Scott v. Scott, 29512

• Decision Date: 05 June 1958
• Docket Number: No. 29512,29512
• Citation: 238 Ind. 474,150 N.E.2d 740
• Parties: G. Alfred SCOTT, Appellant, v. Gertrude E. SCOTT, as Administratrix of the Estate of Glenn A. Scott, deceased, and Gertrude E. Scott, as an individual, Appellee.
• Court: Indiana Supreme Court

Page 740

150 N.E.2d 740

238 Ind. 474

G. Alfred SCOTT, Appellant, v. Gertrude E. SCOTT, as Administratrix of the Estate of Glenn A. Scott, deceased, and Gertrude E. Scott, as an individual, Appellee.

No. 29512.

Supreme Court of Indiana.

June 5, 1958.

Rehearing Denied Sept. 24, 1958.

George W. Rauch of Batton, Harker & Rauch, Marion, for appellant.

John H. Edris, Bluffton, Campbell, Gemmill, Browne, Ewer & Torrance, Marion, for appellee.

LANDIS, Judge.

The administratrix of the estate of Glenn A. Scott, who died intestate, filed petition to determine heirship as between a second childless wife of decedent and his natural son by a former marriage who was thereafter adopted by his paternal grandparents.

The question on this appeal is whether the natural child of an intestate who is adopted by others during his minority and before the enactment of the Probate Code of 1953 ¹ is precluded from inheriting ² from such intestate's estate when such intestate died after the effective date of the New Probate Code providing, inter alia, 'such child * * * shall cease to be treated as the child of his natural parents * * * for purposes of intestate sucession * * *.' Under the prior law it has been held the act of adoption did not destroy the legal capacity to inherit from natural parents. ³ The lower court in the instant proceedings adjudged decedent's widow to be the sole and only heir of decedent and that the son was not entitled to any part of decedent's estate. The son has appealed to this court.

Appellant's first contention on this appeal is that the Probate Code of 1953 is not applicable to this case as the legislature did not intend § 208 thereof to apply to adoptions already consummated, but only to adoptions decreed after the effective date of the act.

It is a will settled rule in Indiana that the rights of heirs are determined by the statutes of descent in force at the time of the intestate's death. See: Griffis v. First Nat. Bank, 1907, 168 Ind. 546, 81 N.E. 490; Brown v. Critchell, 1887, 110 Ind. 31, 7 N.E. 888, 11 N.E. 486.

Appellant admits this may be true but says the legislature did not intend to change the law of descent and distribution as to adopted children who were already adopted. Appellant has pointed to no ambiguity in the statute, but the language of the section is plain and understandable. Furthermore, appellant has offered no evidence that the legislative intent was what he contends it to have been.

Appellant says that while the legislature may have had sufficient reason for desiring to change the right of inheritance of minor children adopted under present day law in order to solidify decrees of adoption and to minimize the adopted child ascertaining his natural parentage, that these reasons do not apply to the case of appellant who, although a minor when adopted, allegedly always knew of his adoption and was some forty-six years old when his natural father died intestate.

Whether appellant 'always knew of his adoption,' as he contends in his brief, we do not believe material, but we do note from the record that appellant was two years and fifty-one days old at the time of his adoption, and it does not appear to us very likely that at that tender age he knew of his adoption. Appellant's observation that in this case appellant happened to be forty-six years of age when his natural father died some forty-four years after his adoption by his grandparents at the age of two, can certainly have no bearing upon the policy behind the statutes governing the adoption of minors.

Appellant concedes adoption statutes should be construed to carry out the beneficent purposes of the adoption institution and to protect the adopted child, but says that courts should be reluctant to construe a statute so as to cut off an adopted child's interest of inheritance from his natural parents. Appellant in his argument overlooks the fact that while the statute does lessen his opportunity of inheritance in one respect, it increases his likelihood of inheritance in another respect. For the same statute provides for his inheriting directly from the collateral relatives of the adopting parents.

It is not our function as a court to consider which interest is greater or whether such a change is desirable, as that is a matter of policy for the legislature to determine, and with which within constitutional bounds we are not at liberty to interfere.

Appellant his cited § 7, ch. 146, p. 438, of the Acts of 1941 (Burns' § 3-121, 1946 Replacement) as authority that an adopted child should continue to inherit from his natural parents, such statute providing in this respect:

'* * * Nothing in this act [§§ 3-115-3-125] shall be construed to prevent a legally adopted person from inheriting property from his or her natural parent or other kind.'

This statute of course was not in force at the time of appellant's adoption in 1909, and appellant would ask that the 1941 statute be made thirty-one years retroactive to govern his inheritance from his natural parents although he insists the later Probate Code of 1953 cannot have retroactive application to affect the same inheritance. However, in any event, if these two statutes are repugnant and irreconcilably in conflict as apparently contended by appellant, the later expression of the legislature controls and repeals the former act to the extent of the repugnancy. The 1941 Act is therefore not available to appellant's position.

Appellant has cited cases from other jurisdictions in support of his contention that the adopted child should be permitted to inherit from his natural parents, but these cases are not particularly helpful when examined in the light of the particular statutes involved and the facts therein appearing.

Appellant's next contention is that appellant at the date of birth acquired an 'accrued right' within the meaning of Burns' § 6-102 (Acts 1953, ch. 112, § 102, p. 295), which provides that '* * * no accrued right, shall be impaired by its [the Probate Code of 1953's] provisions.'

The appellant at the time of his birth did not have a vested right in the estate of the natural parent who was then living, as it is well established under the common law and statutory law of this state that although children may become heirs on the death of their parent, they do not have a vested interest as such children in the property of the parent during the parent's lifetime, but may be disinherited.

See: Nesbitt v. Trindle, 1878, 64 Ind. 183, 187.

Appellant concedes in his brief the words 'accrued' and 'vested' are sometimes used in the same sense, but here attempts to distinguish them. Appellant cites the case of In re Klapp's Estate, 1917, 197 Mich. 615, 164 N.W. 381, 382, L.R.A.1918A, 818, as supporting his contention that the law 'irrevocably fixes [the natural child's] status in that respect the moment he is born.' However, that case was based upon a Michigan statute providing that all issue shall inherit the property of their parents, and it is therefore inapplicable to the case before us.

We are unable to see how appellant had either a vested or accrued interest in the estate of his natural father at the time of appellant's birth as he had only an expectancy therein which was dependent on the law in force at the time of such father's death.

See: Brown v. Critchell, 1887, supra, 110 Ind. 31, 41, 11 N.E. 486, in which the rule is stated as follows:

'* * * all the property of a deceased person descends or is otherwise disposed of according to the law in force at the time of his death, * * *.'

And see: Morin v. Holliday, 1906, 39 Ind. App. 201, 208, 77 N.E. 861, 862, in which it is stated:

'* * * upon the death of an ancestor an 'heir,' * * * is always appointed by law. The title is called into existence by the death of an ancestor, and its rights are governed by the law in force at the time of such death. * * * It being within the province of the Legislature to determine the rules of inheritance * * * it [the legislature] may provide, * * * as to who shall be heirs. * * *'

Appellant next contends that § 208 of the Probate Code, supra, as construed by the trial court is unconstitutional in that it discriminates between different classes of adoptees in an unreasonable and arbitrary manner.

It is true appellant has not cited the particular constitutional provisions he contends are violated by such statute, although he does state the statute 'discriminates between different classes of adoptees in an unreasonable manner.' However, any technical omissions by appellant in this respect we feel are waived by appellee by his failure to point them out, and by the statement of appellee in his brief setting forth the specific constitutional provision relied on by appellant as follows, towit:

'Appellant takes the position that Article 1, Section 23 of the Constitution of the State of Indiana is violated. This section reads as follows:

"The General Assembly shall not grant to any citizen or class of citizens privileges or immunities, which, upon the same terms shall not equally belong to all citizens." (Appellee's brief, pp. 35 and 36.)

Appellant cites no authorities in support of his contention that the statute is unconstitutional for arbitrarily discriminating between different classes of adoptees except the cases of Hanley v. State, Dept. of Conservation, etc., 1955, 234 Ind. 236, 123 N.E.2d 452, 126 N.E.2d 879, and McErlain v. Taylor, 1934, 207 Ind. 240, 192 N.E. 260, 94 A.L.R. 1284, which involved the veterans' fishing license law and the manual and mechanical laborers' preference law. We of course have no quarrel with the general principles of law stated in such cases, and in the Hanley case we should note it is stated (at pages 331, 332 of 234 Ind., at pages 453, 454 of 123 N.E.2d):

'In determining the constitutionality of the statute involved, we will indulge all reasonable presumptions in its favor. State ex rel. Harrison v. Menaugh (1898), 151 Ind. 260,...