McFadden v. McNorton

• Decision Date: 10 March 1952
• Docket Number: No. 3878,3878
• Citation: 69 S.E.2d 445,193 Va. 455
• Parties: A. SAMPSON MCFADDEN, IN HIS OWN RIGHT AND AS ADMINISTRATOR, ETC. v. NELSON ROBERT MCNORTON. Record
• Court: Virginia Supreme Court

Page 445

69 S.E.2d 445

193 Va. 455

A. SAMPSON MCFADDEN, IN HIS OWN RIGHT AND AS ADMINISTRATOR, ETC. v. NELSON ROBERT MCNORTON.

Record No. 3878.

Supreme Court of Appeals of Virginia

March 10, 1952.

Sacks & Sacks, for the appellant.

Douglass & Diggs, for the appellee.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

This appeal involves the right of Nelson Robert McNorton, a legally adopted child, to inherit, according to the statutes of descent and distribution, the real estate of a deceased sister of his adopting father.

Anna McNorton McFadden, wife of A. Sampson McFadden, died intestate in the city of Norfolk, Virginia, on July 1, 1948, leaving several parcels of real estate. She left no children, no descendants of any children, no parents, no sisters or brothers, no descendants of any sister or brother surviving her. Her husband was her only survivor.

Nelson Robert McNorton, when he was about 12 or 13 years old, was legally adopted by N. F. McNorton and Carrie R. McNorton, his wife, by a final order entered in the Circuit Court of the county of York, Virginia, on September 14, 1933. The adopting father, a brother of Anna McNorton McFadden, died in 1948, a few months prior to the death of his sister.

The adopted child, hereinafter referred to as appellee, instituted this proceeding against A. Sampson McFadden, in his own right and as administrator of the estate of Anna McNorton McFadden, deceased, asking the court to determine whether he or McFadden was the sole heir at law of the decedent.

The appellee claimed that he was the sole heir at law and entitled to all the real property of which Mrs. McFadden died seized and possessed, subject to her husband's right of curtesy therein, by virtue of sections 63-357 and 63-358 of the Code of Virginia, 1950, Acts 1942, page 258, hereinafter quoted, and the statute of descent and distribution, § 64-1, Code of Virginia, 1950.

A. Sampson McFadden, hereinafter referred to as appellant, denied that appellee 'was a relative and/or an heir at law of Anna McFadden.' He claimed, first, that appellee's rights should be determined under the adoption statute in force at the time of his adoption in 1933, rather than by the statute in effect at the date of Mrs. McFadden's death in 1948; and, second, that, if the latter statute controlled, the appellee still could not prevail because he did not come within any class specified in our statute of descent and distribution, since he was not, in fact, a descendant of Mrs. McFadden or her brother.

There is no merit in the first contention of appellant. Although there is some authority to the contrary, we are in accord with the great weight of authority which holds that the right of an adopted child to inherit is to be determined by the law in force at the death of the person from whom the inheritance is claimed. Mott v. National Bank of Commerce, 190 Va. 1006, 1011, 59 S.E. (2d) 97; Blodgett v. Stowell, 189 Mass. 142, 75 N.E. 138; Brooks Bank, etc., Co. v. Rorabacher, 118 Conn. 202, 171 A. 655; Sorenson v. Rasmussen, 114 Minn. 324, 131 N.W. 325, 35 L.R.A. (N.S.) 216, 219; Anderson v. French, 77 N.H. 509, 93 A. 1042, L.R.A. 1916A, 660, 664; 2 C.J.S., Adoption of Children, § 63-b, page 453; 16 Am. Jur., Descent and Distribution, § 12, page 77.

The identical question raised by the second contention of appellant has not heretofore been presented to this court. In Mott v. National Bank of Commerce, supra, at page 1012, it was left open, because the Act of 1942, hereinafter mentioned, was not there involved; but we took occasion to say that a statement in Fletcher v. Flanary, 185 Va. 409, 38 S.E. (2d) 433, 166 A.L.R. 145, that adopted children 'take nothing as heirs or distributees from remote ancestors,' was not necessary to a decision in that case. The answer to the question now before us is to be found in our statute of descent and distribution as supplemented by the adoption laws in force at the time of the death of Mrs. McFadden.

So far as is pertinent to this case, our statute of descent and distribution, Code of Virginia, 1950, § 64-1; Code of 1919, § 5264, provides that 'When any person having title to any real estate of inheritance shall die intestate as to such estate, it shall descend and pass * * *,' in the following course:

'First: To his children and their descendants.

'Second: If there be no child nor descendants of any child, then to his or her father and mother, or the survivor.

'Third: If there be neither father nor mother, then to his or her brothers and sisters, and their descendants.

'Fourth: If there be none such, then the whole shall go to the surviving consort of the intestate.'

Manifestly, the appellee did not come within the classification of either of the first two sections. If he is entitled to inherit the estate of his adopting father's deceased sister, he must have a status within the classification of the third section by virtue of the adoption statute.

In Virginia, the whole field of adoption is covered by legislative action, beginning with 'An Act to legalize the adoption of minor children by adult persons,' chapter 170, Acts 1891-1892, page 262. In the interim, between 1892 and 1942, the legislature made certain material changes in the procedure looking to adoption; but failed to make any change in the status conferred upon the adopted child. The original Act was amended by Acts 1893-94, page 75, Acts 1897-98, page 38; Acts 1910, page 466, carried in the Code of 1919, as section 5333; Acts 1920, page 514; Acts 1922, page 839; Acts 1936, page 542, and also carried in the Code of 1936, Michie, as section 5333.

Section 5333, Code of 1936, Michie, reads, in part, as follows:

'The natural parents shall, by such final order of adoption, be divested of all legal rights and obligations in respect to the child, and the child shall be free from all legal obligations of obedience and maintenance in respect to them; such child shall from and after the entry of the interlocutory order herein provided for, be, to all intents and purposes, the child and heir at law of the person so adopting him or her, unless and until such order is subsequentially revoked, entitled to all the rights and privileges and subject to all the obligations of a child of such person begotten in lawful wedlock; but on the decease of such person and the subsequent decease of such adopted child without issue, the property of such adopting parent still undisposed of shall descend to his or her next of kin, and not to the next of kin of such adopted child.' Acts of Assembly, 1922, page 841.

In construing the effect of the above statute, we held that an adopted child was to be considered as an heir only of the person making the adoption and was not an heir of all the relatives of the adopter. Munday v. Munday, 164 Va. 145, 178 S.E. 917, 98 A.L.R. 187; Dickenson v. Buck, 169 Va. 39, 192 S.E. 748; Fletcher v. Flanary, supra.

In Dickenson v. Buck, supra, page 48, decided in 1937, we significantly said, 'that an adopted child inherits from its foster parents but not through them.'

In each of the cases next above cited, the rights claimed were based on the provisions of a will or deed, and not upon any statute of descent and distribution. It is important to note that we are here dealing with the right of an adopted child to inherit according to the statute of descent and distribution under the provisions of a subsequent statute.

In 1942, subsequent to our decision in Dickenson v. Buck, supra, the legislature revised, amplified and recodified the law relative to the adoption of minor children, Acts 1942, chapter 205, page 255, by adding to the Code a new chapter, numbered 216-A, and twelve new code sections numbered 5333-a to 5333-1, prescribing the procedure and incidents thereof, and repealed Code, 1936, section 5333, and the amendments thereto. Subsections (a) and (b) of the new section 5333-h, Code 1942, Michie, now respectively appear as sections 63-357 and 63-358 in Code of 1950.

By Acts of 1944, page 216, and Acts of 1946, pages 51, 202 and 499, certain procedural changes were made; but no change was made in section 5333h of the Code of 1942, Acts 1942, chapter 205, at page 258.

Sections 63-357 and 63-358 of the Code of 1950 read as follows:

' § 63-357. Legal effects of adoption. -- The natural parents, and the parents by previous adoption, if any, other than any sich parent who is the husband or wife of one of the petitioners, shall, by such final order of adoption, be divested of all legal rights and obligations in respect to the child, and the child shall be free from all legal obligations of obedience and maintenance in respect to them. Any child adopted under the provisions of this chapter shall, from and after the entry of the interlocutory order or from and after the entry of the final order where no such interlocutory order is entered, be, to all intents and purposes, the child of the person or persons so adopting him, and, unless and until such interlocutory order or final order is subsequently revoked, shall be entitled to all the rights and privileges, and subject to all the obligations, of a child of such person or persons born in lawful wedlock.' (1942, p. 258; Michie Code 1942, § 5333h; R.P. 1948, § 63-357.)

' § 63-358. Descent and distribution. -- For the purpose of descent and distribution, a legally adopted child shall inherit, according to the statutes of descent and distribution, from and through both the natural parents and the parents by adoption from the time of entry of an interlocutory order. If an adopted child shall die intestate, without issue surviving him, his property shall pass, according to the statutes of descent and distribution, to those persons who would have taken had the decedent been the natural child of the adopting parents; provided, however, that any property, real or personal, derived by deed, or...