Estate of Dye

• Decision Date: 09 October 2001
• Docket Number: No. C035887.,C035887.
• Citation: 112 Cal.Rptr.2d 362,92 Cal.App.4th 966
• Court: California Court of Appeals Court of Appeals
• Parties: ESTATE of Haskell J. DYE, Deceased. Scott T. Dye, Petitioner and Appellant, v. Phillip Joe Battles et al. Objectors and Respondents.

112 Cal.Rptr.2d 362

92 Cal.App.4th 966

ESTATE of Haskell J. DYE, Deceased.

Scott T. Dye, Petitioner and Appellant, v. Phillip Joe Battles et al. Objectors and Respondents.

No. C035887.

Court of Appeal, Third District.

October 9, 2001.

Kathleen A. Meehan, Fresno, Pa Lai V. Lee and Baker, Manock & Jensen, for Petitioner and Appellant.

Michael J. Matteucci, Stockton, and Scott, Nichols & Matteucci, for Objectors and Respondents.

MORRISON, J.

This case illustrates the danger of using preprinted wills. Decedent Haskell J. Dye had two natural sons who were adopted away (with his consent) by his first wife's new husband (Arthur Battles) in 1959. Under the law at that time, this cut off their right to inherit from him. The law was changed, effective 1985, to permit some adopted-out children to inherit from their natural parents. In 1989 decedent and his second wife Eleanor signed reciprocal form wills, leaving their property to each other. Eleanor died in January, 1999. Decedent died on June 17, 1999.

Scott Dye, Eleanor's son who had been adopted by decedent, petitioned to probate decedent's estate. Phillip Joe Battles, one of decedent's adopted away natural sons, and some of the issue of the deceased adopted away son (Jimmie Dean Battles) filed an objection, seeking to share in decedent's estate. The trial court granted their heirship petition and Scott filed a notice of appeal. The appeal lies. (Prob. Code, § 1303, subd. (g); further unspecified references are to this code.) We first conclude the new law enables the objectors to take a share of the decedent's estate. We also conclude an antilapse statute does not apply because a person's spouse is not his or her "kindred," as defined. We shall affirm.

DISCUSSION

I.

Adoption began with Roman law, and exists by statutes in derogation of common law. (Estate of Renton (1892) 3 Coffey's Prob. Dec. 519, 524-526.) Thus, at first, courts were hostile to adoption. (See Ex Parte Clark (1891) 87 Cal. 638, 641, 25 P. 967 ["We have held that our law of adoption is not unconstitutional [citation], but to acquire any right under it its provisions must be strictly followed, and all doubts in controversies between the natural and the adopting parents should be resolved in favor of the former"], In re Newman (1927) 88 Cal.App. 186, 189, 262 P. 1112, disapproved by Adoption of Barnett (1960) 54 Cal.2d 370, 377, 6 Cal.Rptr. 562, 354 P.2d 18.) This is no longer true. (San Diego County Dept. of Pub. Welfare v. Superior Court (1972) 7 Cal.3d 1, 16, 101 Cal.Rptr. 541, 496 P.2d 453; Tyler v. Children's Home Society (1994) 29 Cal.App.4th 511, 529, 35 Cal.Rptr.2d 291 [adoption requirements "are to be liberally construed in order to effect the object of the adoption statutes in promoting the welfare of children"].) But because it is based on statutes displacing the common law, adoption "does not deprive [an adoptee] of his right to inherit from his relatives by blood, unless the statute provides otherwise." (Note foil. Estate of Renton supra, 3 Coffey's Prob. Dec. at p. 536 [citing Humphries v. Davis (1885) 100 Ind. 274, 50 Am. Rep. 788] [tracing rule to Justinian] & Clarkson v. Hatton (1898) 143 Mo. 47, 44 S.W. 761.)

Adoption creates a legal relationship of parent and child, which "implies that the natural relationship between the child and its parents by blood is superseded. The duties of a child cannot be owed to two fathers at the same time." (Estate ofJobson (1912) 164 Cal. 312, 316-317, 128 P. 938.) The California Supreme Court reasoned, "From the time of the adoption, the adopting parent is, so far as concerns all legal rights and duties flowing from the relation of parent and child, the parent of the adopted child. From the same moment, the parent by blood ceases to be, in a legal sense, the parent. His place has been taken by the adopting parent." (Id at p. 317,128 P. 938.)

But this is not the only plausible view. A dissenting opinion by two justices in the case just quoted (consistent with Judge Coffey's views) would have held the natural parent remains as a default, in the event the adoption fails, as by death of the adopting parent: "In my opinion the true principles governing the construction and application of statutes providing for the adoption of children is that the natural relation and the laws governing it, are thereby altered and affected only so far as the statute of adoption by its terms declares or provides, either expressly or by necessary implication, and no farther. Like an invading force upon a hostile domain, it prevails and controls only so far as its lines extend.... [¶] ... [¶] ... There is not in the adoption statute a word to the effect that, where the adoption has served its purpose by prevailing over the natural relation during the joint lives of the two parties ... it shall thereafter continue for any purpose, or that there is to be thereafter any legal or constructive kinship, or mutual rights of inheritance, between the adopted child and the natural kin of the deceased foster parent, or between the foster parent and the natural kin of the deceased child.... The result should be and would be that, after this termination of the mutual relation, the inheritance from the survivor, upon his subsequent death, will be controlled by the general law of descent and the natural relationship will prevail. There will be then no artificial relation existing to cause a different course of descent from that to the natural kin." (Estate of Jobson, supra, 164 Cal. at pp. 318-320, 128 P. 938 (dis. opn. of Shaw and Lorigan, JJ.); see Estate of Zook (1965) 62 Cal.2d 492, 42 CaLRptr. 597, 399 P.2d 53 [gift to adopted-out grandchildren not covered by higher taxing scheme applicable to gifts to strangers, because devisees were "lineal issue" for tax purposes ].)

Echoing this disagreement, the Legislature has changed its view on the effect of an adoption on the blood relationship.

For our purposes, it suffices to begin with former section 257 as it read in 1959, after a 1955 amendment: "An adopted child shall be deemed a descendant of one who has adopted him, the same as a natural child, for all purposes of succession by from or through the adopting parent the same as a natural parent. An adopted child does not succeed to the estate of a natural parent when the relationship between them has been severed by adoption, nor does such natural parent succeed to the estate of such adopted child." (Stats. 1955, ch. 1478, § 1, p. 2690.) This legislation provided that the adopted child had rights of inheritance in and only in the estate of the adoptive parents. (Estate of Dillehunt (1959) 175 Cal.App.2d 464, 467, 346 P.2d 245; Estate of Dolan (1959) 169 Cal.App.2d 628, 629, 337 P.2d 498. See Estate of Goulart (1963) 222 Cal.App.2d 808, 820, 35 Cal.Rptr. 465 [purpose of 1955 amendment was to abrogate the holding in Estate of Calhoun (1955) 44 Cal.2d 378, 282 P.2d 880, and adopt Justice Traynor's dissent].)

The parties agree that when decedent's sons were adopted by their mother's new husband, this statute cut off their rights to inherit under the intestacy laws at that time. (See Estate of Hart (1984) 165 Cal. App.3d 392, 394, fn. 1, 209 Cal.Rptr. 272.)

This rule was changed by a new statute, effective January 1, 1985, which has gone through various amendments. (Former § 6408 Stats.1983, ch. 842, §§ 19, 55, pp. 3024, 3083.) In 1993 the language of the present section 6451 was adopted. (Stats. 1993, ch. 529, § 5, p. 2715.) Now an adoption severs the blood relationship "unless both of the following requirements are satisfied: [¶] (1) The natural parent and the adopted person lived together at any time as parent and child[.][¶] (2) The adoption was by the spouse of either of the natural parents[.]" (§ 6451, subd. (a).) California is not alone in providing by statute for adopted-out children to inherit from their natural parents when the adoption was by a stepparent. (See, e.g., Raley v. Spikes (Ala.1993) 614 So.2d 1017; Estate of Carlson (Minn.App. 1990) 457 N.W.2d 789.)

Before Jimmie Dean and Phillip Joe were adopted out, decedent lived with them, and their adoption was by the new husband of their mother, decedent's former wife. They satisfy the new exception to the statute. (Cf. Estate of Carlson, supra, 457 N.W.2d 789 [not a stepparent adoption, no right to inherit].)

In 1989, after the change in the law, decedent and Eleanor wrote their wills. Eleanor died in 1999, leaving her property to decedent. He died later in 1999, leaving everything to Eleanor. Therefore—apart from an antilapse claim discussed below— when he died, his estate lapsed.

Where, as here, the decedent has no surviving spouse, the estate passes "To the issue of the decedent, the issue taking equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take in the manner provided in Section 240." (§ 6402, subd. (a).) Section 240 provides for distribution per stirpes. (See Estate of Careaga (1964) 61 Cal.2d 471, 476, 39 Cal.Rptr. 215, 393 P.2d 415.)

Application of these statutes allows the objectors to inherit part of the estate, which, based on the evidence would be divided into thirds: One-third to Scott (an adopted-in son of the decedent); one-third to Phillip Joe (an adopted-out son who satisfies the new statute) and one-third to the heirs of Jimmie Dean (also an adoptedout son who satisfies the new statute). (See § 6402.) The trial court so held.

II.

Scott asserts in his brief that decedent and Eleanor did not consult a lawyer and thought he was their only lawful heir, and that decedent never intended to benefit objectors, "some of whom he never even met." Scott urges the case should be remanded so he can introduce evidence to establish decedent's intention regarding the adopted-out children.

A.

Assuming Scott accurately sets forth decedent's wishes, decedent could have expressed such intention by inserting into the will "I...