In re Hebb's Estate

Decision Date13 May 1925
Docket Number19128.
Citation235 P. 974,134 Wash. 424
CourtWashington Supreme Court
PartiesIn re HEBB'S ESTATE. v. MORRIS. CHAFFEE

Department 1.

Appeal from Superior court, Yakima County; Nichoson, Judge.

Action by Nellie Hebb Morris, as guardian of Marion Elkanah Hebb, a minor, against Stephen E. Chaffee, executor of the will of Elkanah Hebb, deceased. Judgment for plaintiff, and defendant appeals. Affirmed.

Stephen E. Chaffee, of Sunnyside, for appellant.

Henry H. Wende, of Yakima, for respondent.

MAIN J.

The question in this case is whether an adopted child is a 'descendant' of his adoptive parents. The facts out of which the litigation arose may be summarized as follows On December 14, 1908, Fred F. Hebb and Nellie Hebb were husband and wife, and on that day they adopted Marion Elkanah Hebb, then a child of tender years. Fred F. Hebb died on July 28, 1912. He was the natural son of Elkanah Hebb, who died on April 30, 1924, leaving a last will and testament. At the time of his death Elkanah Hebb was survived by a natural son Jesse C. Hebb, and an adopted daughter, Josephine Gray Hebb. No mention is made in the will of Elkanah Hebb of Marion Elkanah Hebb, the adopted son of Fred F. Hebb. Nellie Hebb Morris was appointed the guardian of Marion Elkanah Hebb and filed a petition setting forth in substance the facts as stated, and asking that the same portion of the estate of Elkanah Hebb be awarded to Marion Elkanah Hebb that he would be entitled to receive if Elkanah Hebb had died intestate. The executor of the will resisted this petition. The trial resulted in a judgment awarding to Marion Elkanah Hebb that portion of the estate of his grandfather Elkanah Hebb, which he would be entitled to had he died intestate. From the judgment so entered, the executor appeals.

If the adopted child, under the statutes and holdings of this court is to be given the status of a 'descendant' of his adoptive father, then the judgment of the trial court should be affirmed. On the other hand, if he is not to be given that status, then the judgment should be reversed. To determine the question, an examination, not only of the will statute, but of the statute of adoption, is necessary.

Section 1402, Rem. Comp. Stat., provides:

'If any person make his last will and die leaving a child or children or descendants of such child or children not named or provided for in such will, although born after the making of such will or the death of the testator, every such testator, as to such child or children not named or provided for, shall be deemed to die intestate, and such child or children or their descendants shall be entitled to such proportion of the estate of the testator, real and personal, as if he had died intestate, and the same shall be assigned to them, and all the other heirs, devisees and legatees shall refund their proportional part.'

Under this statute if a person make his last will and die leaving a child or children or 'descendants of such child or children not named or provided for in the will' then such child or children or their descendants shall take as though he died intestate. In the present case the concrete question is whether Marion Elkanah Hebb was a descendant of his adoptive father. The section of the adoption statute which is here material is section 1699, Rem. Comp. Stat., and reads as follows:

'By such order the natural parents shall be divested of all legal rights and obligations in respect of such child, and the child shall be free from all legal obligations of obedience and maintenance in respect to them, and shall be, to all intents and purposes, the child and legal heir of his or her adopter or adopters, entitled to all rights and privileges and subject to all the obligations of a child of the adopter or adopters begotten in lawful wedlock. * * *'

This statute has on a number of occasions been before this court, and the effect of the cases has been to give it a construction which places an adopted child in exactly the same position as a natural child so far as that is possible. In other words, to make the status the same as to all rights, privileges, and obligations. In Van Brocklin v. Wood, 38 Wash. 384, 80 P. 530, referring to this statute it was said:

'This statute we think was intended to, and does, confer upon the adopted child more than the ordinary right of inheritance; for, in addition to making it the child and legal heir, as is done in some states, the statute proceeds to say that such child is entitled to all the rights and privileges of a child begotten in lawful wedlock. It is difficult to conceive of language which would clearly or definitely give to an adopted child all the rights of one born in lawful wedlock, if the language quoted in this section does not do so.'

In Re Masterson's Estate, 45 Wash. 48, 87 P. 1047, 122 Am. St. Rep. 886, it was said:

'By the decree of adoption the child became, to all intents and purposes, the child of her adoptive mother and continued to be such even after her death.'

One of the rights and privileges of a natural child is to inherit property as a descendant of its parents. If the adopted child does not have the same right then it is denied a right or privilege which the natural child has, and the holding in the Van Brocklin Case, supra, was that the adopted child was entitled to all the rights and privileges of a child begotten in lawful wedlock.

In the Matter of the Estate of Masterson, 108 Wash. 307, 183 P. 93, it is said:

'One of the rights or privileges of a natural child is to inherit from a brother or sister, the natural son or daughter of the same parents. If the adopted child does not have
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15 cases
  • Frizzell's Estate, In re
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    • Florida District Court of Appeals
    • September 4, 1963
    ...Bourne v. Dorney, 184 App.Div. 476, 171 N.Y.S. 264, 1918; Surman v. Surman, 21 Ohio App. 434, 153 N.E. 873; 1916; In re Hebb's Estate, 134 Wash. 424, 235 P. 974, 1925. See Fulton Trust Co. v. Trobridge [Trowbridge], 126 Conn. 369, 11 A.2d 393, 127 A.L.R. 747, 1940. * * Under the same footno......
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    • April 10, 1945
    ...291 P. 325, 80 A.L.R. 1398, after referring to and quoting from In re Masterson's Estate, 108 Wash. 307, 183 P. 93, and In re Hebb's Estate, 134 Wash. 424, 235 P. 974, we stated, 158 Wash. at page 381, 291 P. at page 326, A.L.R. 1398: 'Unless prohibited by statute, an adopted child may inhe......
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2 books & journal articles
  • Chapter A. Establishing The Will
    • United States
    • Washington State Bar Association Washington Law of Wills and Intestate Succession (WSBA) Chapter 9
    • Invalid date
    ...22 Wn.App. 373, 380, 591 P.2d 784 (1979). 199 In re Hubert's Estate, 14 Wn.2d 475, 128 P.2d 647 (1942). 200 In re Hebb's Estate, 134 Wash. 424, 429, 235 P. 974 (1925); Aetna Life Ins. v. Booker, 56 Wn.App. 567, 784 P.2d 186 201 In re Sloan's Estate, 50 Wash. 86, 91, 96 P. 684 (1908) ("the l......
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