Delano v. Bruerton

• Decision Date: 01 March 1889
• Citation: 20 N.E. 308,148 Mass. 619
• Parties: DELANO v. BRUERTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

148 Mass. 619

20 N.E. 308

DELANO v. BRUERTON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1889

COUNSEL

Augustus

Russ and D.A. Dorr, for appellants.

G.L Huntress and Homer Albers, for the administrator.

OPINION

MORTON, C.J.

Ivory G. Curtis died intestate, leaving as his heirs at law and distributees five daughters, and a grandson, Henry Curtis the only child of a deceased son, Henry G. Curtis. In 1879 after the death of his son, Henry G. Curtis, the intestate, adopted his grandson, Henry Curtis, under the statutes of 1876, c. 213, re-enacted in Pub.St. c. 148. The question in this case is as to the distribution of his personal estate. One-third goes to his widow. Of the remaining two-thirds it is claimed on behalf of Henry Curtis that he is entitled to one-seventh part as an adopted son, and also one-seventh part by right of representation of his father. The statute provides that after the decree of adoption all the rights, duties, responsibilities, and other legal consequences of the natural relation of child and parent, except as regards succession to property, shall exist between the child and the adopting parent, and shall, except as regards marriage, incest, or cohabitation, terminate between the adopted person and his natural parents and kindred. By the seventh section it is provided that "as to the succession to property a person adopted in accordance with the provisions of this chapter shall take the same share of property which the adopting parent could have devised by will that he would have taken if born to such parent in lawful wedlock, and he shall stand in regard to the legal descendants, but to no other of the kindred of such parent, in the same position as if so born to him." Pub.St. c. 148, §§ 6, 7.

The intent of the statute was to put an adopted child, for all legal purposes, with certain carefully defined exceptions, in the place of a natural child, and to give him the same rights. If the statute had stopped here it would seem clear that Henry Curtis would in regard to the succession to the property of his adopted parent stand as a son, and that his rights to succession as a grandson would be merged in his greater rights as a son. But the statute contains a further provision at the close of the seventh section that "no person shall, by being adopted, lose his right to inherit from his natural parents or kindred." Probably the legislature contemplated, what is in fact true, that most of the children adopted would be infants incapable of protecting their rights and of appreciating the effect of the transaction, and it was just to provide that they should not without their intelligent consent be deprived of the right to inherit the property of their natural parents or kindred. As applied to most cases the...