Russell v. Jordan

• Decision Date: 05 April 1915
• Docket Number: 8132.
• Court: Colorado Supreme Court
• Parties: RUSSELL et al. v. JORDAN et al.

147 P. 693

58 Colo. 445

RUSSELL et al. v. JORDAN et al.

No. 8132.

Supreme Court of Colorado, En Banc.

April 5, 1915

Casemaker Note: Portions of this opinion were specifically rejected by a later court in 363 P.2d 1046

Error to Rio Grdnde County Court; James W. White, Judge.

Action between Alexander Russell and others and Catherine Jordan and others. There was a judgment for the latter, and the former bring error. Reversed.

Palmer & True, of Saguache, Jesse C. Wiley, of Del Norte, and Albert L. Moses, of Alamosa, for plaintiffs in error.

A. L Jeffrey and Edwin H. Stinemeyer, both of Canon City, for defendants in error.

SCOTT J.

This is a case to determine heirship. Nathan Russell by his first wife had three children, who are the defendants in error. Subsequent to the death of this wife, he was again married to a widow with a minor child, named John Albers. By this marriage Russell had three children, who are the plaintiffs in error here. The second wife died, and thereafter Russell, in the manner provided by law, adopted her child, John Albers who took the name of John Albers Russell. Russell married a third time and afterward died without issue from the third marriage. The estate of Russell aside from the widow's share, was divided equally between all his children, including the adopted son. Later, John Albers Russell, the adopted son, died intestate, unmarried and without issue. This proceeding is upon error to the county court ordering an equal division of the estate of John Albers Russell between the six children of Nathan Russell.

It is the contention of plaintiffs in error that, being related by blood, they alone are entitled to participate in the distribution of the estate of John Albers Russell.

It is said that by the common law inheritable interest follows the blood; that adoption was unknown to the common law, and comes from the civil law; that it rests upon statutes entirely, and, while these statutes do in a degree modify and change the common-law rule of descent and distribution, this change goes no further than the provision of the statute; that the property of John Albers Russell descends, as would the property of any other decedent, to the next of kin, except as our statutes change the line of descent because of his adoption by Nathan Russell. This must be conceded to be a fair statement of the law upon this subject. Webb v. Jackson, 6 Colo.App. 211, 40 P. 467.

It is agreed by counsel that the question here to be determined has not been considered, nor have our adoption statutes been construed in that respect by the appellate courts of this state. Our statutes upon this subject for consideration here are as follows:

Section 635, Mills' Ann. St. 1912:

'A decree of adoption shall be rendered and entered by the court declaring such person the heir at law of the petitioner or petitioners and entitled to inherit from the petitioner or petitioners any or all property in all respects as if it had been petitioners' child born in holy wedlock.'

Revised Statutes 1908:

'Sec. 529. The natural parents shall, by such order, be divested of all legal rights and obligations in respect to the child, and the child be free from all legal obligations of obedience and maintenance in respect to them; such child shall be to all intents and purposes the child and legal heir of the person so adopting him or her, entitled to all the rights and privileges, and subject to all the obligations of a child begotten in lawful wedlock; but upon the decease of such person and the subsequent decease of such adopted child without issue, the property of such adopting parent shall descend to his or her next of kin, and not to the next of kin of such adopted child.'

'Sec. 7042. Legally adopted children shall be, to all intents and purposes, children and legal heirs of the person so adopting them, entitled to inherit as fully as children of the foster parents begotten in lawful wedlock, and in case any such adopted child shall die leaving no husband, wife or children, then the foster parents shall inherit as though such adopted child had been a child of such foster parents born in lawful wedlock.'

Section 526 was enacted in 1885, and appears to have been adopted bodily from the Ohio statutes. The statute was construed by the Supreme Court of Ohio before it was enacted by our Legislature. It has been held by this court that prior construction under such circumstances is at least strongly persuasive upon the courts of this state, for the reason that the presumption is that the law was enacted in the light of the construction given it by the courts of the state from which the statute was taken.

The Supreme Court of Ohio, in an opinion rendered in 1880, in the case of Upson v. Noble, 35 Ohio St. 655, in construing the statute that now constitutes our section 529, Rev. St. 1908, said:

'This statute, in so far as it changes the general course of descents and distribution of intestate property, and ignores all merit on account of blood, should be strictly construed. And while we find in it a clear declaration that the adopted child shall be the 'legal heir' of its adopting parents, there is no express provision that it shall be capable of inheriting from any other person, or of transmitting an inheritance to any one. It is true that it is declared to be the 'child,' to all legal intents and purposes, of the adopters, as if begotten in lawful wedlock; but, if the relation thereby created was intended to bring the parties to it within the operation of the general statute regulating descents and

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