Shick v. Howe
| Decision Date | 14 February 1908 |
| Citation | 114 N.W. 916,137 Iowa 249 |
| Parties | MABEL RHODA SHICK, IOLA VOLUCIA GUPPY, and RHODA B. COTTLE, Appellants, v. ADA MAY HOWE |
| Court | Iowa Supreme Court |
Appeal from Dallas District Court.-- HON. EDMUND NICHOLS, Judge.
ELIAS CADWELL died intestate April 10, 1904, and Leander E. Cardell was duly appointed administrator of his estate. In due time he filed a list of heirs and a petition praying for an order of distribution. One Sally W. Howe, a niece of deceased, had she survived him, would have been entitled to 12/1344 of the estate. She left three children, Iola B. Guppy, Rhoda B Cottle and Demetrius C. Howe. Iola B. Guppy died before the intestate, but left her surviving a daughter of the same name and Mabel Rhoda Shick, and no question is made but that they are entitled to 4/1344 of the estate, as is Rhoda B. Cottle. Demetrius C. Howe died without issue in January prior to the death of the intestate, but left him surviving an adopted daughter, Ada May Howe. The issue raised by the record is whether she is entitled to inherit the 4/1344 of this estate which her foster father would have taken had he survived the deceased. The court ordered that such portion of the estate be distributed to her. The other heirs, named above, appeal.
Affirmed.
White Clarke & Clarke, for appellants.
John Shortley, for appellee.
Had Demetrius C. Howe, a son of the niece of deceased, survived him, he would have inherited 4/1344 of the estate. He died without issue shortly before the death of the intestate though leaving a daughter by adoption. Is she entitled to the share in the estate her foster father would have taken had he survived the deceased? Demetrius C. Howe was a resident of New York, and the adoption was in compliance with the laws of that State. The domicile of both adoptive parent and child was there, and for this reason the laws of New York fix their status and relation one to the other. This rule was laid down in Ross v. Ross, 129 Mass. 243 (37 Am. Rep. 321), where the court said:
It is a general principle that the status or condition of a person, the relation in which he stands to another person, and by which he is qualified or made capable to take certain rights in that other's property, is fixed by the law of the domicile, and that this status and capacity are to be recognized and upheld in every other State, so far as they are not inconsistent with its own laws and policy. Subject to this limitation, upon the death of any man, the status of those who claim succession or inheritance in his estate is to be ascertained by the law under which that status was acquired. His personal property is indeed to be distributed according to the law of his domicile at the time of his death, and his real estate descends according to the law of the place in which it is situated; but, in either case, it is according to those provisions of that law which regulate the succession or the inheritance of persons having such a status.
See, also, Gray v. Holmes, 57 Kan. 217 (45 P. 596, 33 L. R. A. 207); Fosburgh v. Rogers, 114 Mo. 122 (21 S.W. 82, 19 L. R. A. 201); Glos v. Sankey, 148 Ill. 536 (36 N.E. 628, 23 L. R. A. 665, 39 Am. St. Rep. 196); Melvin v. Martin, 18 R.I. 650 (30 A. 467).
The status or relationship being established, the right of inheritance of the adopted child, in so far as this case is concerned, is substantially the same in New York as in this State. The portion of section 64 of the Laws of New York of 1896, chapter 272 (Domestic Relations Law, 1897), relating to this subject reads:
The foster parent or parents and the minor sustain toward each other the legal relation of parent and child and have all the rights, and are subject to all the duties of that relation, including the right of inheritance from each other, except as the same is affected by the provisions in this section in relation to adoption by a stepfather, or stepmother, and such right of inheritance extends to the heirs and next of kin of the minor, and such heirs and next of kin shall be the same as if he were the legitimate child of the person adopting, but as respects the passing and limitation over of real or personal property dependent under the provisions of any instrument on the foster parent dying without heirs, the minor is not deemed the child of the foster parent so as to defeat the rights of remaindermen.
Under our statute as it stood at the time of the intestate's death, "the rights, duties and relations between the parent and child by lawful birth and the right of inheritance from each other shall be the same as between parent and children born in lawful wedlock." Section 3253, Code, as amended by chapter 132, Acts 29th General Assembly. The important inquiry is whether under the statute quoted the adopted child will take by descent through the foster parent. The point has in effect been decided by this court in construing the legitimation statutes. Section 3384 of the Code provides that "illegitimate children inherit from their mother and she from them," and section 3385 that ...
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