First Nat. Bank In Fairmont v. Phillips

• Decision Date: 01 November 1985
• Docket Number: No. CC,CC
• Citation: 344 S.E.2d 201,176 W.Va. 395
• Court: West Virginia Supreme Court
• Parties: FIRST NATIONAL BANK IN FAIRMONT, as Administrator of the Personal Estate of James R. McHenry, Jr., Deceased v. Martha Jane PHILLIPS, James Thornhill, Margaret Gregory, Betty Shamblin, and Sandra Boyd Showell. 951.

Page 201

344 S.E.2d 201

176 W.Va. 395

FIRST NATIONAL BANK IN FAIRMONT, as Administrator of the Personal Estate of James R. McHenry, Jr., Deceased v. Martha Jane PHILLIPS, James Thornhill, Margaret Gregory Betty Shamblin, and Sandra Boyd Showell.

No. CC 951.

Supreme Court of Appeals of West Virginia.

Nov. 1, 1985.

Dissenting Opinion May 16, 1986.

Syllabus by the Court

1. "The doctrine of equitable adoption is hereby incorporated into the law of West Virginia, but a litigant seeking to avail himself of the doctrine in a dispute among private parties concerning trusts or the descent of property at death must prove by clear, cogent, and convincing evidence that he has stood from an age of tender years in a position exactly equivalent to that of a formally adopted or natural child[.]" Syl. pt. 2 (in part), Wheeling Dollar Savings & Trust Co. v. Singer, 162 W.Va. 502, 250 S.E.2d 369 (1978).

2. If an equitable adoption is established by clear, cogent and convincing evidence, the equitably adopted child would inherit from another child of the adoptive parent under W.Va.Code, 48-4-11(b) [1984], which provides that an adopted child inherits "from ... the lineal ... kindred of such adopting parent or parents in the same manner and to the same extent as though said adopted child were a natural child of such adopting parent or parents, ..."

Philip C. Petty, Fairmont, for appellant.

C.V. Critchfield, Furbee, Amos, Webb & Critchfield, Fairmont, for appellees Phillips, Gregory, Thornhill & Showell.

Ben B. White, III, Princeton, for appellee Shamblin.

McHUGH, Justice:

In this case we are asked to decide the scope of the doctrine of equitable adoption.

Having denied a motion to dismiss filed by the defendants except for Betty Shamblin, the Circuit Court of Marion County, West Virginia [hereinafter, "the trial court"], upon its own motion and upon the joint application of the parties, certified the following question to this Court ¹: is the doctrine of equitable adoption as set forth in Wheeling Dollar Savings & Trust Co. v. Singer, 162 W.Va. 502, 250 S.E.2d 369 (1978), applicable only as between adoptive parent and adoptive child for the purpose of inheritance, and conversely not applicable as between adoptive child and those claiming through the adopting parent? The trial court answered this question in the negative. We agree with respect to the right of an equitably adopted child to inherit from another child of the adoptive parent.

According to the pleadings the facts are as follows. James R. McHenry, Jr. [hereinafter, "the decedent"] died intestate on July 21, 1983, survived only by five first cousins, the named defendants herein. At the time of his death the decedent owned no real property but did own certain personal property. The plaintiff, the First National Bank in Fairmont, as the duly appointed administrator of the decedent's personal estate, brought this declaratory judgment proceeding pursuant to W.Va.Code, 55-13-4 [1941] ² to determine the beneficiaries of the decedent's estate and their respective distributive shares. According to the complaint and in her separate answer, Ms. Shamblin, one of the defendants, alleges that she, in addition to being a first cousin of the decedent by blood, had been equitably adopted by the decedent's parents and, thus, as the "sister" of the decedent by equitable adoption, was the next of kin and sole beneficiary of the decedent's personal estate. ³

The other defendants moved to dismiss the action on the ground that equitable adoption, even if in fact established, would operate as a matter of law only as between Betty Shamblin and the decedent's parents, and not as between Betty Shamblin and the other defendants, who, along with Ms. Shamblin, are the next of kin of the decedent under this view of the law.

The trial court denied the motion to dismiss. While finding some merit to the contention that the love and affection between an equitably adopted child and the adoptive parent should not be presumed to exist also as between the equitably adopted child and the natural children of the adoptive parent, the trial court, based upon language in Singer, supra, concluded that an equitably adopted child is a "family member" and, thus, may inherit as a sibling. The trial court certified the question to us because Singer did not directly address such a factual situation.

I. Singer

To answer the certified question it is important to analyze Singer first. Singer involved a testamentary trust, with income for life to the niece of the testatrix; upon the niece's death the principal was to be distributed to the niece's children, and if none survived her, the principal was to be distributed to the testatrix's heirs. Ms. Singer (not related by blood to the testatrix) claimed to be the "child" of the niece based upon her belief that she had been formally (legally) adopted by the niece of the testatrix. This Court remanded the case to the trial court for an evidentiary hearing to determine whether Ms. Singer had been equitably adopted by the niece of the testatrix, for if she could prove equitable adoption she would be entitled as the niece's "child" to the principal of the trust, to the exclusion of the testatrix's heirs. Syl. pt. 2 states the holding in Singer concerning equitable adoption:

The doctrine of equitable adoption is hereby incorporated into the law of West Virginia, but a litigant seeking to avail himself of the doctrine in a dispute among private parties concerning trusts or the descent of property at death must prove by clear, cogent, and convincing evidence that he has stood from an age of tender years in a position exactly equivalent to that of a formally adopted or natural child[.]

It was noted at the outset in Singer that the earlier decision in Wheeling Dollar Savings & Trust Co. v. Hanes, 160 W.Va. 711, 237 S.E.2d 499 (1977), recognizes that adoptions are more pervasive and concerns with "bloodline" less pervasive in modern society than in the early part of this century and, consequently, the exclusion of an adopted child from the definition of "child," "heirs," or the like may no longer be accomplished by implication. Singer, supra, 162 W.Va. at 507, 250 S.E.2d at 372-73.

This Court then phrased the issue in Singer:

Since Hanes clearly established the right of adopted children to be treated as natural children, the only remaining question presented in the case before us is whether adherence to formal adoption procedures, W.Va.Code, 48-4-1 [1969] et seq. [revised in 1984] is the exclusive method by which a person may be accorded the protections of adoptive status in West Virginia. We find that it is not.

162 W.Va. at 507-08, 250 S.E.2d at 373 (emphasis added).

In several other portions of Singer this Court also referred to the status or position of the equitably adopted child. For example, the Court refused to follow the rationale of most of the cases from other jurisdictions which "predicate the finding of an equitable adoption on the proof of an expressed or implied contract of adoption.... [A]n implied contract of adoption is an unnecessary fiction created by courts as a protection from fraudulent claims." 162 W.Va. at 509-10, 250 S.E.2d at 374. To protect against fraudulent claims, this Court imposed a demanding burden of proof:

We find that if a claimant can, by clear, cogent and convincing evidence, prove sufficient facts to convince the trier of fact that his status is identical to that of a formally adopted child, except only for the absence of a formal order of adoption, a finding of an equitable adoption is proper without proof of an adoption contract.

162 W.Va. at 510, 250 S.E.2d at 374 (emphasis added). Again, in discussing the burden of proof, reference to status or position of the equitably adopted child is made: "The equitably adopted child in any private property dispute ... involving the laws of inheritance or private trusts [emphasis in original; footnote omitted] must prove by clear, cogent and convincing evidence that he has stood from an age of tender years in a position [emphasis added] exactly [emphasis in original] equivalent to a formally adopted child." 162 W.Va. at 508-09, 250 S.E.2d at 373.

Moreover, the status or position of the equitably adopted child was not artificially limited to that of being a "child" but was recognized to be that of a "family member," just as a natural child or formally adopted child would be:

Our family centered society presumes that bonds of love and loyalty will prevail in the distribution of family wealth along family lines, and only by affirmative action, i.e., writing a will, may this presumption be overcome. An equitably adopted child in practical terms is as much a family member as a formally adopted child and should not be the subject of discrimination.

162 W.Va. at 508, 250 S.E.2d at 373 (emphasis added). ⁴

Finally, Singer sets forth several indicia of equitable adoption: love and affection between the person and his or her allegedly adoptive parent(s); the child's performance of services for the parent; the surrender of ties by the natural parent; the society, companionship and filial obedience of the child; an invalid or ineffectual adoption proceeding; reliance by the adopted person upon the existence of his adoptive status; the representation to all the world that the child is a natural or adopted child; and the rearing of the child from an age of tender years by the adopting parents. 162 W.Va. at 509, 250 S.E.2d at 373-74.

II. Inheritance from child of adoptive parent

The above analysis of Singer indicates that its language speaks to the issue presented here: may an equitably adopted child inherit as a brother or sister from another child of the equitably adoptive parent? We hold that he or she may so inherit.

It is significant that in Singer the property in question, the principal of the testamentary trust, would pass directly from the testatrix (the aunt) to the equitably...