In re Estate of John J. Riemann; Maria R. Fett v. Riemann

• Decision Date: 10 December 1927
• Docket Number: 27,451
• Citation: 124 Kan. 539,262 P. 16
• Parties: In re ESTATE OF JOHN J. RIEMANN; MARIA R. FETT, Appellant, v. CYNTHIA RIEMANN, as Administratrix, etc., et al., Appellees
• Court: Kansas Supreme Court

262 P. 16

124 Kan. 539

In re ESTATE OF JOHN J. RIEMANN; MARIA R. FETT, Appellant, v. CYNTHIA RIEMANN, as Administratrix, etc., et al., Appellees

No. 27,451

Supreme Court of Kansas

December 10, 1927

Decided July, 1927

Appeal from Barton district court; RAY H. BEALS, judge. Opinion on rehearing filed December 10, 1927. (For original opinion of affirmance see 123 Kan. 718, 256 P. 1004.) Reversed.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. DESCENT AND DISTRIBUTION--What Law Governs. Rule followed that the devolution of intestate personal property is governed by the law of the domicile of the decedent, and the devolution of intestate real property is governed by the law of the state where it is situated.

2. ADOPTION--Right of Inheritance--What Law Governs. A child adopted in a foreign state has inheritable capacity to lands situated in this state in conformity with our law governing the distribution of intestate estates, notwithstanding the law of the foreign state where the adoption proceedings were effected imposed upon her a disqualification to inherit from the collateral kindred of her adoptive parent.

3. SAME--Right of Inheritance--What Law Governs. Plaintiff was adopted in Illinois by the brother of a Kansas citizen, who died single, without issue, and intestate. By Illinois law she was disqualified to inherit from her adoptive parents' collateral kindred. Held, that such disqualification should be construed as a rule of inheritance peculiar to Illinois, and ineffective to alter or thwart the regular operation of Kansas law governing the devolution of decedents' estates.

4. SAME--The case of Boaz v. Swinney, 79 Kan. 332, 99 P. 621, is overruled.

Nelson Miller, of Le Mars, Iowa, for the appellant.

R. C Russell, of Great Bend, for the appellees.

OPINION OPINION ON REHEARING.

DAWSON, J.:

This is a rehearing. (Riemann v. Riemann, 123 Kan. 718, 256 P. 1004.) The facts were fully stated and the legal question developed in our first opinion. Briefly repeated, John J. Riemann, of Barton county, died intestate, unmarried and without issue. The appellant, Maria R. Fett, is the adopted daughter of Henry J. Riemann, a deceased brother of John. Henry lived in Illinois, and appellant was adopted by him in accordance with the adoption law of Illinois, one feature of which is that the relation between adoptive parent and adopted child "shall be, as to their legal rights and liabilities, the same as if the relation of parent and child existed between them, except that the adoptive father or mother shall never inherit from the child; but to all other persons the adopted child shall stand related as if no such act of adoption had been taken." (Public Laws, Illinois, 1867, p. 134.)

Following Boaz v. Swinney, 79 Kan. 332, 99 P. 621, we held that the right of an adopted child to inherit Kansas land was dependent upon the peculiarities of the adoption law of the state under which the adoption proceedings were had. The court is now disposed to reexamine the soundness of that conclusion.

Going back to first principles, the law regulating the transmission of the estates of decedents, testate or intestate, is whatever the law-making power declares it to be. As to real estate, in cases of intestacy it devolves in accordance with the statute of descents and distributions in the state where the land is located. (Cooper v. Ives, 62 Kan. 395, 63 P. 434; Williams v. Wessels, 94 Kan. 71, 145 P. 856.) The law can make anybody an heir (Newby v. Anderson, 106 Kan. 477, 188 P. 438), and even the rights of blood kindred to inherit are prescribed by statute and would not exist apart from the statute (Hannon v. Taylor, 57 Kan. 1, syl. P 2, 45 P. 51).

While the matter of adoption of children occupied a place of importance in the civil law (Cooper's Justinian, 3d ed., 28), the common law gave it no countenance. Speaking generally, in this country the law of adoptions is whatever the statute prescribes. The statutes of some states, like Kansas, are liberal, and confer upon an adopted child and reciprocally on an adoptive parent every right which exists where the relationship is that of parent and child by legitimate blood kindred. (R. S. 38-107, 22-119, 22-120; Baird v. Yates', 108 Kan. 721, 196 P. 1077.)

Touching the rights of children adopted in one state to inherit land in another state, the matter of comity between states is not without its significance, but not necessarily more so than in dealing with the rights of other children or people in general. So far as the law of the state where the adoption proceedings were had is in accord with the law of the forum it will be respected, and where it is more or less at variance with the law of the forum it may be disregarded. Thus in Keegan v. Geraghty et al., 101 Ill. 26, a child adopted in the state of Wisconsin was denied the right to inherit in Illinois from a collateral relative of its adoptive parent. This was a perfectly logical decision for the Illinois court to make, because Illinois law expressly denies to adopted children that right; and comity between states did not require that an adoption under Wisconsin law should be accorded greater potency in Illinois than an Illinois adoption itself would be. In other words, the Illinois court quite properly declined to depart from the policy of its own law governing the devolution of Illinois real property. But the same course of reasoning, pursued in Keegan v. Geraghty, might very well have led this court to a different conclusion from that reached in Boaz v. Swinney. In Kansas, as elsewhere, intestate succession of real estate is governed by the local law. (18 C. J. 809.) Paraphrasing the text of Hood v. McGehee, 237 U.S. 611, 59 L.Ed. 1144, Kansas is the sole mistress of the devolution of Kansas land by descent. By our local law the rights of inheritance enjoyed by adopted children are identical with those enjoyed by natural, legitimate children. And our courts should not be required to give cognizance to a peculiar discrimination imposed by foreign law upon adopted children when such discrimination is so greatly at variance with the generous spirit of our own law and so repugnant to the theory which underlies the law governing adoption of children in this state. In Dreyer v. Schrick, 105 Kan. 495, 185 P. 30, where pertinent paragraphs of our statute of adoptions and of our statute of descents and distributions were reproduced and cases from other jurisdictions discussed, this court said:

"Statutory peculiarities may account, in part, for some of these decisions.

. . . .

"In this state adoption carries with it every feature of the domestic relation of parent and child, except natural parentage. Capacity to inherit follows as an incident, but not as the sole end. . . . The reciprocal rights, duties, privileges, responsibilities and liabilities created are those of parent and child in fact, and statutes referring to the relationship, which do not clearly exclude adopted children, must be interpreted as including them on equal footing with natural children." (pp. 497, 498.)

Not only may different statutes constrain different judicial conclusions on questions of law pertaining to the incidents and consequences attaching to the adoption of children, but the hostile attitude of the common law towards the whole subject of legitimation and adoption of children is not unlikely to be reflected in the decisions of great American courts which adhere to the common-law tradition. (Statute of Merton, 20 Hen. III c. 9 [A. D. 1235]; Birtwhistle v. Vardill, 2 Clark & F. 571, 5 Eng. Rul. Cas. 748 [House of Lords, 1840]; Keegan v. Geraghty, supra; Frey v. Nielson, 99 N.J.Eq. 135, 132 A. 765.) While the jurisprudence of this state is greatly obligated to the common law, on this particular matter of adoption as well as on the law of intestate succession our law-makers deliberately crossed over to the side of the civil law--an historical fact which gives a keynote to the general trend of decisions of this court throughout its entire history.

We have referred particularly to the case of Keegan v Geraghty, but it is only a type of many, some of which are cited in Boaz v. Swinney, supra. There is, however, what now seems to us to be a more logical solution of the legal question than that heretofore reached by this court. We think there is no such status as that of a partially adopted child, any more than there is of a partially married spouse. A child is adopted or not; a woman is either married or not. By the law of the state where a woman is married she may be entitled on the death of her husband to inherit one-third of his real estate. In Kansas she would inherit one-half at least, and in the event her husband died intestate and without issue she would inherit the whole of it. In the widow's case we would pay no attention to the restrictions of her rights of inheritance imposed by the law of the state where the marriage occurred. So, too, in some jurisdictions illegitimate children are disqualified to inherit. In this state they inherit from the mother, and from the father also if he has openly acknowledged their paternity. (R. S. 22-121, 22-122.) Kansas courts would not think of denying an illegitimate child his right of...