Estate of Carlton, In re
| Citation | 378 So.2d 1212 |
| Decision Date | 08 March 1979 |
| Docket Number | No. 51413,51413 |
| Parties | In re ESTATE of Perry CARLTON, Deceased. Alberta Carlton HAYES et al., Petitioners, v. Lucy Jane Carlton ROGERS, Respondent. |
| Court | United States State Supreme Court of Florida |
John T. Brennan of Brennan, McAliley, Albury & Hayskar, Fort Pierce, B. K. Roberts of Roberts, Miller, Baggett & LaFace, Tallahassee, for petitioners.
Robert E. Jackson of Jackson & Clem, Vero Beach, for respondent.
The Petition for Writ of Certiorari reflected probable jurisdiction in this Court. We issued the Writ and have heard argument of the parties. After hearing argument and upon further consideration of the matter (See 348 So.2d 896 (Fla.App.)) we have determined that the Court is without jurisdiction. Therefore, the Writ must be and is hereby discharged and the Petition for Writ of Certiorari is dismissed.
It is so ordered.
I dissent from the majority.
Justice James Alderman, while a circuit judge, found that Lucy Rogers, the adopted daughter of the intestate's deceased brother, Lindley Carlton, was not an heir at law of the intestate. The order contained the following:
The legal issue which the Court must determine is whether Mrs. Rogers is an heir-at-law of Perry Carlton, by virtue of her adoption by Perry Carlton's brother. This question must be determined as of April 4, 1970, because the rights of the heirs became vested and fixed upon that date.
On April 4, 1970, the Florida Probate Law, Florida Statutes, Section 731.30, provided in part as follows:
"An adopted child, whether adopted under the laws of Florida, or of any other state or country, shall be an heir at law, and for the purpose of inheritance shall be regarded as a lineal descendant of his adopting parents . . ."
At that time, the Florida Adoption Law, Florida Statutes, Section 63.151, also provided in part as follows:
"By any judgment or decree of adoption the child shall be the child and legal heir of the adopting parent or parents, entitled to all rights and privileges and subject to all obligations, of a child born to such parent or parents in lawful wedlock."
It can reasonably be argued from the statutory language quoted above, that the Legislature intended to place an adoptive child within his or her adoptive family on the same basis as a natural child. It may also reasonably be contended that this statutory language, when read in conjunction with Florida Statutes, Section 731.23, which specifies the mode of intestate succession, would allow inheritance between an adoptee and the full range of his or her adoptive kindred.
However, the Florida Supreme Court has taken a different view. In the case of In re Hewett's Estate, (153 Fla. 137,) 13 So.2d 904, Fla. (1943), the Court construing Section 731.30, Florida Statutes (1941), specifically held that within the adoptive family, intestate succession is strictly limited to inheritance by and from the adoptee and his or her adoptive parents. The only difference in the Statute, from 1943 to 1970, is that it was amended to allow inheritance by and from the adoptee and the other natural and adoptive children of the adoptive parent or parents.
In Hewett, the question was whether the adopted daughter of a first cousin of the deceased was entitled to share in the estate to the same extent that her adoptive father would have shared had he been living. The Court held that she could not; that an adoptee could not inherit by intestacy from any other adoptive kindred other than his or her adoptive parents.
Exactly the same legal point is presented in the instant case where the question is whether Mrs. Rogers, the adopted daughter of Perry Carlton's brother, is entitled to share in his estate to the same extent that her adoptive father would have shared had he been living. Under the holding of the Supreme Court in the Hewett case, she would not.
The district court of appeal reviewed this order and attempted to distinguish Hewett, supra, observing that the claimant in Hewett, though an heir-at-law and lineal descendant of his adopted father, could not claim to be a descendant of his adopted father's mother. The court distinguished Hewett because in the case sub judice the claimant was a descendant of the deceased brother of the intestate. She was therefore a lineal descendant of her adopted parent and entitled to share in the estate.
In Hewett, this Court said the claimant could not participate in the estate of the ancestors, "or other blood kin," Id. 13 So.2d at 907, but the district court in the case sub judice held the claimant could participate in the estate of the blood kin. This is clear conflict.
The fact that inclusion of the "blood kin" in the rule enunciated by the Hewett court may be considered dictum does not prevent On the merits, I would adopt the reasoning of the Court in Hewett, when the Court said:
the Court from taking jurisdiction. Twomey v. Clausohm, 234 So.2d 338 (Fla.1970).
We might well say that what the legislature mainly had in mind in drafting this section was the extent and quality of an adopted child's inheritance from both its adopting parents and its natural parents, and the reciprocal right of inheritance from the adopted child which latter right was given exclusively to the adopting parents, just the same as if the adopted child were "for the purpose of inheritance" regarded "as the lineal descendant of its adopting parents", which adopting parents assume the burden and legal duty of raising, training, educating and supporting the adopted child, and thus relieving the blood parents of this burden and expense.
This statute is very liberal in its provisions in behalf of the adopted child. Such child inherits from its adopting parents as if it were their own natural child, and likewise inherits from its natural parents. Why should the legislature be (Construed ) to have gone further and intended, by court-imposed implication, to give the adopted child the right to inherit from the adopting parents' ancestors Or other blood kin ? (Emphasis added.) The legislature should not be construed to have intended this unless the language of the statute makes it plain that such was the legislative intent which we do not think it does. The statute says: "An adopted child * * * shall be an heir at law, and for the purpose of inheritance be regarded as a lineal descendant of Its adopting parents * * *." So the words "heir at law" and "for the purpose of inheritance be regarded as a lineal descendant" are all limited and qualified by the words "of its adopting parents". We would be going too far if we should expand the language of this sentence to read: "of its adopting parents and their ancestors."
153 Fla. 137, 13 So.2d 904, 906-07 (1943).
The ruling of Hewett has, in effect, been reaffirmed in subsequent decisions of this Court and district courts of appeal that either followed it or distinguished it on the facts. Thus, in In re Poole's Estate, 153 Fla. 610, 15 So.2d 323 (1943), this Court relied on Hewett in ruling that the next of kin of the deceased wife of an intestate decedent who died without lineal descendants or blood relatives were entitled to inherit his estate rather than his adoptive cousins. And in In re Levy's Estate, 141 So.2d 803, 804 (Fla.2d DCA 1962), by ruling that section 731.30 did not cut off the preexisting right of an adopted child to inherit from collateral Blood kindred, the Court reaffirmed the rule of Hewett that "the word 'descendants' connotes those persons who are in the blood line of the ancestor" and that strangers who are adopted into the family "have only such added rights of inheritance as are given by statute." The Court noted also that the 1953 amendment to section 731.30, enacted after the decision in Hewett,
would not change the result of that case. It does enhance the inheritance rights of an adoptee to permit him to inherit from his adoptive brothers and sisters but no further.
141 So.2d at 805. In re Levy's Estate, supra, was considered by the Court in Gessner v. Powell, 238 So.2d 101 (Fla.1970), in disposing of an alleged conflict between the decision in that case and that of a district court of appeal ruling that an adopted minor child had no cause of action for the wrongful death of his natural father. In discharging the writ because no conflict, in fact, existed, this Court said:
The statement in In re Levy, supra, that the adoption statute does not "limit or take away rights already in existence" must be interpreted in context, namely, with respect to the right of adoptees to inherit from blood relatives As well as from their adoptive parents and adoptive brothers and sisters as expressly authorized by § 731.30, Fla.Stat.1969.
Gessner v. Powell, 238 So.2d at 102. (Emphasis supplied). Most recently, in In re The following appears in Atkinson on Wills, section 23 at 89 (2d ed. 1953):
Estate of Wight, 263 So.2d 258 (Fla.2d DCA 1972), the trial court's denial of the right of an adopted child to inherit from an intestate adoptive cousin was per curiam affirmed on authority of Hewett.
Most courts have not been so liberal to the adopted child with respect to his inheritance from the ancestors or collateral kin of the predeceased adoptive parent. Thus, when intestate left a niece of the blood of one brother and a nephew by adoption of another brother, the latter took no interest in the estate. The theory of this decision is that while one may make a child his own by adoption, he cannot make him the relative of other persons by the same process. No doubt this is the prevailing view.
Decisions involving the right of an adopted child to inherit under the will of an adoptive parent's ancestor or other...
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Ryals v. Pigott
...rulings ... were not as favorable as [the party] had desired would subvert the purpose of the waiver provision."); In re Estate of Carlton, 378 So.2d 1212, 1218 (Fla.1979) ("Allowing a party to request disqualification after a decision has been rendered by the Court provides a second opport......
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State v. Allen
...that its procedural treatment of requests for disqualification of a justice had not always been consistent.43 In In re Estate of Carlton, 378 So.2d 1212, 1216-17 (Fla.1979), the Court "receded" from earlier cases and adopted what it called the "modern" view that each justice must determine ......
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Lewis v. Green
...cert. dismissed, 136 So.2d 343 (Fla.1961). See also In re Estate of Carlton, 348 So.2d 896 (Fla. 4th DCA 1977), cert. dismissed, 378 So.2d 1212 (Fla.1979). Thus, we conclude that Rose Gordon Neville and Richard Neville will take the fractional share of the trust income formerly received by ......
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State ex rel. Cohen v. Manchin
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