King v. Riffee

• Decision Date: 14 November 1983
• Docket Number: No. 15806,15806
• Parties: Larry Dwaine KING and Pattie Sue King, his wife v. Opal RIFFEE, Individually and as Administratrix of the Estate of George W. Carney, et al.
• Court: West Virginia Supreme Court

Page 85

309 S.E.2d 85

172 W.Va. 586

Larry Dwaine KING and Pattie Sue King, his wife v. Opal RIFFEE, Individually and as Administratrix of the Estate of George W. Carney, et al.

No. 15806.

Supreme Court of Appeals of West Virginia.

Nov. 14, 1983.

Syllabus by the Court

1. Nemo est haeres viventis. [No one is heir to the living.]

2. An adoptive child's entitlements to inheritance under the laws of intestate succession are governed by the statute on intestate succession in effect at the time of the death of the ancestor from whom he might inherit and not by the laws of intestate succession in effect at the time of his adoption.

Hash & Benford and Lee F. Benford II, Ravenswood, for appellants.

Oliver D. Kessel, Ripley, for appellees.

Lawrence W. Hancock, Ravenswood, for Debbie Carney.

NEELY, Justice:

Larry Dwaine King was born out of wedlock to Evelyn King on 30 October 1942. By order of the Circuit Court of Lincoln County Larry was legally adopted by Chester Henry King and his wife, Hermie King, on 16 November 1955. Larry King alleges that his natural father was Denzil T. Carney, one of five children of George W. Carney. George W. Carney died intestate on 26 May 1978. Denzil T. Carney would have taken one-fifth of George W. Carney's substantial estate by intestate succession if he had not died before George W. Carney. The question presented on this appeal is whether Larry Dwaine King can now inherit that one-fifth portion from his alleged natural grandfather's estate.

This case was before the Court on an earlier occasion to determine whether an illegitimate child can be limited to inheritance from his mother under W.Va.Code 42-1-5 [1923]. Mr. King's case was among three cases consolidated for decision on that issue and in those cases we held that W.Va.Const. art. III, § 17 prohibits limiting illegitimate children to the maternal line for intestate inheritance because denying inheritance from their natural fathers discriminates invidiously against illegitimate children. Adkins v. McEldowney, 167 W.Va. 469, 280 S.E.2d 231 (1981). Consequently, it has already been decided that Mr. King's illegitimacy, standing alone, does not foreclose his right to inherit from his father's side of the family if he can prove who his father was.

The issue before us on this appeal, however, has nothing to do with Mr. King's status as an illegitimate child. Rather, the question before us now concerns the effect of Mr. King's adoption in 1955 upon his rights to inherit from his natural father. The decision in this case would be the same if Mr. King had been the legitimate son of Denzil T. Carney.

The problem in this case arises because at the time of Mr. King's alleged grandfather's death W.Va.Code 48-4-5 [1969] provided that adopted children inherit from their adopted parents but not from their natural parents. W.Va.Code 48-4-5 [1969] provides in pertinent part:

For the purpose of descent and distribution, from and after the entry of such order of adoption, a legally adopted child shall inherit from and through the parent or parents of such child by adoption and from or through the lineal or collateral kindred of such adopting parent or parents in the same manner and to the same extent as though said adopted child were a natural child of such adopting parent or parents, but such child shall not inherit from his or her natural parent or parents nor through their lineal or collateral kindred, ....

The circuit court held that the law of intestate succession in effect at the time of the death of Mr. King's grandfather on 26 May 1978 controls this case and that Mr. King is barred from inheriting from his natural grandfather. Mr. King appeals, contending that the law of intestate succession at the time of his adoption applies. We affirm.

West Virginia's law concerning intestate succession is entirely statutory. The question to be answered in this case concerns when rights under intestate succession statutes vest. The appellant argues that at the time of his adoption in 1955 the inheritance rights of adopted children were governed by Chapter 35, Acts of the Legislature, Regular Session, 1943. Section 3 of this statute provided in pertinent part:

[F]rom the date of such decree, the rights, duties, privileges and relations, theretofore existing between the child and his or her parent or parents, shall be in all respects at an end, excepting the right of inheritance; and that the rights, duties, privileges and relations between the child and his or her parent or parents by adoption, shall thenceforth in all respects be the same, including the right of inheritance, as if the child had been born of such adopting parent or parents in lawful wedlock, except only as otherwise provided in this article.

An adopted child's right to inheritance to which Section 3 refers is spelled out in detail in Section 5 of the same statute which provides in pertinent part:

[E]xcept that such child shall not be capable of taking property expressly limited to the heirs of the body of the adopting parent or parents, nor property coming from the lineal or collateral kindred of such adopting parent or parents by right of representation: Provided, That on the death of the adopting parent or parents and the subsequent death of the child so adopted without issue, the property of such adopting deceased parent or parents shall descend to or be distributed among the next of kin of such parent or parents, and not the next of kin of the child adopted: Provided further, That if such adopting parent or parents shall have another child or children, theirs by birth, then, and in that case, the adopted child shall share the inheritance with the child or children born to the adopting parent or parents, and in such case also, such adopted child and such child or children by birth shall respectively inherit from and through each other the property and estate of the adopting parent or parents, as if all had been children of such parent or parents born in lawful wedlock.

At the time of the appellant's adoption, legitimate children who were adopted inherited from their natural parents and, in addition, enjoyed a limited right to inherit from their adoptive parents. In 1959, however, W.Va.Code 48-4-5 [1943] was amended by Chapter 47, Acts of the Legislature, Regular Session, 1959, and the same code section was again amended in 1967 by Chapter 52, Acts of the Legislature, Regular Session, 1967. W.Va.Code 48-4-5 as amended in 1967 was in effect at the time appellant's alleged and grandfather died and that code section foreclosed adopted children from inheriting by intestacy from natural parents. ( W.Va.Code 48-4-5 was again amended in 1969, but the amendment did not affect the substance of the statute). However, the same statute expanded the rights of adopted children to inherit through the lineal and collateral kindred of their adoptive parents and placed adopted children on almost exactly the same footing with regard to inheritance through their adopted families as natural children.

In the case of Wheeling Dollar Saving & Trust Co. v. Hanes, 160 W.Va. 711, 237 S.E.2d 499 (1977) we interpreted W.Va.Code 48-4-5 [1969] as placing an adopted child on a complete par with natural children and held that any testamentary or inter-vivos trust governed by our laws, regardless of the date of its execution, was to be construed under W.Va.Code 48-4-5 [1969]. Therefore, adopted children were entitled to take under any trust provision that used the word "child," or "children," or any general words which were loosely, if not technically, synonymous with the words "child" or "children" including such words as "natural children," "descendants," "heirs," or "issue".

Our laws concerning intestate succession are designed to effect the orderly distribution of property for decedents who lacked either the foresight or the diligence to make wills. The purpose of these statutes, then, is...