Pyle v. Fischer

• Decision Date: 09 May 1939
• Citation: 128 S.W.2d 726,278 Ky. 287
• Parties: PYLE v. FISCHER.
• Court: Kentucky Court of Appeals

128 S.W.2d 726

278 Ky. 287

PYLE v. FISCHER.

Court of Appeals of Kentucky

May 9, 1939

Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division; Churchill Humphrey, Judge.

Suit by John Fred Fischer, sometimes known as Lloyd Rankin Fisher against R. L. Pyle for specific performance of contract to purchase realty. From judgment directing that contract be specifically performed, R. L. Pyle appeals.

Affirmed.

Stanley Briel, of Louisville, for appellant.

Cyril C. Sehlinger, of Louisville, for appellee.

CAMMACK Justice.

The appellant, R. L. Pyle, is appealing from a judgment in which it was directed that he specifically perform a contract for the purchase of a tract of real estate in Louisville Kentucky, from the appellee, John Fred Fischer. In seeking specific performance of the contract Fischer alleged that he claimed title to the property in question by reason of his being the adopted son of Mary E. Fischer under judgment of the Clark circuit court, Clark County, Indiana. It was set forth also that Mary E. Fischer left surviving her no husband; that at one time she was married to Fred C. Fischer but that he was granted an absolute divorce from her in the Clark circuit court, Clark County, Indiana. It was further alleged that Mary E. Fischer died intestate, a resident of Louisville, Jefferson County, Kentucky, in August, 1937 possessed of the property in question. It was set forth also that the appellee was more than 21 years of age, and was under no disability. Mary E. Fischer left surviving her no heirs other than the adopted child, the appellee herein. Mary E. Fischer and Fred C. Fischer were also known as Mary E. Fisher and Fred C. Fischer, and John Fred Fischer was also known as John Fred Fisher and Lloyd Rankin Fisher. The trial court overruled both the general and the special demurrers which the appellant filed to the petition.

The parties stipulated that the proceeding under which the appellee was adopted by Mary E. and Fred C. Fischer in Indiana was in substantial compliance with the Indiana law. The record shows further that Mary E. Fischer was given the care and custody of the adopted child (appellee) when Fred C. Fischer obtained a divorce from her. There is included in the record also a copy of the deed under which Mary E. Fischer became the owner of the property in question.

The sole question for determination is whether the appellee is the owner of the property under the Kentucky statutes of inheritance by reason of the judgment of adoption in the Indiana court.

The majority rule as to the extraterritorial effect of adoptions is set out in 1 Am. Jur., page 668. A number of cases are cited in support of this rule. The rule is: "The general rule, subject to exceptions hereinafter noted, is that the status acquired by adoption in one state will be recognized in another, and the rights of the child to inherit will be given effect as to property located in the latter state provided such rights are not inconsistent with those incident to the status of adoption created in such state, or with the laws and policy of such state. ***" For the minority rule, which holds that a statute relating to adoption has no extraterritorial operation, at least so far as concerns the descent of land in another state, see 1 Am.Jur., page 671, and also the case of Brown v. Finley, 157 Ala. 424, 47 So. 577, 21 L.R.A.,N.S., 679, 131...