McCune v. Oldham, 41199.
| Decision Date | 16 February 1932 |
| Docket Number | No. 41199.,41199. |
| Citation | 240 N.W. 678,213 Iowa 1221 |
| Parties | MCCUNE ET AL. v. OLDHAM ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Warren County; J. H. Applegate, Judge.
Action in partition involving the estate of Emma Sipe, intestate. No legal question is involved, as to the heirs of the intestate under the statute of descent, except as between the appellee Honour M. Kelley, the natural child of C. E. McCune, and the appellant Horace Edgar Hanson, a legally adopted child of said C. E. McCune and wife, Alice, both of whom died prior to Emma Sipe.
The trial court entered a decree and supplemental decree in favor of Honour M. Kelley, and denied any right, title, or interest in and to the real estate involved as to the adopted child, Horace Edgar Hanson, who appeals.
Reversed.
W. L. Ryan, of Des Moines, for appellant.
S. E. Prall, of Indianola, for appellee.
DE GRAFF, J.
This a partition suit involving certain described Warren county, Iowa, real estate, of which Emma Sipe intestate died seized. The record facts on this appeal are simple and not in dispute. The primary question involves the statute of descent of Iowa. The facts disclose that one Emma Sipe died August 7, 1930, intestate, parentless, spouseless, and childless. Her brother James McCune and her sister Iola M. Chapin, plaintiffs in this cause, were then living. Her sister Jennie Cummings was dead, but was survived by a daughter, Frances Curtis. Her sister Ida Oldham died prior to Emma Sipe, but left surviving her the following named children: Vergel E., Joseph J., Court, and Harold Oldham, Lela Kingdon, Greta O'Connor, and Coral Fuller. Her brother, C. E. McCune died prior to Emma, but left surviving him a daughter, Honour M. Kelley, and a legally adopted son, Horace Edgar Hanson.
The primary legal dispute involved herein is between Horace Edgar Hanson, the adopted child of C. E. McCune, deceased, and Honour M. Kelley, the natural child of C. E. McCune. The defendant-appellee Honour M. Kelley contends that, by reason of the fact that Horace Edgar Hanson is an adopted son of C. E. McCune and Alice, his wife, both of whom are deceased, he is not entitled, under the law of descent of Iowa, to share in that portion of Emma Sipe's intestate property, which fell to his adopting father, C. E. McCune, deceased, who was an heir of the estate of Emma Sipe. The adopted son, Horace, contends that he is entitled to share equally in the estate of his adopting father, C. E. McCune, with Honour M. Kelley, the natural child of said McCune. This is the crux of the instant controversy.
[1] The right to take property by devise or by descent is a statutory privilege. In re Estate of Bradley, 210 Iowa, 1013, loc. cit. 1017, 231 N. W. 661. See, also, In re Estate of Emerson, 191 Iowa, 900, loc. cit. 905, 183 N. W. 327. We therefore must turn to the statutes governing descent to determine whether the adopted son of C. E. McCune is entitled to share equally with the natural child of C. E. McCune, deceased.
It is conceded that the estate of the intestate Emma Sipe owed no debts. It is conceded that the appellant, Horace Edgar Hanson, is the legally adopted son of C. E. McCune and his wife, Alice, both of whom are dead. It is also conceded that the defendants heretofore named, except the adopted son, Horace, are the collateral heirs of the intestate, Emma Sipe. Section 12025, Code 1927, provides: “If both parents are dead, the portion which would have fallen to their share by the above rules shall be disposed of in the same manner as if they had outlived the intestate and died in the possession and ownership of the portion thus falling to their share, and so on, through ascending ancestors and their issue.”
Therefore we must assume that the parents momentarily outlived the intestate and died in possession and ownership of the property of Emma Sipe. But, both having died, their respective portions descended “in equal shares to his [[[their] children, unless one or more of them is dead, in which case the heirs of such shall inherit his or her share in accordance with the rules herein prescribed, in the same manner as though such child had outlived its parents.” Section 12016, Code 1927.
Section 10500, Code 1924, was repealed by chapter 218, Acts of the Forty-Second General Assembly, which legislation (chapter 218, 42d Gen. Assem.) was approved April 7, 1927, and became effective and in force July 1, 1927. Section 6 of said chapter 218 is captioned: “Status of the adopted child,” and may now be found in section 10501-b6, Code 1927. It now reads, relative to the status of an adopted child: “Upon the entering of such decree [of adoption], the rights, duties and relationships between the child and parent by adoption shall be the same that exist between parents and child by lawful birth and the right of inheritance from each other shall be the same as between parent and children born in lawful wedlock.” Section 10501-b6, Code 1931.
The decision in Cook, Adm'r, v. Underwood et al., 209 Iowa, 641, loc. cit. 645, 228 N. W. 629, section 10501-b6, supra, may be clearly differentiated on the...
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Dickenson v. Buck
...pages 453 and 454. As illustrative of the right of the adopted child to inherit through the foster parent is the case of McCune Oldham, 213 Iowa 1221, 240 N.W. 678 where the court held that the adopted child was entitled to the share in the estate that the foster parent would have received ......