Leichtenberg's Estate, In re

• Decision Date: 19 January 1956
• Docket Number: No. 33678,33678
• Citation: 7 Ill.2d 545,131 N.E.2d 487
• Parties: In re ESTATE of Barbara K. LEICHTENBERG. Victor MUELLER, Appellant, v. James J. REMICH et al., Appellees.
• Court: Illinois Supreme Court

Page 487

131 N.E.2d 487

7 Ill.2d 545

In re ESTATE of Barbara K. LEICHTENBERG.

Victor MUELLER, Appellant, v. James J. REMICH et al., Appellees.

No. 33678.

Supreme Court of Illinois.

Jan. 19, 1956.

Levinson, Becker & Peebles, Chicago (Don M. Peebles, William J. Lunn, and Halbert O. Crews, Chicago, of counsel), for appellant.

George A. Rooney, Maxfield Weisbrod, and Ross S. Welch, Chicago, for appellees.

DAILY, Justice.

Victor Mueller, the son of Anna and Jacob Mueller, was born a resident of the State of Wisconsin and resided therein with his natural parents until he was ten years of age, at which time, in 1918, he was taken to Chicago, Illinois, and immediately adopted by his aunt and uncle, Barbara and John Leichtenberg, who were residents of that city. The child became homesick in his new environment and after living with his adoptive parents for only two weeks, was returned to his natural parents in Wisconsin, who, thereafter in 1920, filed a petition in the county court of Washington County, Wisconsin, to readopt this child. The Leichtenbergs having consented to such action, a decree was subsequently entered which provided, among other things, 'that said child shall be fully restored to its natural parents as fully as though no prior adoption had been made.' Although Victor continued to live with his natural parents until the date of his marriage, he at no time either visited or corresponded with the Leichtenbergs.

John Leichtenberg died testate in 1936 and at the proceedings which followed in the probate court of Cook County, it was found, without objection, that he left no natural or adopted children surviving. Upon the death of Barbara Leichtenberg in 1952, a similar finding was entered by the same court. This time, however, objections thereto were filed by Mueller and appeal taken by him to the circuit court of Cook County, which held that the readoption of Mueller did not alter his right to inherit from his first adoptive parents. Upon appeal by certain blood relatives of the decedent, the Appellate Court for the First District reversed and remanded on this proposition of law. Appeal has now been taken to this court.

In seeking a reversal of the Appellate Court decision, Mueller now contends (1) that a Wisconsin statute prevented the adoption of a child by his natural parents, that the readoption decree was therefore void upon its face, and for that reason it could have had no effect upon the relationship created by the prior Illinois decree, and (2) that in any event, a child may inherit from successive sets of adoptive parents.

It must be noted that the first proposition was never raised in either the probate or circuit court but was presented for the first time by Mueller in his briefs to the Appellate Court. The latter tribunal recognized this fact and was of the opinion that by so acting, the parties had waived all rights to an adjudication of this question. A careful consideration of the problem leads us to agree with this result. Mueller, having filed objections in the probate proceedings, became the appellant in the circuit court and in the trial de novo therein was free to offer any theory or evidence which would support his claim of heirship. Nevertheless, the circuit court decree clearly shows that the only question presented was whether Mueller could inherit from the decedent even though readopted by his natural parents. The record also discloses that even though the Wisconsin judgment was put in evidence in these proceedings, no objection was made as to its validity. We have frequently held that the theory upon which a case is tried in a lower court cannot be changed on review. Blanchard v. Lewis, 414 Ill. 515, 112 N.E.2d 167; Chicago Title & Trust Co. v. DeLasaux, 336 Ill. 522, 168 N.E. 640; 3 Am.Jur. sec. 830. To do so would not only greatly prejudice the opposing party but would also weaken our system of appellate jurisdiction. In so holding, however, we are not unmindful of the principles laid down by this court in Becker v. Billings, 304 Ill. 190, 136 N.E. 581, and other cases which followed. On these and other occasions we have said that although an appellant's scope of review is limited by his assignment of errors, an appellee may sustain the lower court decree by any argument based upon issues appearing in the record. Therefore, when the questions of statutory limitations, Becker v. Billings, 304 Ill. 190, 136 N.E. 581; unconstitutionality, People ex rel. Jendrick v. Allman, 396 Ill. 35, 71 N.E.2d 44; plaintiff's negligence, Hazel v. Hoopeston-Danville Motor Bus Co., 310 Ill. 38, 141 N.E. 392, 30 A.L.R. 491; and scope of the Workmen's Compensation Act, Mueller v. Elm Park Hotel Co., 391 Ill. 391, 63 N.E.2d 365, were raised in the trial court, the appellee was free, upon review, to support the prior decision by any argument which was commensurate with the issues presented therein. In the present case, however, no issue as to the validity of the Wisconsin decree was presented in the lower courts. For that reason, this contention will not now be considered upon review. Thus, the only question before us at the present time is whether a child, having been readopted prior to the death of his first adopting parents, may share, as such, in their estate.

Since this is a case of first impression in this State, it may be helpful to consider similar cases arising in other jurisdictions. The first cases that considered this general subject were Russell's Adm'r v. Russell's Guardian, 14 Ky.Law Rep. 236, and Patterson v. Browning, 146 Ind. 160, 44 N.E. 993, both of which held that a child could inherit from his first adopting parents even though he was readopted after their death. In Villier v. Watson, 168 Ky. 631, 182 S.W. 869, L.R.A.1918A, 820, the Kentucky court, although faced with a different factual situation, relied solely on the Russell case in holding that a child, readopted prior to their death, could nevertheless inherit from his first adopting parents. A similar extension of the Patterson holding was accomplished by the Kansas court in Dreyer v. Schrick, 105 Kan. 495, 185 P. 30. Thereafter, as the problem arose in other jurisdictions, no distinction was made between the above-cited cases. Iowa relied upon the Patterson, Dreyer, and Villier cases in holding that a child could inherit from the first adoptive parents regardless of when he was readopted. Holmes v. Curl, 189 Iowa 246, 178 N.W. 406. Washington relied upon the Patterson, Dreyer, Villier, and Holmes decisions to reach a similar result. In re Egley's Estate, 16 Wash.2d 681, 134 P.2d 943, 145 A.L.R. 821. The same snow-balling of citations accounted for Hawkins v. Hawkins, 218 Ark. 423, 236 S.W.2d 733, and In re Myres' Estate, 205 Misc. 880, 129 N.Y.S.2d 531. Only Michigan and Oklahoma refused to follow this majority view. In the cases of In re Klapp's Estate, 197 Mich. 615, 164 N.W. 381, L.R.A.1918A, 818; In re Carpenter's Estate, 327 Mich. 195, 41 N.W.2d 349, and In re Talley's Estate, 188 Okl. 338, 109 P.2d 495, 132 A.L.R. 773, these States have held that a second adoption prior to the death of the first adopting parents, destroys any and all relationships created by the first decree, including the right to inherit. Those who favor the majority view argue that since the adopting parents are said to stand in the same relationship to the child as did his natural parents, and since an adopted child may inherit from his natural parents, he should also be able to inherit from successive sets of adopting parents. The minority proponents, on the other hand, deny the logic in this syllogism.

We are inclined to agree with the latter. Adopting parents do not, in every respect, stand in the same relationship to the child as do his natural parents. Even though a child may be the subject of several adoption decrees, he forever remains the son of his natural parents. As we said in Dwyer v. Dwyer, 366 Ill. 630, 10 N.E.2d 344, 346: 'An adoption of a child does not work a complete severance in the relationship between the child and its natural parents. The duty of a parent to support his minor child arises out of the natural relationship, and while that duty may also be imposed upon the adoptive parents by statutory enactment, the natural parent may, if necessity arises, be required to perform that duty.' Historically, there has always been and still remains a clear distinction between these two relationships. Until very recently in this State, an adopted child could not inherit from lineal or collateral kindred of his adopting parents nor were they, with certain exceptions, considered as his heirs for purposes of inheritance, and even now, this right is limited. (Ill.Rev.Stat.1955, chap. 3, par. 165.) Furthermore, even though one may be an adopted child of his adoptive parents and a natural child of his natural parents, it is difficult to see how he could be an adopted child of successive sets of adoptive parents at the same time.

The right to inherit is clearly statutory, Jahnke v. Selle, 368 Ill. 268, 13 N.E.2d 980; Weyer v. Barwell, 327 Ill. 214, 158 N.E. 475, and may be given or taken away at the discretion of the legislature. McLaughlin v. People, 403 Ill. 493, 87 N.E.2d 637. As applied to children, this right of succession is controlled exclusively by sections 11, 12, 13 and 14 of our Probate Act. (Ill.Rev.Stat.1955, chap. 3, pars. 162-165.) Under these sections, respectively, a child takes as a descendant of his natural parents, the illegitimate as a descendant of his mother or maternal ancestors, the posthumous as a descendant of his natural parents, and the adopted child as descendant of his adopting parents. In re Estate of Tilliski, 390 Ill. 273, 61 N.E.2d 24. Under these provisions, a child may inherit from his natural parents and also from his adoptive parents. If, upon the death of his adoptive parents and after his rights of inheritance therein have vested, a child is readopted, he then becomes the...