In re The Estate of William Bartram v. Holcomb

• Decision Date: 07 May 1921
• Docket Number: 23,008
• Parties: In re THE ESTATE OF WILLIAM BARTRAM, Deceased v. P. M. HOLCOMB, as Administrator, etc., and as Guardian of THERON Q. BARTRAM, a Minor, Appellee GEORGE BARTRAM, Appellant,
• Court: Kansas Supreme Court

198 P. 192

109 Kan. 87

In re THE ESTATE OF WILLIAM BARTRAM, Deceased

GEORGE BARTRAM, Appellant, v. P. M. HOLCOMB, as Administrator, etc., and as Guardian of THERON Q. BARTRAM, a Minor, Appellee

No. 23,008

Supreme Court of Kansas

May 7, 1921

Decided January, 1921.

Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

DESCENTS AND DISTRIBUTIONS--From Whom an Adopted Child May Inherit. A child who after the death of his mother is adopted by his maternal grandfather, inherits from the grandfather on his death, as his adopted child, and inherits as a child of the mother.

J. J. Schenck, of Topeka, for the appellant.

Z. T. Hazen, of Topeka, for the appellee.

OPINION

MARSHALL, J.:

George Bartram appeals from an order directing P. M. Holcomb, administrator of the estate of William Bartram, to pay to the widow and children the funds of the estate in a certain proportion.

William Bartram was married and had two children, George Bartram, the appellant, and Mabel Thedrick. She died prior to the death of William Bartram, and left one child, Theron Q. Bartram, as her sole and only heir. After her death William Bartram adopted Theron Q. Bartram, and then died intestate.

The probate court, and on appeal from that court, the district court, directed the administrator to pay over to the widow of William Bartram one-half of the estate, to George Bartram one-sixth thereof, and to Theron Q. Bartram one-third thereof. The effect of the judgment is to give to Theron Q. Bartram an amount of the estate that would be equal to that inherited by two children of William Bartram. The appeal is taken from the order directing payment of one-third of the estate to Theron Q. Bartram.

The only question discussed is, Can Theron Q. Bartram inherit from his grandfather as an adopted child and at the same time as the sole surviving heir of his mother? This court has held that an adopted child inherits in a dual capacity. In Dreyer v. Schrick, 105 Kan. 495, 185 P. 30, the court said, "A child by adoption, who is adopted the second time, inherits from his first foster parent." (Syl. § 2.) In Baird v. Yates, 108 Kan. 721, 196 P. 1077, this court said: "In the case of Dreyer v. Shrick, supra, the rule was recognized that unless some statute destroy the capacity, an adopted child will inherit from both its natural and its adopted parents." (p. 722.) The logical conclusion to be drawn from the rule declared in these cases is that Theron Q. Bartram inherits from his grandfather both as the child of Mabel Thedrick and as an adopted child.

The appellant cites Billings v. Head, 184 Ind. 361, 111 N.E. 177, Delano v. Bruerton, 148 Mass. 619, 20 N.E. 308, and Morgan v. Reel, 213 Pa. 81, 62 A. 253. In these cases the rule is declared that a child adopted by its grandparent cannot inherit from the grandparent in the capacity of both a child and a grandchild. In the Indiana case the court used the following language:

"Our statutes of descent provide that an intestate's land shall descend, one-third to the widow and the remainder to his children in equal proportions, provided that if a child be dead leaving a child surviving the latter shall take the share which its parent would have inherited, if living. § 2991 Burns 1914, § 2468 R. S. 1881. Our statute dealing with the right of inheritance of an adopted child reads as follows: 'Such court, when satisfied that it will be for the interest of such child, shall make an order that such child be adopted, and from and after the adoption of such child it shall take the name in which it is adopted and be entitled to and receive all the rights and interest in the estate of such adopting father and mother, by descent or otherwise, that such child would if the natural heir of such adopting father or mother: Provided, however, That should such adopted child die intestate, without leaving wife or husband, issue or their descendants, surviving him or her, seized of any real estate or owning any personal property which may have come to such child by gift, devise or descent from such adopting father or mother, such property so coming to such adopted child shall, on its death, descend to the heirs of said adopting father or mother the same as if such child had never been adopted.' § 870 Burns 1914, supra." (p. 362.)

The statute there quoted was given a place in the reasoning by which that court reached its conclusion. This state has no such statute. In the Massachusetts case the court said:

"The statute provides, in § 6, that, after the decree of adoption, all the rights, duties, responsibilities, and other legal consequences of the natural relation of child and parent, except as regards succession to property shall exist between the child and the adopting parent, and shall, except as regards marriage, incest, or cohabitation, terminate between the adopted person and his natural parents and kindred. By § 7 it is provided that, 'as to the succession to property, a person adopted in accordance with the provisions of this chapter shall take the same share of property which the adopting parent could have devised by will that he would have taken if born to such parent in lawful wedlock, and he shall stand in regard to the legal descendants, but to no other of the kindred of such parent, in the same position as if so born to him.' Pub. Sts. c. 148, §§ 6, 7.

"The intent of the statute was to put an adopted child, for all legal purposes with certain carefully defined exceptions, in the place of a natural child, and to give him the same rights. If the statute had stopped here, it would seem clear that Henry Curtis would, in regard to the succession to the property of his adopting parent, stand as a son, and that his rights of succession as a grandson would be merged in his greater rights as a son.

"But the statute contains a further provision, at the close of § 7 that 'no person shall, by being adopted, lose his right to inherit from his natural parents or kindred.' Probably the legislature contemplated, what is in fact true, that most of the children adopted would be infants incapable of protecting their rights and of appreciating the effect of the transaction, and it was just to provide that they should not, without their intelligent consent, be deprived of the right to inherit the property of their natural parents or kindred. As applied to most cases the provision is plain, and in harmony with the other parts of the statute, and there is no difficulty in carrying into effect every part of it. But when applied to the case before us, if it is to receive the construction...