Brown v. Finley

• Decision Date: 17 November 1908
• Citation: 157 Ala. 424,47 So. 577
• Parties: BROWN v. FINLEY.
• Court: Alabama Supreme Court

47 So. 577

157 Ala. 424

BROWN v. FINLEY.

Supreme Court of Alabama

November 17, 1908

Appeal from Probate Court, Calhoun County; Emmett F. Crook, Judge.

Action between James Y. Brown, administrator of the estate of James Finley, deceased, and Alexander Finley. From a judgment for Alexander Finley, the administrator appeals. Affirmed.

A. Leo Oberdorfer and L. M. Washington, for appellant.

Willett & Willett, for appellee.

TYSON C.J.

James Finley, now deceased, in 1903 by proper procedure under the statute of the state of Georgia adopted as his child James Jordan, an infant of tender years, changing his name to James Finley, Jr. At that time he was domiciled in that state. The child and its mother also lived in that state. In 1906 James Finley died unmarried, leaving no lawful children born in wedlock, no father or mother, and no brothers or sisters, or representatives of brothers or sisters, except his brother Alexander Finley, the appellee. At the time of Finley's death he was domiciled in the city of Atlanta, Ga., and left real estate in Georgia, Tennessee, Florida, and Alabama, but no personalty in this state. It is under and by virtue of the adoption proceedings had in Georgia that James Finley, Jr. now claims the lands belonging to the estate of the decedent in this state, to the exclusion of the brother, Alexander Finley.

Under our statute of descents, had James Finley, Jr., been born unto James Finley in lawful wedlock, or, if out of wedlock he had been legitimated under and in accordance with the statutes of this state, then he would have inherited the lands, to the exclusion of Alexander Finley; and it may be had he been adopted in this state in pursuance to the statute authorizing the adoption of children, the lands would have descended to him. But his adoption, being under the statute of another state which conferred upon him the right of inheritance of the property of the adopting parent in that state, does not confer upon him that right in this state. The statute has no extraterritorial operation. This is the principle which controlled the decision in Lingen v. Lingen, 45 Ala. 410. In that case the child claiming the right of inheritance was legitimated by its father in accordance with the laws of France. In France it became and was his legitimate child and entitled to inherit its father's property in that country. Notwithstanding this, this court, following Birthwhistle v. Vardill, 5 Barn. & C. 438, and Smith v. Derr's Adm'r, 34 Pa. 126, 75 Am. Dec. 641, held that it could not inherit the property of its father in this state.

But it is insisted that this case, while properly decided, is distinguishable from the one in hand, but, if not, should be overruled, because opposed to the great weight of authority. On principle it cannot be distinguished. The legitimation of...