Fishburne v. Fishburne

• Decision Date: 08 January 1934
• Docket Number: 13746.
• Parties: FISHBURNE et al. v. FISHBURNE.
• Court: South Carolina Supreme Court

172 S.E. 426

171 S.C. 408

FISHBURNE et al. v. FISHBURNE.

No. 13746.

Supreme Court of South Carolina

January 8, 1934

Appeal from Common Pleas Circuit Court of Richland County; E. C Dennis, Judge.

Action by Skottowe B. Fishburne, individually and as executor of the will of Marion Green Fishburne, deceased, and another against Madeline Elizabeth Fishburne, by her guardian ad litem, Jennie B. Green. From an adverse decree, defendant appeals.

Affirmed.

George H. Wittkowsky and W. L. Cain, both of Columbia, for appellant.

Claude K. Wingate, of Columbia, for respondents.

BONHAM Justice.

January 31, 1925, Mrs. Marion Green Fishburne and her husband Skottowe B. Fishburne, adopted as their child the infant Madeline Elizabeth Fishburne. Thereafter, about November 7, 1928, Mrs. Marion Green Fishburne made her will by which she devised all of her property to her husband, Skottowe B. Fishburne for the term of his natural life, with remainder to her legally adopted daughter, Madeline Elizabeth Fishburne. July 14, 1931, Mr. and Mrs. Fishburne legally adopted Rachel Colby S. Fishburne, the sister of Madeline. These children were the nieces by blood of Mrs. Fishburne, their adopted mother. July 23, 1931, Mrs. Fishburne executed a codicil to her will whereby it was provided that Rachel Colby S. Fishburne should share equally with her sister, Madeline, in the remainder of Mrs. Fishburne's estate, after the falling in of the life estate to her husband. Mrs. Fishburne died February 28, 1932, and her will was admitted to probate March 15, 1932; the codicil attached to the will was denied admission to probate becouse of some defect in the manner of its execution. Skottowe B. Fishburne was named executor of the will and duly qualified as such executor.

This action was brought in the court of common pleas for Richland county for the purpose of having the court construe the will of Mrs. Fishburne with the especial purpose of determining what interest, if any, Rachel Colby S. Fishburne took in the estate. To be more explicit, the primary question is, Does Rachel Colby S. Fishburne come in under the will as an after-born child would do?

The matter was heard by Judge Dennis on an agreed statement of facts, the gist of which is embodied in the statement hereinabove set out. Judge Dennis adjudged and decreed "that Rachel Colby S. Fishburne share equally with her sister, Madeline Elizabeth Fishburne as remainderman in the estate of her adopted mother after the death of Skottowe B. Fishburne, the life tenant." This appeal followed the filing of the circuit court decree.

This single question presented by the two exceptions is this: Was it error to hold that Rachel Colby S. Fishburne comes within the terms of section 8925 of the Code of 1932 and shares equally with Madeline Elizabeth Fishburne in the remainder of the estate of their adopted mother?

The determination of the question cannot be made by confining the consideration of the issue to the provisions of section 8925 of the Code, but that section must be considered in connection with sections 8924 and 8679.

"Where there are different statutes in pari materia, though enacted at different times, and not referring to each other, they are to be taken and construed together as one system, and as explanatory of each other." In re Book's Will, 90 N. J. Eq. 549, 107 A. 435.

Section 8924 is as follows: " Posthumous Children to Receive Equal Share.--If no provision shall be made by the will of the testator for any child or children that may be born after his death, such child or children shall be entitled to an equal share of all real and personal estates given to the other child or children, who shall contribute to make up such share or shares according to their respective interests or portions deriving to them under such will."

Section 8925 is in these words: " Provision for Children Born after Will.--Any child or children of any person, which may be born after the making and executing the last will and testament, but previous to the decease of such person, shall be provided for as by the preceding section."

So much of section 8679 as is pertinent is as follows: " Adoption of Children--Change of Name--How Affected.--Any person or persons who may desire to adopt any child or children in this State, and confer upon such child or children so adopted the right to inherit as the lawful child of the said person or persons, whether it be desired to change the name of such child or children or not, shall be authorized to file his or their petition in the court of Common Pleas for the county in which he, she or they may reside; and thereupon, the court, upon an examination into the merits of the said petition, either in open court or upon reference, shall be authorized to grant the prayer thereof, upon such terms as may to the court seem proper; and, thereupon, the name of the said child or children shall be changed, if so provided in the decree of said court, and such child or children shall be entitled to inherit from the said petitioner or petitioners as his, her or their lawful child or children," etc.

We have found no case in the reports of our own court which directly decides the question here involved. There are numerous cases from other jurisdictions, the opinions of which are predicated upon the applicable statutes of the several states. Necessarily there are divergent views. We have followed those cases which are founded upon statutes the terms of which are analogous, or similar, to ours, which hold that a legally adopted child will take under our statutes hereinabove quoted, or under a devise or bequest to child or children as would a child born to the parent. The decisions in support of the proposition are too numerous to mention.

The concrete question for our determination is: Does a child, adopted after the execution of the will of the adoptive parent, come in and share under the will just as would the natural-born child of the testator?

"The rights conferred on an adopted child in respect of the estate of the adoptive parent are such as accrue by virtue of the statute of the state in which the adoption took place." Shaver v. Nash, 181 Ark. 1112, 29 S.W.2d 298, 73 A. L. R. 961.

An inspection of our statute regulating the adoption of children, section 8679, vol. 3, Code 1932, shows that the statute expressly gives to a child adopted in accordance with its provisions the right to inherit as the lawful child or children of the adoptive parent.

Section 8924, vol. 3, Code 1932, provides that, if no provision be made in a will for a posthumous child such child shall be made equal in the estate of the testator with the other children of the testator, who shall contribute for this purpose from the shares given them by the will.

Section 8925 provides that any child or children of a person who may be born after the making and executing of the last will and testament of such person, but previous to his death, shall be provided for as by the last preceding section.

It is assumed from the language of the last section that the testator therein named made no alteration in his will after the birth of such child.

In the case with which we are concerned, Mrs. Fishburne attempted to provide for the child who was adopted after the execution of her will, by the execution of a codicil in which provision was made for this child, which codicil failed of effect only because the witnesses thereto were not all present together and did not see her sign and execute it while all were present. The codicil is not good as a testamentary paper, but it is included in the transcript of record, and is a potent, if silent, indication of the testatrix' wishes.

Rhode Island has a statute which declares that "an adopted child shall be deemed, for the purposes of inheritance, and all other legal consequences of the natural relation of parent and child, the child of the parents by adoption, as if he had been born in lawful wedlock. *** Held, that where testator created a trust for the benefit of his two sons, the income to be used for the support of them and their families, and in the event of their decease, leaving lawful issue, for the support of such issue until the termination of the trust, and on the death of both of the sons to distribute one-half of the trust res to the 'children then living' of each, etc., an adopted child of one of the sons took the same interest she would have taken as if she were a child of his body." In re Olney, 27 R.I. 495, 63 A. 956, 957.

The Supreme Court of Iowa, in the case of Hilpire v. Claude, 109 Iowa, 159, 80 N.W. 332, 333, 46 L. R. A. 171, 77 Am. St. Rep. 524, construed a statute of that state of the following purport:

"Any person competent to make a will is authorized in manner hereafter set forth, to adopt as his own the minor child of another, conferring thereby upon such child all the rights, privileges and responsibilities which would pertain to the child if born to the person adopting in lawful wedlock.

"Upon the execution, acknowledgment, and filing for record of such instrument, the rights, duties, and relations between the parent and child by adoption, shall, thereafter, in all respects, including the right of inheritance [on the part of the child], be the same that exist by law between parent and child by lawful birth."

The court said: "Having found that under the Code of 1873 the subsequent birth of a legitimate child to the testator before his death operated as a revocation of his prior wills we now inquire whether the adoption of a child has the...