asa Boaz and his wife, Mary G. Boaz, under the law of the state of Illinois. The effect of such adoption, as stated in the law of that state, so far as necessary to be considered here, reads:

"And thence forward the relation between such person and the adopted child shall be, as to their legal rights and liabilities, the same as if the relation of parent and child existed between them, except that the adopted father or mother shall never inherit from the child; but to all other persons the adopted child shall stand related as if no such act of adoption had been taken." (Laws of Illinois, 1867, p. 133.)

This statute fixes her legal status and defines her future relationship to her adoptive parents, and this status should be recognized and enforced here, so far at least as it does not conflict with some law or policy of this state. ( Gray v. Holmes, 57 Kan. 217, 45 P. 596, 33 L. R. A. 207; Van Matre v. Sankey et al., 148 Ill. 536, 36 N.E. 628, 39 Am. St. Rep. 196, 23 L. R. A. 665.)

The land in controversy was formerly owned by a brother of Irene Boaz Swinney's adoptive father, who died intestate leaving neither wife, descendants nor parents. It is conceded that if Asa Boaz had been living he would have inherited a portion of such deceased brother's estate, but it is insisted that, being dead, his child by adoption does not inherit through him from his relatives, as one of his natural children would. This presents the only legal question involved in the controversy. The decided cases are not entirely in harmony upon this question, but the difference between the decisions seems to arise more because of a want of uniformity in ...