Dreyer v. Gladys Schrick

• Decision Date: 08 November 1919
• Docket Number: 22,233
• Citation: 185 P. 30,105 Kan. 495
• Parties: J. H. DREYER, Appellee, v. GLADYS SCHRICK (formerly GLADYS MOORE), a Minor, Appellant, JAMES A. MCCLURE, as Administrator of the Estate of JOSEPH BEYER, Deceased, Appellee
• Court: Kansas Supreme Court

185 P. 30

105 Kan. 495

J. H. DREYER, Appellee, v. GLADYS SCHRICK (formerly GLADYS MOORE), a Minor, Appellant, JAMES A. MCCLURE, as Administrator of the Estate of JOSEPH BEYER, Deceased, Appellee

No. 22,233

Supreme Court of Kansas

November 8, 1919

Decided July, 1919.

Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. MINOR -- Adopted by Testator -- Revokes Previously Executed Will. Adoption of a child by a testator revokes his previously executed will to the same extent as birth of a child.

2. SAME--Second Adoption--Child Inherits from First Foster Parent. A child by adoption, who is adopted the second time, inherits from his first foster parent.

H. T. Phinney, of Oskaloosa, and Oscar Raines, of Topeka, for the appellant.

D. H. Branaman, of Topeka, for appellee J. H. Dreyer.

Lee Monroe, and C. M. Monroe, both of Topeka, for appellee James A. McClure, administrator.

OPINION

BURCH, J.:

The action was commenced as one to quiet title to real estate derived through the will of Theresa Beyer, deceased. The issues were broadened to include conflicting claims to personal estate left by Joseph Beyer, her husband, whose death occurred subsequently to that of his wife. The defendant, Gladys Schrick, asserted an interest in all the property involved, by virtue of her adoption by the Beyers. The adoption occurred after the execution of Theresa Beyer's will, in which the defendant was not provided for. After adoption by the Beyers, and while they were living, the defendant, who is still a minor, was legally and formally adopted by Charles and Mary Schrick, her present foster parents.

The question presented is one of statutory interpretation. The statute relating to adoption of minor children contains the following sections:

"Any person may appear in the probate court of the county of his or her residence and offer to adopt any minor child or children as his or her own. Thereupon the court shall investigate the matter, and shall require that the minor appear or be brought before the court, and shall require that such of the minor's parents as are living in the state, and the guardian (if any) appear also in court, . . . and if the probate court shall find that the minor and the living parents of such minor and the guardian (if any) consent freely and voluntarily to such adoption, the said court shall record its proceedings in the journal, declaring each such minor child to be the child and heir of such person so adopting such minor; and then and thereafter such person so adopting such minor shall be entitled to exercise any and all the rights of a parent, and be subject to all the liabilities of that relation. . . .

"Minor children adopted as aforesaid shall assume the surname of the person by whom they are adopted, and shall be entitled to the same rights of person and property as children or heirs-at-law of the person thus adopting them." (Gen. Stat. 1915, §§ 6362, 6363.)

The statute of wills contains the following section:

"When a testator at the time of executing his will shall have a child absent and reported to be dead, or having a child at the time of executing the will shall afterwards have a child who is not provided for in the will, the absent child or the child born after the execution of the will shall take the same share of the estate, both real and personal, that it would have been entitled to if the testator had died intestate, toward raising which portion the devisees and legatees shall equally contribute in proportion to the value of what they shall respectively receive under the will, unless in consequence of a specific devise or bequest, or of some other provision in the will, a different apportionment among the devisees and legatees shall be found necessary, in order to give effect to the intention of the testator as to that part of estate which shall pass by the will." (Gen. Stat. 1915, § 11795.)

The statute of descents and distributions contains the following section:

"Subject to the rights and charges hereinbefore contemplated, the remaining estate of which the decedent died seized shall, in the absence of other arrangements by will, descend in equal shares to his children surviving him, and the living issue, if any, of prior deceased children; but such issue shall collectively inherit only that share to which their parent would have been entitled had he been living." (Gen. Stat. 1915, § 3841.)

With respect to the claim of the adopted child to a share of the property derived by will, the argument on one side may be briefly summarized as follows: The statute of wills covers the subject of the revocation of wills. The section quoted treats of the subsequent appearance of prospective heirs not provided for in a will, and makes revocation a consequence of the appearance of children, and of children of two classes only--those absent and reported dead, and those born. Gladys was not in fact the child of the Beyers, whatever her legal relation to them may have been. That relation was created by statute and judgment of the probate court. She was not born to them, and consequently she cannot qualify under the provision in favor of after-born children. To permit her to do so would require an amendment of the statute, which the legislature has not seen fit to make. This icily logical argument, based on the letter of the law, which killeth, is supported by judicial decisions from several states: Russell v. Russell, 84 Ala. 48, 3 So. 900; Davis v. Fogle et al., 124 Ind. 41, 23 N.E. 860; In re Gregory's Estate, 15 Misc. 407, 37 N.Y.S. 925; Goldstein v. Hammell, 236 Pa. 305, 84 A. 772; Evans v. Evans, (Tex. Civ. App.) 186 S.W. 815.

Statutory peculiarities may account, in part, for some of these decisions. In Alabama a man may make a child capable of inheriting from him by executing and acknowledging a declaration to that effect and filing it with the probate court. The statute seems to recognize a clear difference between the status or relation of parent and child and the right of inheritance, and does not, considered alone, attach to adoption all the legal incidents and consequences of the natural relation. In the case cited from that state the court said:

"The word 'inheriting' is twice employed in our statute, and, it would seem, was placed there ex industria. The legislature did not deem it necessary to make any provision in case a will was made; for in such case, the testator usually directs in what manner his property shall go after his death. A will, unless it contravenes some provision of positive law, or some principle of public policy, is the law of the succession." (Russell v. Russell, 84 Ala. 48, 51, 3 So. 900.)

In Indiana the statute of wills made provision for after-born legitimate issue. It contained the further provision that no will should be revoked except as provided for in the act, unless the testator should destroy or mutilate the will with intent to revoke, or make a new will. In the case cited from that state the court said:

"It is held in Runkle v. Gates, 11 Ind. 95, that to revoke a will the requirements of the statute must be strictly pursued. It is manifestly true no act, thing, or deed will revoke a will once duly executed, unless it comes within the provisions of the statute providing for the revocation of wills. To hold that the adoption of a child revokes the will, it is necessary to interpolate into section 2560, after the words 'legitimate issue,' the words 'or shall adopt a child'; or words to the same effect, for the words of the statute are plain and explicit; they are: 'If after the making of the will the testator shall have born to him legitimate issue.' It would be legislation, and enacting a statute to so construe it." (Davis v. Fogle et al., 124 Ind. 41, 45, 23 N.E. 860.)

In Pennsylvania after-born children were provided for by an act of the year 1833. At that time there was no adoption statute, and adoption was unknown to the common law. The court held that the rights of a child and heir conferred on an adopted child by the later adoption statute did not have the effect to put such a child in all respects in the relation of a child in fact.

In Texas a "legal heir" may be "adopted" by a...