Miner's Estate, In re

• Decision Date: 06 June 1960
• Docket Number: No. 60,J,60
• Citation: 359 Mich. 579,103 N.W.2d 498
• Parties: Matter of the ESTATE of Louise H. MINER, Deceased. Appeal of John Miner CARUTHERS, Contestant and Appellant. anuary Term.
• Court: Michigan Supreme Court

Page 498

103 N.W.2d 498

359 Mich. 579

Matter of the ESTATE of Louise H. MINER, Deceased Appeal of John Miner CARUTHERS, Contestant and Appellant.

No. 60, January Term.

Supreme Court of Michigan.

June 6, 1960.

George Brett Shaeffer, Detroit, Rosenburg, Painter & Stanton, Lawrence L. Bullen, Associate, Jackson, for appellant.

Maxwell F. Badgley, Jackson, for appellee.

Before the Entire Bench.

EDWARDS, Justice.

Louise H. Miner died October 5, 1957, leaving a will which bequeathed the bulk of her estate to a surviving adopted daughter, Kathleen Miner Crary. The will also contained a bequest of $15,000 to the City Bank & Trust Company of Jackson, Michigan, as trustee, and directed payment of the income on this sum to John Miner Caruthers, referred to in the will as testatrix' grandson.

John Miner Caruthers appeared and filed objections to the will, charging fraud and undue influence and that testatrix lacked mental competence to make a valid will. City Bank & Trust Company, as one of the executors and proponents of the will, thereupon filed a motion to dismiss the contest on the ground that the contestant was not a person who had any interest in the estate of Louise H. Miner. The circuit judge, after a hearing and the taking of testimony on the motion no dismiss, granted it and contestant Caruthers appeals.

From the record before the circuit judge concerning the motion to dismiss, the following relevant and undisputed facts appear: John Miner Caruthers is the natural son of Maxine Miner Caruthers and her husband, Eugene Caruthers. His mother had been the subject of an adoption petition and order filed in Jackson county probate court. The adoption under was dated July 2, 1919, and was based upon a consent signed by the Michigan's Children's Home Society.

The adoption file, which was introduced in the hearing on the motion to dismiss, contained a release from the natural and legal mother, but did not contain a release from the father although the release referred to the child as legitimate.

Maxine Miner Caruthers died in 1944. It appears from this record that her adoption was never attacked or disputed in any way during the lifetime of the parties immediately concerned with the adoption.

This case presents two interesting questions pertaining to the Michigan adoption statutes:

First, is the natural and legal son of a (now deceased) mother who was herself an adopted child, an 'interested party' for purpose of contesting the will of the person who adopted his mother?

Second, on this record, is the adoption order of 1919 subject to collateral attack and void because the adoption file does not contain or refer to a release from the father?

The circuit judge held that contestant was not an interested party because he was neither 'issue' nor 'a lineal descendant' within the meaning of the Michigan statutes of descent and distribution. Having thus decided the first question, he had no need to pass on the second.

As to the first question, the controlling statutory language pertaining to will contests is 'any interested party.' C.L.1948, § 701.36 (Stat.Ann.1943 Rev. § 27.3178). Contestant claims to be an interested party in the will because he claims that if it is disallowed, he thereupon becomes an heir at law of deceased under the Michigan statutes of descent and distribution.

The applicable statute providing for the descent of real property is as follows:

'When any person shall die seized of and lands, tenements or hereditaments, or of any right thereto, or entitled to any interest therein fee simple, or for the life of another, not having lawfully devised the same, they shall descend, subject to the payment of all prior charges as provided in this act, in the following manner:

'First, 1/3 to his widow, and the remaining 2/3 to his issue; and, if he leaves no widow, then the whole thereof to his issue, and, if the intestate shall be a married woman, 1/3 thereof to her husband and the remaining 2/3 to her issue; and, if she leaves no husband, then the whole thereof to her issue.' C.L.1948, § 702.80 (Stat.Ann.1943 Rev. § 27.3178).

The word 'issue' is statutorily defined as including 'all the lawful lineal descendants.' C.L.1948, § 8.3, subd. 8 (Stat.Ann.1952 Rev. § 2.212).

Hence, the question becomes, is Caruthers, on this record, a 'lawful lineal descendant' of the deceased, Louise H. Miner?

Just two weeks prior to the death of Louise H. Miner in 1957, an amendment to the adoption statutes of Michigan became effective. The section with the new language italicized now reads as follows:

'Upon the entry of the order of adoption, such child shall, in case of a change of name, thereafter be known and called by said new name, and the person or persons so adopting said child shall thereupon stand in the place of a parent or parents to such child in law, in all respects as though the adopted child had been the natural child of the adopting parents, and be liable to all the duties and entitled to all the rights of parents thereto. Thereupon there shall be no distinction in any way between the rights and duties of natural children and adopted children, and such child shall thereupon become the heir at law of such adopting person or persons, as well as the heir at law of the lineal and collateral kindred of the adopting person or persons, and entitled to inherit property from such person or persons in accordance with the law of descent and distribution of this state: Provided, That nothing herein shall affect his right to inherit from or through his natural parents. On the death of the adopting parents, custody of the adopted child shall be determined as though the child was natural born of the adopting parents.' C.L.S.1956, § 710.9, as amended by P.A.1957, No. 255 (Stat.Ann.1943 Rev.1959 Cum.Supp. § 27.3178).

It appears clear that it is this statute which is controlling in our present case since it is the one which was in effect at the death of the intestate. In re Loakes' Estate, 320 Mich. 674, 32 N.W.2d 10; In re Dempster's Estate, 247 Mich. 459, 226 N.W. 243.

See, also, 18 A.L.R.2d 960.

Appellant contends that absent the 1957 amendatory language just quoted, he would still be entitled to be regarded as an heir at law under the statutes of descent and distribution. In this regard, he relies upon In re Rendell's Estate, 244 Mich. 197, 221 N.W. 116, and Fisher v. Gardnier, 183 Mich. 660, 150 N.W. 358, as well as a 1956 opinion of the attorney general, No. 2405.

The case upon which the trial judge based his grant of the motion to dismiss was decided subsequent to both cases and the opinion. It held squarely that for purposes of a statute granting a State inheritance tax exemption, the term 'lineal descendant' did not include the natural child of an adopted daughter of a decedent. In re Smith's Estate, 343 Mich. 291, 72 N.W.2d 287, 51 A.L.R.2d 847.

The opinion in this case contained this language (343 Mcih. at page 299, 72 N.W.2d at page 291):

'Able Amicus Curiae argues to us that:

"* * * a sound policy requires that the consequences of an adoption should, for the adopting parents, be the same as the consequences of a natural birth and that if a couple has through the adoption process accepted the responsibilities of parents that couple should have the same rights and privileges as are enjoyed by others who became parents by the birth process.'

'The argument is compelling but it is addressed to the wrong forum. It lies within the province of the legislature, not of this Court, to assimilate the position of the adopted child completely to that of the natural child, should sound social policy so require.' $It was decided October 3, 1955. Subsequent thereto, the Michigan legislature enacted the amendments to the...