In re Cadwell's Estate

• Decision Date: 21 January 1920
• Docket Number: 947
• Citation: 26 Wyo. 412,186 P. 499
• Parties: IN RE. CADWELL'S ESTATE. v. CADWELL MORALEE, ET AL.
• Court: Wyoming Supreme Court

186 P. 499

26 Wyo. 412

IN RE. CADWELL'S ESTATE.

MORALEE, ET AL. v. CADWELL

No. 947

Supreme Court of Wyoming

January 21, 1920

ERROR to the District Court, Carbon County; HON. V. J. TIDBALL Judge.

In the matter of the estate of Willard Cadwell, deceased, wherein C L. Moralee, and M. M. Moralee, also William P. Cadwell, filed petitions for distribution of the estate. There was a judgment in favor of Cadwell, and the Moralees bring error.

Affirmed.

McMicken and McMicken, for plaintiffs in error.

The controversy hinges upon the meaning to be given the term "descendants" found in Sec. 5727, Div. 2, Comp Stat. A descendant is one proceeding from an ancestor, an offspring near or remote (Centvic Progeny, Worcester Dict.). The force of the adoption statute (Sec. 3964) must be limited to heirship from the adoptive parents. The right of inheritance is limited to descendants (Bates v. Gillett, 132 Ill. 287); the term "descendant", as used in wills, means the issue of the body and does not include heirs generally (Hamlon v. Osgood, 1 Redf. Sur. 409, 417); the statute of descent controls (Knight v. Pottgieser, 176 Ill. 368, 52 N.E. 934; in Re. Waln's Estate, 189 Pa. 631); the terms "issue" and "descent" are employed interchangeably (Houston v. Read, 32 N. J. E. 591; Bryan v. Walton, 20 Ga. 480; Bates v. Gillett, 132 Ill. 287; Tompkins v. Verplanck, 42 N.Y.S. 412); a descendant is one who descends as offspring (Warden v. Taylor, 32 W.Va. 284; 2 Jarman Wills, 632; Hillen v. Iselin, 144 N.Y. 365, 39 N.E. 308; Twaites v. Waller, 133 Ia. 84; Hadcox v. Cody, 135 N.Y. 861); a Michigan statute providing that an adopted child shall become the heir at law of the person adopting it, does not make such child an heir of the kindred of the adoptive parent by right of representation (Van Derlyn v. Mack, 137 Mich. 146; 100 N.W. 278, 66 L. R. A. 437); such adopting child inherits from the adoptor only, but not through him from his ancestors (Phillips v. McConnica, 59 Ch. St. 1, 51 N.E. 445, 69 Am. St. Rep. 753; In re. Darling's Est., 159 P. 606 (Cal.); Ryan v. Foreman, 181 Ill.App. 262; Ryley v. Day, 88 Kan. 503, 129 P. 524); in Massachusetts it is settled that an adopted child takes only from adopting parents, despite statutory provisions that the adoptee shall for all purposes be regarded as the natural child of its adopting parents (Gammons v. Gammons, 212 Mass. 454, 99 N.E. 95, and other cases cited). Hosp. Co. v. Humphrey, 32 R. I. 318, is to the same effect. The same rule applied in Kentucky (134 Ky. 133, 136 S.W. 133), and in Illinois (Wallace v. Nolan, 246 Ill. 535). Cases cited by the counsel to the contrary are based upon statutes differing in terms from that of Wyoming.

N. R. Greenfield, for defendant in error.

Adoption was unknown to the common law (Corpus Juris, vol. 1, p. 1371); we get no light from that source (Humphry v. Davis, 100 Ind 216; Nugent v. Powell, 4 Wyo. 186); the status of an adopted child is fixed by the Wyoming statute (3964 C. S.), the statute of descent is 5727 C. S. Where the language of a statute is plain, there is no room left for construction (Rasmusson v. Baker, 7 Wyo. 128); the adoption statute, 3964, is plain in terms, containing but one exception, as to inheritance, which does not occur in this case. The term descendant includes adopted children as well as natural children (Flannigan v. Howard, 200 Ill. 396; Warren v. Prescott, 17 L. R. A. 435; Clark v. Clark, 85 A. 759, 1 C. J. 1399; Ryley v. Day, 129 P. 524; Estate of Numan, 7 Am. St. Rep. 146); when a legatee dies before a testator leaving an adopted child, such child takes under a statute preventing the lapsing of legacies (Sewall v. Roberts, 115 Mass. 262); questions of adoption and rights of inheritance are statutory (Van Derlyn v. Mack, supra); there is no reason for limiting the effect of the adoption statute (Boaz v. Sweaney, 99 P. 621; Anderson v. French, 93 A. 1042); such statutes are liberally construed (Glascott v. Bragg, 87 N.W. 852; Parson v. Parson, 70 Am. St. Rep. 894); decisions to the contrary are affected by provisions of statutes (In re. Burnett's Estate, 69 A. 74; Rasmusson Estate, 131 N.W. 325); in the absence of restrictions provided by statute an adopted child inherits collaterally (Shaick v. Howe, 114 N.W. 916); this court has followed the doctrine of liberal construction in such cases (Nugent v. Powell, supra); the Kansas statute relating to adoption prior to its amendment was identical in terms with that of Wyoming; the Supreme Court of Kansas, in the case of Ryley v. Day, 129 P. 524, decided prior to the amendment, held, that an adopted child could inherit collaterally a share that would have descended to her adopting mother.

MENTZER, DISTRICT JUDGE. BEARD, C. J., and POTTER, J., concur. BLYDENBURGH, J., having announced his disqualification to sit in the case, HON. WILLIAM C. MENTZER, Judge of the First Judicial District, was called in and sat in his stead.

OPINION

MENTZER, DISTRICT JUDGE.

Willard Cadwell died intestate in Carbon county, Wyoming, on September 1, 1911. He was a resident of said county at the time of his death and left an estate therein consisting of real and personal property. He left no children or widow surviving him, and his father, mother, and all of his brothers and sisters died prior to the time of his death. His sister, Emma Cadwell, had intermarried with one Moralee, and left surviving her as her only heirs-at-law, and also surviving the said Willard Cadwell, two sons, to-wit: C. L. Moralee and M. M. Moralee, the petitioners in error. His brother, William H. Cadwell, left surviving him as his only heir-at-law, an adopted son by the name of William P. Cadwell, the defendant in error, who also survived the said Willard Cadwell.

The said adoption proceedings had taken place in said Carbon county on the 24th day of September, 1887, pursuant to the laws of the then territory of Wyoming, being the same provisions for the adoption of minor children as are now contained in chapter 267 of the Wyoming Compiled Statutes 1910. The estate of the said Willard Cadwell was administered in the District Court of Carbon county, and when it was ready for final distribution the plaintiffs in error, C. L. Moralee and M. M. Moralee, filed their petition for the distribution of said estate and prayed that all of the property belonging to said estate, after paying the debts and costs of administration, be distributed to them, share and share alike, as the sole and only heirs of the said Willard Cadwell, basing their claims on the fact that they were the nephews by blood of the said deceased.

The defendant in error, William P. Cadwell, also filed his petition for distribution of the said estate, alleging that he was an heir of the said Willard Cadwell, deceased, on account of his being an adopted son of William H. Cadwell, a brother of the decedent, and prayed that one half of the proceeds of said estate be distributed to him by reason of his said adoption.

The District Court found specifically that the said William P. Cadwell, defendant in error, was entitled to receive the same portion of said estate his adoptive father would have received had he survived his brother Willard, and decreed that one half of the proceeds of said estate be distributed to him, the defendant in error, and that the other one half of said estate be distributed to the plaintiffs in error, being the same portion their mother would have received had she survived her brother Willard.

The said C. L. and M. M. Moralee brought the matter to this court by petition in error.

The question to be determined by the court is whether the said Willard P. Cadwell, the adopted son of William H., a brother of the decedent Willard, who died intestate, and after the death of the said William H., had a right to inherit from the said Willard and participate in the distribution of his estate; in other words, does a son by adoption become the legal heir of the intestate brother of his adoptive father where the adoptive parent dies prior to the death of his said intestate brother. This is a question that has not heretofore been decided or considered by this court.

At the common law, adoption was unknown; therefore, the law governing the adoption of minor children and the rights and liabilities emanating therefrom are governed purely by statutory provisions. Also, the law governing descent and distribution of the property of an estate of a person dying intestate is purely statutory. Therefore, in determining whether or not the defendant in error has a right to inherit under the circumstances above stated, it is necessary to refer to and apply the statutes fixing and defining the property rights of an adoptive child, and also the statute providing for the descent and distribution of the property of an estate of a person dying intestate.

The statutory provision with reference to the rights of an adopted minor is found in Section 3964 of the Wyoming Compiled Statutes of 1910, which provides:

"Minor children adopted as aforesaid shall assume the surname of the person by whom they are adopted, and shall be entitled to the same rights of person and property as the children or heirs-at-law of the persons thus adopting them, unless the rights of property should be excepted in the agreement of adoption."

The statute of descent and distribution, in so far as it is applicable to the facts in this case, is found in subdivision 2 of section 5727 of the Compiled Statutes of 1910, and is as follows:

"If there be no children nor other descendants, then to his father, mother, brothers and sisters and to the descendants of brothers and sisters who are dead (the descendants collectively taking the share their parents would have taken if living), in equal parts."

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