Shehady's Estate, In re

• Decision Date: 06 December 1971
• Docket Number: No. 9270,9270
• Citation: 491 P.2d 528,1971 NMSC 118,83 N.M. 311
• Parties: In the Matter of the ESTATE of David S. SHEHADY, Deceased. Imogene SHEHADY, Appellant, v. Myrna Louise RICHARDS, now Myrna Louise Wolf, and David Richards, Appellees.
• Court: New Mexico Supreme Court

Page 528

491 P.2d 528

83 N.M. 311

In the Matter of the ESTATE of David S. SHEHADY, Deceased.

Imogene SHEHADY, Appellant, v. Myrna Louise RICHARDS, now Myrna Louise Wolf, and David

Richards, Appellees.

No. 9270.

Supreme Court of New Mexico.

Dec. 6, 1971.

[83 NM 311] McCormick, Paine, Feezer & Forbes, Carlsbad, for appellant.

Jerome D. Matkins, W. T. Martin, Jr., Carlsbad, for appellees.

OPINION

OMAN, Justice.

This cause is before us on a stipulation of facts, which are consistent with the findings made by the trial court, and a stipulation as to the issue to be determined by us on this appeal. This issue is:

'Whether or not the adoption of David Richards and Myrna Louise (Richards) Wolf by W. D. Richards prohibits them (David and Myrna) from inheriting from the decedent who was their natural father.'

The trial court ruled the adoption did not prohibit them from inheriting from decedent, and they are entitled to share in decedent's estate according to the New Mexico laws of descent and distribution. We reverse.

Briefly the pertinent facts are:

(1) Decedent was first married to Elizabeth on November 29, 1928. This marriage was terminated by divorce on February 18, 1933.

(2) From this marriage Myrna was born on September 23, 1929, and David was born on April 8, 1931.

(3) Subsequent to the divorce of Elizabeth from decedent, she married Richards.

(4) On June 10, 1942, Myrna and David were adopted by Richards and given his name. Richards was joined in the adoption proceedings by his wife, Elizabeth, the natural mother of Myran and David.

(5) Decedent and Imogene were married on January 11, 1966, and no children were born of this marriage.

(6) Decedent died intestate on July 16, 1970. He had no heirs by adoption.

(7) Imogene, his surviving widow, claims to be decedent's sole heir at law and entitled to his entire estate.

(8) Myrna and David claim to be heirs of decedent and entitled to an interest in decedent's estate under the New Mexico laws of descent and distribution.

The resolution of the issue presented depends very largely upon the meaning and effect of §§ 22--2--10, 22--2--19 (Repealed in 1971) and 29--1--17, N.M.S.A. 1953. These sections of our statutes provide:

'22--2--10. Effect of final adoption decree.--A final decree in adoption granted under this act (22--2--1 to 22--2--12) shall divest the parents and guardians of the person of the child of all legal rights and obligations in respect to the child, and the child shall be free from all obligations in respect to them, and such child shall be, from and after the entry of such decree, to all intents and purposes, the child of the person or persons adopting it as if born to him or them in lawful wedlock, except that, in a stepparent adoption, the rights and relationship between the child and the natural parent married to the petitioner remain unchanged by the adoption.' (Emphasis added)

'22--2--19. Name taken by adopted person--Rights of inheritance.--Upon the granting of the adoption, the adult person shall take the family name of the person adopting and shall be entitled to all the rights, including the right to inherit as now provided by law, of a natural child of such adopting person.' (Emphasis added)

'29--1--17. Inheritance by and from adopted child.--Whenever a child has been legally adopted, such child shall inherit from the adopting parents, and each of them, and the adopting parents and each or either of them shall inherit from the adopted child, to the same extent as if he were a natural child of the adopting parents. For all inheritance purposes without exception the adopted child shall be considered a natural child of the adopting parents and in the event of the death of such adopted child, his estate shall ascend, descend and be distributed as is otherwise provided by law for natural born children of the same family, all to the exclusion of the natural or blood parents of such child, Provided, however, where on (1) of the natural parents be united in bonds of matrimony to the other adopting parent then in such event the rules of inheritance as above set out shall attach as if said child were the natural child of both such parents.' (Emphasis added)

It is the public policy in New Mexico, as demonstrated by the foregoing provisions of our statutes and as announced by this court in Delaney v. First National Bank in Albuquerque, 73 N.M. 192, 386 P.2d 711 (1963), '* * * to treat adopted children the same as natural children. * * *' This policy is consistent with the developing trend to treat an adopted child as the natural child of the adopting parents and the family of those parents, and to terminate in every respect, when considering legal rights and obligations, the relationship with the child's natural parents. In re Silberman's Will, 23 N.Y.2d 98, 295 N.Y.S.2d 478, 242 N.E.2d 736 (1968); In re Estate of Wiltermood, 78 Wash.2d 238, 472 P.2d 536 (1970); In re Estate of Rusell, 17 Cal.App.3d 758, 95 Cal.Rptr. 88 (1971); People v. Estate of Murphy, 481 P.2d 420 (Colo.App.1971); Weitzel v. Weitzel, 16 Ohio Misc. 105, 239 N.E.2d 263 (1968); In re Estate of Jalo, 474 P.2d 355 (Or.App.1970); Epstein, Inheritance Rights of an Adopted Child in Texas, 6 Houston L.Rev. 350, 354 (1968); Halbach, The Rights of Adopted Children Under Class Gifts, 50 Iowa L.Rev. 971, 974 (1965).

The Supreme Court of Wisconsin in In re Estate of Topel, 32 Wis.2d 223, 145 N.W.2d 162 (1966), was confronted with the identical issue here raised, except the decedent was the natural paternal grandfather of the adopted children rather than the natural father. The statute there involved provided:

'48.92. Effect of adoption. (1) After the order of adoption is entered the relation of parent and child and all the rights, duties and other legal consequences of the natural relation of child and parent shall thereafter exist between the adopted person and the adoptive parents. The adopted person shall be entitled to inherit real and personal property from and through the adoptive parents in accordance with the statutes of descent and distribution, and the adoptive parents shall be entitled to inherit real and personal property from and through the adopted person in accordance with said statutes.

'(2) After the order of adoption is entered the relationship of parent and child between the adopted person and his natural parents, unless the natural parent is the spouse of the adoptive parent, shall be completely altered and all the rights, duties and other legal consequences of the relationship shall cease to exist.'

In neither the Wisconsin statutes nor in our statutes is there an express provision that an adopted child shall not succeed to or inherit from the estate of his natural parent or...