Sears v. Minchew

• Court: Georgia Court of Appeals
• Writing for the Court: Benjamin Smith, Jr.; GARDNER
• Citation: Sears v. Minchew, 93 S.E.2d 748, 94 Ga.App. 126 (Ga. App. 1956)
• Decision Date: 02 July 1956
• Docket Number: No. 36093,No. 2,36093,2
• Parties: Mrs. H. F. SEARS, Jr. v. Warren MINCHEW, Administrator, et al

Page 748

93 S.E.2d 748

94 Ga.App. 126

Mrs. H. F. SEARS, Jr. v. Warren MINCHEW, Administrator, et al.

No. 36093.

Court of Appeals of Georgia, Division No. 2.

July 2, 1956.

Warren Minchew, administrator of the estate of H. F. Sears, Jr., filed and action for declaratory judgment in the Superior Court of Atkinson County, naming as defendants Mrs. H. F. Sears, Jr., widow of the intestate, H. F. Sears III, son of the intestate, and Jeanette Lentz Bryant. The latter was the daughter of the intestate by his first marriage and was subsequently taken to Florida by the mother after a divorce between the parties and adopted in Florida by her mother's second husband. Under Florida law, which was properly pleaded, a child in the position of Jeanette Bryant might inherit from her natural father in spite of the fact of having subsequently acquired an adopted father, and it was contended by the defendant widow (a) that in this proceeding in Georgia where the administration of the estate of the intestate was proceeding the Florida law would not control, and also (b) that under Georgia statutes the right of Jeanette Bryant to inherit from her natural father was cut off by the adoption proceedings. The case was tried on an agreed statement of facts and judgment declared in favor of the right of the adopted child to inherit from her natural parent. The case was appealed to this court, and this court certified to the Supreme Court the following questions:

'1. Is the right of an adopted child admitted to be under the jurisdiction of the Superior Court of Atkinson County, Georgia, to inherit from its natural father who died intestate subsequent to the adoption proceedings controlled by the laws of the State of Georgia or Florida under circumstances as follows: The father of the child a resident of Georgia, died in Georgia, leaving real and personal property located in Georgia; the child was born in Georgia and, following a divorce of her natural parents, was taken to Florida by the mother, to whom the court had awarded custody of the child, and while still a minor the child was adopted with the consent of the natural father by the second husband of the natural mother, a Florida resident, in an adoption proceeding in Florida?

'2. (a) If the answer to the first question is that the laws of Georgia control, does the following language from the Act of 1941 relating to adoption (Ga.L.1941, pp. 300, 305; Code, Ann.Supp. § 74-414) operate so as to divest an adopted child, under Georgia law, from inheriting from her natural father:

"Thereafter, the relation between such person and the adopted child shall be as to their legal rights and liabilities, the relation of parents and child, except that petitioner or petitioners shall never inherit from the child. When the final adoption shall have been granted, the parents of the child shall be divested of all legal rights or obligations from them to the child or from the child to them; and the child shall be free from all obligations of any sort whatsoever to the said natural parents'?

'(b) If not, does the following language from the amendatory act of 1949, (Ga.L.1941, p. 1157) operate so as to divest the adopted child, under Georgia law, from the right of inheritance from its natural father:

"Said adopted child shall be considered in all respects as if it were a child of natural bodily issue of petitioner or petitioners, and shall enjoy every right and...