Brooks Bank & Trust Co. v. Rorabacher

• Decision Date: 06 March 1934
• Citation: 118 Conn. 202,171 A. 655
• Parties: BROOKS BANK & TRUST CO. v. RORABACHER.
• Court: Connecticut Supreme Court

171 A. 655

118 Conn. 202

BROOKS BANK & TRUST CO. v. RORABACHER.

Supreme Court of Errors of Connecticut.

March 6, 1934

Case Reserved from Superior Court, Litchfield County; Carl Foster Judge.

In the matter of the estate of Martha Alldis, deceased, wherein the Brooks Bank & Trust Company, guardian of Mary Lucretia Javery, filed claim, opposed by Charles Rorabacher individually and as administrator of the estate of Martha Alldis. From a decree of the court of probate ordering distribution of the estate, the guardian appealed to the superior court, which reserved questions to the Supreme Court of Errors.

Questions answered.

David Cramer, of Torrington, for appellant.

Charles P. Roraback, of Torrington, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

HINMAN, Judge.

The facts stipulated, for the purposes of this reservation are as follows: On December 26, 1870, James Alldis, of Torrington, by an agreement approved by the court of probate, adopted John Francis Prentice, a minor, who thereafter went by the name of J. Frank Alldis. The adoption agreement provided " that the said child shall have the same rights as to property and inheritance that he would have if he were his [James Alldis" own legitimate child." James Alldis died March 13, 1910; J. Frank Alldis died February 27, 1923, leaving two children surviving, Catherine Alldis Carothers and Mary Alldis Javery, as his only heirs at law. Mrs. Carothers died August 26, 1929, leaving a child, and Mrs. Javery died January 14, 1930, leaving a daughter, Mary Lucretia Javery, her only heir at law, of whose estate the appellant, the Brooks Bank & Trust Company, is guardian. The guardian claims that Mary Lucretia Javery, by virtue of the adoption a great grand daughter of James Alldis, is entitled to inherit from the estate of Martha Alldis, sister of James, and the child of Catherine Carothers also claims the same rights. Charles Rorabacher, individually and as administrator of the estate of Martha Alldis, and her other blood relatives, claim that Mary Lucretia Javery and the child of Catherine Carothers are not so entitled. The court of probate decreed that said children were not entitled to inherit from the estate of Martha Alldis, from which decree the Brooks Bank & Trust Company, as guardian, took an appeal. The questions upon which advice is desired are: (1) Whether the law in effect at the date of the approval of the adoption agreement or that in effect at the date of the death of Martha Alldis controls the rights of inheritance; and (2) whether the grandchildren of J. Frank Alldis, who are the great grandchildren of James Alldis, adoptive parent of J. Frank Alldis, are entitled to inherit from the estate of Martha Alldis, sister of James.

The right of adoption was not embodied in the common law of England or of those of the United States in which that common law was followed, but in 1846 the states began to enact statutes for the purpose of establishing, between a minor and one not his parent, legal obligations and duties attached to the natural relation of parent and child and conferring upon the person so adopted a capacity of succeeding to the property of his adopting parent or parents. Woodward's Appeal, 81 Conn. 152, 162, 164, 70 A. 453. In 1864 (Public Acts, c. 85) a Connecticut statute was passed providing that the parent or guardian of any child under the age of 14 years, or of any minor child over 14, with his written assent, might by written agreement " give in adoption such child [or minor] to any person," and that, upon approval of the agreement by the court of probate on prescribed notice and hearing, " such child, by such adoption shall thereupon, to all intents and purposes, become the legal child of the person by whom it shall be so adopted; and the person so adopting such child shall, to all intents and purposes, become the legal parent of the same, with all rights and duties subsisting between them, belonging and incident to a legitimate parent and child by blood relationship, except as may have been otherwise stipulated in the written agreement aforesaid; and provided, that such child shall only inherit estate from the person of the adopting parent." The provision just quoted was preserved verbatim in the 1866 Revision of the General Statutes (title 13, c. 4, § § 53, 54) except for the substitution of " but" for " and provided that," and was in effect at the date of adoption in the present case, December 26, 1870. In the Revision of 1875 (title 14, c. 4, § 2) the provision that " such child shall only inherit estate from the person of the adopting parent" is changed to " such child shall not, by virtue of such adoption, inherit estate, except from the adopting parent." In an act revising and compiling the probate laws (Public Acts 1885, c. 110) the provision concerning rights of inheritance of an adopted child was amended (page 485, § 66) to read as follows: " Such child by virtue of such adoption, shall inherit estate from its adopting parents or their relatives, the same as though it was the natural child of such adopting parents, and shall not inherit estate from its natural parents or their relatives. ***" This has since remained unchanged, appearing in section 472. General Statutes 1888, section 234, General Statutes 1902, section 4879, General Statutes 1918, section 4810, General Statutes 1930, and in that form was in effect both at the death of the adopting parent, James Alldis, in 1910, and at the death of his sister Martha in 1930.

The appellant argues that, even under the law in effect at the date of adoption (1870), the adopted child, J. Frank Alldis, and through him his children and grandchildren, would have a right of inheritance not only from the adopting parent, but also from his collateral relatives. We are unable to adopt that contention. A right to inherit, through an adopting parent, from collateral kin of the latter, is not to be readily implied from the relation, and is to be recognized only if expressly conferred. A stranger to the adoption proceedings who has never recognized the existence of the artificial relation created thereby should not have his property diverted from the natural course of discent without a clear expression of such intent. Kettell v. Baxter, 50 Misc. 428, 100 N.Y.S. 529; Hockaday v. Lynn, 200 Mo. 456, 98 S.W. 585, 8 L.R.A. (N. S.) 117, 118 Am.St.Rep. 672, 9 Ann.Cas. 775; In re Bradley, 185 Wis. 393, 201 N.W. 973, 38 A.L.R. S.; 1 R.C.L. 621. The provision in our act of 1864, that an adopted child " shall only inherit estate from the person of the adopting parent," clearly evinces in intent to exclude a right of inheritance from relatives of such adopting parent.

It is equally plain, and the appellee concedes, that the intent and effect of the 1885 amendment was to so extend the rights of an adopted child as to include inheritance from a collateral relative of the adopting parent. As was said in Estate of Bradley, 185 Wis. 393, 403, 201 N.W. 973, 977, 38 A.L.R. 1 of a New Hampshire statute (Pub. St. 1901, c. 181, § 5) providing that an adopted child " shall bear the same relation to his adopting parents and their kindred in respect to the inheritance of...