In re Hewett's Estate

• Citation: 13 So.2d 904,153 Fla. 137
• Parties: In re HEWETT'S ESTATE.
• Decision Date: 08 June 1943
• Court: Florida Supreme Court

13 So.2d 904

153 Fla. 137

In re HEWETT'S ESTATE.

Florida Supreme Court

June 8, 1943

Appeal from Circuit Court, Pinellas County; T. Frank Hobson judge.

Carey &amp Harrison, of St. Petersburg, for appellant.

Joe W. Davis, of St. Petersburg, for Walter Stamper, administrator of the estate of William B. Hewett.

Fred T. Saussy, of St. Petersturg, for appellee, Lila Colwell.

BROWN, Justice.

This is a case of first impression in this jurisdiction. It concerns the degree or extent of inheritability of an adopted child as regards the estates of lineal or collateral kindred of the adoptive parent or parents.

William B. Hewett died May 14, 1941. He had made a will leaving all of his estate to his wife, but she died shortly before he did. So it is agreed that in effect he died intestate. He left surviving him no father or mother, no child or children, no brother or sister, nor the descendants of a deceased brother or sister no grandparents and no uncles or aunts. So far as known to the trial court, his surviving kindred consisted of two first cousins, Laura Conklin and Etta Ferguson, the appellants herein. Then there was Lila Colwell, the adopted daughter of William B. Colwell, a deceased first cousin of William B Hewett, who claimed an interest in William B. Hewett's estate, i. e., that she was entitled to recover from the assets of the Hewett estate the same interest which her adoptive father would have been entitled to had he been living at the time of the death of William B. Hewett.

William B. Colwell and Mrs. Etta Ferguson were the children of Thankful Hewett Colwell, who was a paternal aunt of William B. Hewett. Mrs. Laura Conklin is the daughter of another paternal aunt of William B. Hewett, whose name was Sophronia Hewett. If these two aunts had been living at the time of William B. Hewett's death, his estate would have descended to them under Sec. 24 of the Probate Act of 1933, F.S.A. § 731.23, but they both predeceased William B. Colwell and he predeceased William B. Hewett.

The Probate Judge, after taking testimony as to the facts, entered an order denying Lila Colwell's claim, and on appeal the Circuit Court reversed said order. The Judge of both these courts carefully considered this controversy, as shown by their very persuasive opinions, but, as above shown, they reached opposite conclusions. Laura Conklin and Etta Ferguson appealed from the Circuit Court's judgment to this court. On this appeal we have the benefit of the well prepared briefs of counsel for the respective parties.

The question involved is not free from difficulty, as is often the case when dealing with questions turning upon the interpretation of statutory provisions. In the light of the facts of this case the controlling question might be briefly stated in these words: Is the adopted daughter of William B. Colwell, the deceased first cousin of William B. Hewett, entitled to share in the estate of William B. Hewett to the same extent that her adoptive father would have shared had he been living at the time of William B. Hewett's death?

Our old adoption statute (ch. 3594, Acts of 1885, sections 5076-5081, C.G.L., sections 72.01 to 72.06, Fla.Stats.1941, F.S.A. §§ 72.01 to 72.06) contains a provision to the effect that any child adopted thereunder 'shall be declared the child and heir at law of the person applying for his adoption.' The same rule was made to apply to a child legally adopted in another state. Sec. 5488, C.G.L. The Probate Act of 1933, section 31, now appearing as section 731.30, Fla.Stats.1941, F.S.A. § 731.30, being the last expression of the legislative will, is controlling here. It reads as follows:

'Adopted child.--An adopted child, whether adopted under the laws of Florida or any other state or country, shall be an heir at law and for the purpose of inheritance be regarded as a lineal descendant of its adopting parents and the adopting parents shall inherit from the adopted child. Such adopted child shall inherit the estate of its blood parents, but such blood parents shall not inherit from such adopted child.'

Section 24, subsection 6(b), of the Probate Act of 1933, being subsection 6(b) of section 731.23 of Fla.Stats.1941; F.S.A. § 731.23, reads:

'Order of succession.--The real and personal property of an intestate shall descend and be distributed as follows: * * *

'6(b) If there be no grandfather or grandmother, to the uncles and aunts and the descendants of such of them as may be deceased.'

William B. Colwell, the adoptive father of claimant Lila Colwell, was the son of a deceased aunt of William B. Hewett, and admittedly a 'descendant' of such aunt within the plain meaning of the statute. The question here is whether upon the death of Hewett, William B. Colwell's adopted daughter, he having predeceased William B. Hewett, was also a 'descendant' of Hewett's deceased aunt. Manifestly she was not, unless section 31 of the Probate Act, now section 731.30 of Fla. Stats. 1941, F.S.A. § 731.30, made her so.

That section of the statute provides that an adopted child 'shall be an heir at law and for the purpose of inheritance be regarded as a lineal descendant of its adopting parents,' etc. (Emphasis supplied.) So the statute does not expressly make the adopted child the heir at law or lineal descendant of the ancestors or blood kindred of the adoptive parents. Can we reasonably hold that it impliedly does so? We think not.

It is argued that an adopted child could not 'for the purpose of inheritance be regarded as a lineal descendant of its adopting parents' without also being regarded as the lineal descendant of its adopting parents' ancestors, but the statute says nothing about the adopting parents' ancestors and we cannot add anything to the statute which is not expressly stated therein or which is not necessarily implied by the language used. Can it be said that the implication contended for is necessarily and reasonably implied from the language used?

The learned Circuit Judge thought so. His view was that the above quoted section 31 of the Probate Act, insofar as an adopted child is concerned, was a legislative definition of the word 'descendants' as used in paragraph 6, subsection (b), and wherever such word appeared in said section 24, thus placing an adopted child in exactly the same position for purposes of inheritance as a natural child would have occupied. He also called attention to the fact that the words 'for the purpose of inheritance' is not qualified by any such words as from 'its adopting parents.' But that the word 'inheritance' is used in an unrestricted sense. We agree that sections 24 and 31 (731.23 and 731.30, Fla.Stats.1941, F.S.A. §§ 731.23, 731.30) should be construed in pari materia, but those provisions of section 24 (the general statute of descents and distributions) which limit the distribution of inheritances to 'descendants' must not be changed by anything contained in section 31 except insofar as the language of that section either expressly or by necessary implication requires. We think that the use of the words, 'and for the purpose of inheritance be regarded as a lineal descendant of its adopting parents' might well have been prompted by the words immediately following, which are, 'and the adopting parents shall inherit from the adopted child,' which would only be appropriate if the child be regarded 'as a lineal descendant of its adopting parents.' This purpose is further shown by the next sentence, which provides that while the adopted child shall also inherit from its blood parents, the 'blood parents shall not inherit from such adopted child.' We might well say that what the legislature mainly had in mind in drafting this section was the extent and quality of an adopted child's inheritance from both its adopting parents and its natural parents, and the reciprocal right of inheritance from the adopted child--which latter right was given exclusively to the adopting parents, just the same as if the adopted child were 'for the purpose of inheritance' regarded 'as the lineal...