Clark v. Clark
| Decision Date | 07 January 1913 |
| Citation | 76 N.H. 551,85 A. 758 |
| Parties | CLARK v. CLARK et al. |
| Court | New Hampshire Supreme Court |
Transferred from Superior Court, Hillsborough County; Pike, Judge.
Petition by Gertrude A. Clark, guardian, against Hazel M. Clark and another for advice as to the rights of petitioner's wards. Facts found, and case transferred from superior court Case discharged.
Jones, Warren, Wilson & Manning, of Manchester, for petitioner.
George I. Haselton, of Manchester, for defendant Hazel M. Clark. Harry W. Spaulding, of Manchester, for defendant Leola M. Clark.
The legatee, Charles C. Clark, died during the lifetime of the testator, leaving a natural daughter and an adopted one. The guardian of the two daughters seeks advice as to the rights of her wards in respect to the legacy.
The statute of adoption was enacted in 1862 (Laws 1862, c. 2603), and contained, in substance, the provision here relied upon: "The child so adopted shall bear the same relation to his adopting parents and their kindred in respect to the inheritance of property and all other incidents of the relation of parent and child as he would if he were the natural child of such parents, except he shall not take property expressly limited to the heirs of the body or bodies of the adopting parents." P. S. c. 181, § 5.
At the time this statute was enacted, the statute of wills contained its present provision touching lapsed legacies: "The heirs in the descending line of a legatee or devisee, deceased before the testator, shall take the estate bequeathed or devised in the same manner the legatee or devisee would have taken it if he had survived." P. S. c. 186, § 12. The question is whether the adopted daughter is an heir in the descending line, within the meaning of this act.
While it is true that in the present instance the claimed right of the adopted child is not an inheritance, but rather a statutory extension of the law as to who are beneficiaries under a will, enacted for the better carrying out of the testator's intention (Campbell v. Clark, 64 N. H. 328, 10 Atl. 702), yet the statutory test for the right to so take is the quality of heirship in the descending line. It is settled that in this state the adoption of a child is not an equivalent for the birth of issue in determining the rights of a surviving husband or wife. Murdock v. Murdock, 74 N. H. 77, 65 Atl. 392; Morse v. Osborne, 75 N. H. 487, 77 Atl. 403, 30 L. R. A. (N. S.) 914, Ann. Cas. 1912A, 324. But these cases are not determinative of the present question.
The statute giving the right here claimed being in force when that governing adoption of children was enacted, the question is whether the Legislature used language broad enough to manifest an intent that adopted children should become heirs in the descending line, within the meaning of the earlier statute. This precise...
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Thompson, In re
...child are based on legislative intendment read into the will. Hartwell v. Tefft, 19 R.I. 644, 35 A. 882, 34 L.R.A. 500; Clark v. Clark, 76 N.H. 551, 85 A. 758; Batchelder v. Walworth, 85 Vt. 322, 82 A. 7, 37 L.R.A. (N.S.) 849; Mooney v. Tolles, 111 Conn. 1, 149 A. 515, 70 A.L.R. 608. Ansoni......
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Baker's Estate, In re, 4455
...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......
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In re Buell's Estate
...In Re Foster's Estate, 108 Misc. 604, 177 N.Y. Supp. 827 (1919); Dean v. Smith, 195 Ark. 614, 113 S.W. (2d) 485 (1938); Clark v. Clark, 76 N.H. 551, 85 A. 758 (1913); Smallwood v. Smallwood, 121 N.J. Eq. 126, 186 A. 775 (1936). There were slight differences in the relevant statutes under wh......
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Young v. Bridges
...from his natural kindred, such property shall be distributed as if there had been no decree of adoption." It is said in Clark v. Clark, 76 N. H. 551, 552, 85 A. 758, 759: "While it was not the purpose to make adoption in all respects equivalent to the birth of a natural child, it was to hav......