In re Warr's Estate

• Decision Date: 03 May 1943
• Docket Number: 15041.
• Citation: 111 Colo. 85,137 P.2d 408
• Parties: In re WARR'S ESTATE. v. GREEN et al. ROGERS
• Court: Colorado Supreme Court

137 P.2d 408

111 Colo. 85

In re WARR'S ESTATE.

ROGERS v. GREEN et al.

No. 15041.

Supreme Court of Colorado

May 3, 1943

In Department.

Error to County Court, City and County of Denver; C. E. Kettering Judge.

Proceedings in the matter of the Estate of Isabel Warr, deceased. On petition for determination of heirship between Elizabeth Warr Rogers, adopted child of predeceased brother of decedent and James Bird Green and others, cousins of decedent. To review a judgment determining that cousins were heirs at law Elizabeth Warr Rogers brings error.

Affirmed.

Albert J. Gould, of Denver, for plaintiff in error.

Grant Shafroth & Toll and Charles H. Haines, Jr., all of Denver for defendants in error.

GOUDY Justice.

Isabel Warr, a resident of the City and County of Denver, died intestate March 21, 1941. Defendants in error are cousins of deceased, and will be designed as such in this opinion. Plaintiff in error, to whom we hereinafter refer as the adoptee, was legally adopted in Illinois in 1916 by Will Warr, a predeceased brother of decedent, who, had he survived her, would have been her sole and only heir at law. On petition filed in the county court for determination of heirship, the cousins were adjudged heirs at law of decedent, and the adoptee, being denied the right to inherit, brings the case here for review on writ of error. The sole issue is the right of the adoptee to inherit through her adopting parent as against kindred by blood.

Concerning the adoption of children, Laws of Colorado, 1876, page 38, pertinent here, in substance, provided:

'Section 1. If any person * * * desire to adopt any child, * * * as his, or her heir, it shall be lawful for such person to do the same by deed, * * *.

* * *

* * * 'Sec. 3. From the time of filing the deed * * *, the child * * * adopted shall have the same right * * * in all respects, and enjoy all such other rights and privileges, including the rights of inheritance, as against the persons executing the deed of adoption, as a child by law has against lawful parents.'

Subsequent amendments, pertinent here, are Session Laws of 1885, p. 17, div. 1, § 1, Revised Statutes, 1908, p. 289, § 526, which, inter alia, provided: 'Sec. 1. An inhabitant of this state not married, or a husband and wife, jointly, may petition the district or county court * * * for leave to adopt a minor child, not theirs by birth, and for a change of the name of such child, * * *.'

Session Laws of 1911, ch. 1; Compiled Laws of 1921, § 5512, inter alia, provided:

'Section 2. * * * Any inhabitant of Colorado, not married or a husband and wife jointly may petition the District or County Court * * * for leave to adopt a minor child or an adult heir at law, not theirs by birth and for a change of the name of such child or heir at law, * * *.

'That upon petition of any person desiring to adopt and adult heir at law, * * * a decree of adoption shall be * * * entered * * * declaring such person the heir at law of the petitioner * * * and entitled to inherit from the petitioner * * * any or all property in all respects as if it had been petitioner's child born in holy wed-lock, * * *.'

Section 5512, Compiled Laws, 1921, supra, was amended by Session Laws, 1931, p. 150, ch. 51, which, inter alia, provided:

'Section 1. Any inhabitant of Colorado, not married, or a husband and wife jointly, may petition the Juvenile Court, * * * or * * * the District or County Court, * * * for leave to adopt a minor child, not his or theirs by birth, and for a change of the name of such child, * * *.

'Section 6. Any person or persons desiring to adopt an adult heir at law shall file his or their petition therefor with the County or District Court. * * * Upon the filing of a consent to such adoption, * * * a decree of adoption shall be * * * entered by the Court declaring such person the heir at law of the petitioner * * * and entitled to inherit from the petitioner * * * any or all property in all respects as if such adopted person had been the petitioner's child born in lawful wedlock, * * *.'

Session Laws, 1885, p. 18, § 3; R.S., 1908, p. 289, § 528; Compiled Laws 1921, p. 487, § 5514, ch. 120; S.L.1931, p. 152, § 4 ch. 51; '35 C.S.A., p. 31,§ 4, ch, 4, all, inter alia, provide: 'When the foregoing provisions are complied with * * * the court * * * shall make a decree * * * declaring that from that date such child, to all legal intents and purposes, is the child of the petitioner, * * *.'

Session Laws, 1885, p. 18, § 4; R.S., 1908, p. 290, § 529; Compiled Laws 1921, p. 1487, § 5515, ch. 120, inter alia, provided: 'The natural parents shall, by such order, be divested of all legal rights and obligations in respect to the child * * *; such child shall be to all intents and purposes the child and legal heir of the person so adopting him or her, entitled to all the rights and privileges, * * * of a child of such person begotten in lawful wedlock; but upon the decease of such person and the subsequent decease of such adopted child without issue, the property of such adopting parent shall descend to his or her next of kin, and not to the next of kin of such adopted child.'

This section was amended by S.L., 1927, p. 183, § 1, ch. 59; S.L., 1931, p. 152, § 5, ch. 51; '35 C.S.A. p. 32, § 5, ch. 4, both of which provided: 'The natural parents shall by such order, be divested fo all legal rights and obligations in respect to the child * * *; such child shall be to all intents and purposes the child and legal heir of the person so adopting him or her, entitled to all the rights and privileges * * * of a child of such person begotten in lawful wedlock; upon the death of an adopted child who is survived by neither spouse nor descendant all of his property which is not otherwise disposed of by will shall descend to the family of which he is a member by adoption, as if he had been born a member of such family; and neither his natural parents nor any other member of his natural family shall be entitled to any rights by virtue of any of the intestate laws of this state.'

Session Laws, 1903, p. 469, § 1, and p. 471, § 3; R.S., 1908, §§ 7040, 7042; Compiled Laws, 1921, §§ 5151, 5154; '35 C.S.A., §§ 1, 4, ch. 176 provide:

'Whenever any person having * * * property * * * shall die intestate * * * it shall descend * * * to his kindred, male and female * * *.

* * *

'Sec. 3. * * * Legally adopted children shall be, to all intents and purposes, children and legal heirs of the persons so adopting them, entitled to inherit as fully as children of the foster parents begotten in lawful wedlock, and in case any such adopted child shall die leaving no husband, wife or children, then the foster parents shall inherit as though such adopted child had been a child of such foster parents born in lawful wedlock.'

This section was amended by Session Laws, 1941, p. 908, c. 235, § 16, which provides: 'Section 4. * * * Legally adopted children and their descendants shall be, to all intents and purposes, descendants of the persons adopting such children and such adopted children and their descendants shall be entitled to inherit under the intestate laws of this state as if such adopted children had been born in lawful wedlock to such foster parents, * * *.'

The right of the adoptee to inherit is to be determined by the law in force March 21, 1941, the date of the death of Isabel Warr. 2 C.J.S., Adoption of Children, p. 454, § 63; Brooks Bank & Trust Co. v. Rorabacher, 118 Conn. 202, 171 A. 655. The act of 1941 was approved April 17, 1941. It therefore did not affect the rights of the adoptee, and will not be considered further.

The cousins contend that the rights of the adoptee should be determined by the law of Illinois in effect in 1916, the year of the adoption in that state, but as a consideration of that question is not necessary for our decision here, it will not be passed upon. In 1915 we determined the relation created by adoption in Russell v. Jordan, 58 Colo. 445, 147 P. 693, 694, Ann.Cas.1916C, 760, and held that it 'is regarded as personal between the adopting parent and adopted child.' There are divergent lines of authorities in this county, one holding that inheritance follows the blood, and that an adopted child inherits only from the adopting parent and not through it; the other, that an adopted child inherits as fully as a child of the blood. The former is the doctrine of the Ohio and other cases cited by us in Russell v. Jordan, supra, namely: Upson v.Noble, 35 Ohio St. 655; Phillips v. McConica, 59 Ohio St. 1, 51 N.E. 445, 69 Am.St.Rep. 753; Helms v. Elliott, 89 Tenn. 446, 14 S.W. 930, 10 L.R.A. 535; Hockaday v. Lynn, 200 Mo. 456, 98 S.W. 585, 8 L.R.A.,N.S., 117, 118 Am.St.Rep. 672, 9 Ann.Cas. 775; Boaz v. Swinney, 79 Kan. 332, 99 P. 621; Hole v. Robbins, 53 Wis. 514, 10 N.W. 617; Van Derlyn v. Mack, 137 Mich. 146, 100 N.W. 278, 66 L.R.A. 437, 107 Am.St.Rep. 669, 4 Ann.Cas. 879.

Among cases taking a contrary view are: Humphries v. Davis, 100 Ind. 274, 50 Am.Rep. 788; Hilpire v. Claude, 109 Iowa 159, 80 N.W. 332, 46 L.R.A. 171, 77 Am.St.Rep. 524; Calhoun v. Bryant, 28 S.D. 266, 133 N.W. 266; In re Taylor's Estate, 136 Neb. 227, 285 N.W. 538; McCune v. Oldham, 213 Iowa 1221, 240 N.W. 678; In re Moore's Estate, 7 Cal.App.2d 722, 47 P.2d 533, 48 P.2d 28; Warner v. King, 267 Ill. 82, 107 N.E. 837; In re Cave's Estate, 326 Pa. 358, 192 A. 460; In re Cook's Estate, 187 N.Y. 253, 79 N.E. 991; Carpenter v. Buffalo General Electric Co., 213 N.Y. 101, 106 N.E. 1026, Ann.Cas.1916C, 754.

The first adoptive statute enacted in this state in 1876 provided for adoption by deed. The act of 1885 provided for the adoption of minors upon petition to a court of record. In 1911, section 1 of that act was amended to...