In re Buell's Estate

• Decision Date: 14 October 1941
• Citation: 167 Or. 295,117 P.2d 832
• Parties: IN RE BUELL'S ESTATE McKINLEY <I>v.</I> ALLEN ET AL.
• Court: Oregon Supreme Court

167 Or. 295

117 P.2d 832

IN RE BUELL'S ESTATE McKINLEY

v. ALLEN ET AL.

Supreme Court of Oregon.

Argued September 9, 1941.

Affirmed October 14, 1941.

Wills — Common law

1. At early common law, where beneficiary in a will predeceased the testator, the bequest to such predeceased beneficiary lapsed and the property so bequeathed was distributed as if on intestacy.

Wills — Adopted child — Right to inherit

2. The legislature has power to endow an adopted child with the right to take property bequeathed by will to adoptive parent who predeceased testator.

Wills — Relative

3. Testator's sister is a "relative" of testator within meaning of provision of anti-lapse statute making such statute applicable to property devised to any child, grandchild or other relative of the testator.

Adoption — Child — Right to inherit

4. The rights of an adopted child are defined by statutes which provide that from the date of the decree of adoption the child shall to all legal intents and purposes be the child of the adoptive parent and the statutes make further provisions with respect to the adopted child's right of inheritance.

Statutes — Construction

5. The fact that adoption was unknown in Oregon at time Oregon anti-lapse statute was enacted does not prevent adopted child from taking under anti-lapse statute property bequeathed by will to adoptive parent who predeceased testator, nor necessitate an express amendment of anti-lapse statute in order to entitle adopted child to the benefits thereof.

Adoption — Child — Right to inherit

6. In determining the right of an adopted child to inherit under the statutes, court must look to the laws of succession and the statutes on adoption, and the statutes of adoption must be read into the succession laws.

Adoption — Child — Right to inherit

7. The right of inheritance from an adoptive parent who dies intestate is clearly granted to adopted child by statute.

Adoption — Wills

8. No statutory provision is necessary to entitle an adopted child to take property specifically devised to him by will.

Wills — Rights of adopted children

9. That adoption statute, in addition to giving adopted child the right of inheritance from adopting parent who dies intestate, provides further that adoptee shall be deemed, for the purposes of inheritance and all other legal consequences and incidents, the child of adopting parents the same as if he had been born to them by lawful wedlock, indicates legislative intent to invest adopted child with rights additional to those of inheritance in case of intestacy, or to take as a named devisee.

Adoption — Wills — Heir of the body

10. While the legislature has plenary power to determine the rights of adoptees, it does not and cannot make an adoptee an heir of the body.

Adoption — Statutes

11. By express statutory provision, a child who is adopted is not thereby constituted an "heir" of the collateral kindred of the adopting parent.

Statutes — Adoption

12. The fact that adoption statute expressly states two exceptions to the general statement, that adoptee is to be deemed a natural child for the purposes of inheritance and all other legal consequences and incidents of the natural relation, raises a strong presumption that no other exception was intended.

Wills — Adoption — Lineal descendants

13. The adopted child of a sister of testatrix came within the classification of "lineal descendants" of adopting mother within meaning of anti-lapse statute, providing that such descendants shall take property devised to any child, grandchild, or other relative of testator when such devisee predeceases testator.

                  See 1 Am. Jur. 664
                  2 C.J.S., Adoption of Children, § 63
                

Before KELLY, Chief Justice, and BAILEY, LUSK, RAND, ROSSMAN and BRAND, Associate Justices.

Appeal from Circuit Court, Multnomah County.

GEORGE TAZWELL, Judge.

Proceeding in the matter of the estate of Ida May Buell, deceased, by Ruth Lenore McKinley against Mary Allen, administratrix of the estate of Charles L. Brush, deceased, and others, to determine the heirs and distributees of the estate of Ida May Buell, deceased. From a decree in favor of plaintiff, defendants appeal.

AFFIRMED.

C.H. Greene, of Portland (Beach, Simon & Greene, of Portland, on the brief), for appellants.

Clifford W. Powers, of Portland, for respondent.

The plaintiff seeks a decree determining the heirs and distributees of the estate of Ida May Buell. The testatrix Ida May Buell had a brother Charles L. Brush and a sister Emma A. Wilkinson. The plaintiff Ruth Lenore McKinley is the adopted daughter of Emma A. Wilkinson.

In 1934 the testatrix executed and published her will by the terms of which she devised and bequeathed to her sister Emma A. Wilkinson her entire estate. The beneficiary under the will died in 1937. A year and a half later the testatrix Ida May Buell died. No change was made in the will by the testatrix after the death of her sister Emma A. Wilkinson, the beneficiary.

The plaintiff, as the adopted daughter of the beneficiary, claims the estate. The defendant, brother of the testatrix, asserted that the bequest in the will had lapsed by reason of the fact that the beneficiary predeceased the testatrix, and that he, as the sole heir of the testatrix, was entitled to the estate. He died during the course of the litigation and is now represented by Mary Allen, his administratrix.

The facts are not in dispute. The decision below was for the plaintiff.

BRAND, J.

1. At early common law, since the beneficiary in a will predeceased the testatrix, the bequest would have lapsed and the property would have been distributed as if upon intestacy. 1 Underhill on the Law of Wills, 436, § 324; Scott v. Ford, 52 Or. 288, at 294, 97 P. 99 (1908). Under the Oregon anti-lapse statute, however, it is clear that if the plaintiff had been in fact the heir of the body of Emma A. Wilkinson the bequest would not have lapsed and the plaintiff would have taken the estate. The only question at issue therefore, is whether the bequest lapsed by reason of the fact that the plaintiff is the child of Emma A. Wilkinson by adoption rather than by consanguinity.

2. As to the power of the legislature to endow an adopted child with rights in this particular, identical to those of an heir of the body begotten, there can be no serious question. We inquire only whether or not it has done so. The anti-lapse statute, enacted in 1853, provides:

"When any estate shall be devised to any child, grandchild, or other relative of the testator, and such devisee shall die before the testator, leaving lineal descendants, such descendants shall take the estate, real and personal, as such devisee would have done in case he had survived the testator." 2 O.C.L.A. § 18-604.

3. It must be conceded, notwithstanding a tentative argument to the contrary, that a sister is a relative, so the first requirement of the anti-lapse statute is met. An estate was devised to a relative and the relative died before the testator. If, therefore, the adopted child of the relative comes within the classification of "lineal descendants" it follows that she should take the estate as the devisee would have done had the devisee survived the testator.

4. The rights of an adopted child are defined by statute. It is provided that from the date of the decree of adoption "the child shall, to all legal intents and purposes, be the child of the petitioner." 5 O.C.L.A. § 63-406 (1864).

"A child so adopted shall be deemed, for the purposes of inheritance of such child, and all other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as if he had been born to them by lawful wedlock; except that he shall not be capable of taking property expressly limited to the heirs of the body or bodies of the parent by adoption, nor property from the lineal or collateral kindred of such parents by right of representation." 5 O.C.L.A. § 63-407 (1864).

5. Appellant argues, in substance, that when the antilapse statute was enacted adoption was unknown in Oregon and that therefore the term "lineal descendants" could not include adopted children unless the statute were expressly amended. This contention is refuted by the authorities. The New Jersey court discussed in another connection the adoption statute of that state, and said:

"* * * It changes the statutory rules regulating the devolution of property, not by amending, or repealing pro tanto, the provisions of pertinent legislative enactments, but by enlarging the class for whose benefit they were originally passed (that is, the children born to the decedent, and their issue), by making the adopted child a lawful child of the decedent for the purpose of sharing in the distribution of his estate." In Re Book's Will, 90 N.J. Eq. 549, 107 A. 435 (1919).

6. The New York court, in discussing a case which we shall later notice, said concerning its adoption statute:

"What then is the escape from this statute? The plea is, that because section 29 of the Decedent Estate Law (formerly R.S. part 2, ch. 6, tit. 1, art. 3, § 52) was the law before the present adoption statute was enacted (Laws of 1887, ch. 703), the words `child' and `descendant' must be limited to blood relationship as they were when the Revised Statutes became the law. The answer to this suggestion is that the Legislature passed both the Decedent Estate Law and the Domestic Relations Law and had full power over the disposition of property by will or descent. By the latter law it made an adopted child the same as a natural child for the purposes of inheritance from its foster parent. Such a `child' thus created by the Legislature fitted in exactly to the existing Decedent Estate Law, section 29, which said that a legacy to a brother would not lapse by his death but pass to his child `as if such legatee (brother) * * * had survived.' The `child' created by the Legislature would take on survivorship...