Taylor v. Taylor

• Decision Date: 04 April 1931
• Parties: TAYLOR v. TAYLOR.
• Court: Tennessee Supreme Court

40 S.W.2d 393

162 Tenn. 482

TAYLOR v. TAYLOR.

Supreme Court of Tennessee.

April 4, 1931

Rehearing Denied July 1, 1931.

Appeal from Circuit Court, Maury County; W. B. Turner, Judge.

Contest over the will of Len Taylor, deceased, by J. Clark Taylor Sr., against John L. Taylor and others, in which Mrs. Luzelle Hodge Allen filed intervening petition. From an order dismissing the intervening petition, Mrs. Luzelle Hodge Allen brings error.

Affirmed.

Sam Holding, of Columbia, for plaintiff in error.

Seay Stockell, Edwards & Keeble, of Nashville, W. J. Webster, of Columbia, and J. C. Taylor, Jr., of Birmingham, Ala., J. C Voorhies, Horace Frierson, Jr., and L. Z. Turpin, all of Columbia, for defendants in error.

CHAMBLISS J.

This appeal is from an order dismissing the intervening petition of Mrs. Luzelle Hodge Allen seeking to become a party to a contest over the will of Len Taylor. Petitioner shows that she is the adopted daughter of Mary L. Hodge, a deceased sister of Len Taylor, and her claim is that by virtue of her adoption by this sister she has the right to participate in the contest as an heir of Len Taylor.

The question presented is whether or not an adopted child of a deceased sister of an intestate has the right to share in the estate of the intestate, who dies leaving neither widow, nor children, nor descendants of children, nor father, nor mother, but a brother, a sister, and children of a deceased brother.

The trial court conceived this issue to be controlled by Murphy v. Portrum, 95 Tenn. 605, 32 S.W. 633, 634 30 L. R. A. 263, opinion by Wilkes, J. Therein it was held that property descended from the father to an illegitimate child who had been adopted, but not legitimated, descends at his death intestate to his mother, rather than to the father's next of kin, under the statutes providing for inheritance by the mother from an illegitimate child.

Finding that, while the petition had prayed for both adoption and legitimation, the decree was for adoption only, the opinion proceeded:

"The differences between adoption and legitimation are marked, and, in some contingencies far-reaching. By legitimation the child acquires such a legal status as will enable it to inherit from its father, and through him from the father's next of kin, direct and collateral. Mill. & V. Code, § 4387; McKamie v. Baskerville, 86 Tenn. [ 2 Pickle] 459, 7 S.W. 194. Whereas by adoption he only acquires such legal status as enables him to succeed to the real and personal estate of the adopting parent, and beyond this gives him no inheritable right. He cannot inherit from the father's next of kin, nor can the father or his next of kin inherit from such child. Helms v. Elliott, 89 Tenn. [ 5 Pickle] 446, 14 S.W. 930 [10 L. R. A. 535]; McKamie v. Baskerville, 86 Tenn. [ 2 Pickle] 459, 7 S.W. 194."

And again, on page 610 of 95 Tenn., 32 S.W. 633, 635:

"The child being adopted, and the father dying, the property descended to and vested in the child, and it necessarily follows that in no event could the next of kin of the father inherit from the adopted child, as it had no inheritable blood as to them, and they none as to the adopted child."

Giving application to the views expressed in the above-quoted paragraphs, the court holds that, on the death of the adopted child, who was an illegitimate, the property passes to the mother, pursuant to the statute providing for descent of the property of an illegitimate child dying intestate. Shans. Code, § 4166.

If in like manner application of the views quoted be given to the situation here presented, it follows that this adopted daughter does not inherit from the next of kin, the brother of the adopting mother.

In Helms v. Elliott, 89 Tenn. 446, 14 S.W. 930, 10 L. R. A. 535, cited by Mr. Justice Wilkes, the case in judgment was this: Lewis Jones died leaving a daughter, a grandson by a deceased daughter, and an adopted son, as his only heirs at law. The grandson died inteste without child, brother, or sister, or descendants of either, and without wife, father, or mother. An aunt and an adopted uncle were living. It was held that the adopted uncle took no part of the estate.

The opinion in that case, by Caldwell, J., after quoting from the adoption statute, Act of 1851-52, c. 238, proceeds as follows:

"As between the adopting parent and the adopted child in the statute declares in the plainest terms that the adopted child shall, by the act of adoption, assume all the rights of a child born to such parent. The adopted child becomes entitled to the same protection and support as if born the child of the adopting parent, and is given the capacity of inheriting or succeeding to the estate of the adopting parent as heir or next of kin. The adopting parent assumes the same parental obligation to the adopted child as if such child were born to such parent, and the adopted child is clothed with the same rights in the estate of the adopting parent as an heir or next of kin. This is the full measure of the benefits conferred upon the adopted child. No claims are given upon any one except the adopting parent; no property rights are conferred except in the estate of such parent.

It is contended that the legal status of the adopted child is the same as that of the child born in lawful wedlock, and that, as a consequence, the same rights of heir and next of kin exist in the one case as in the other, not only as to the parent, but as to all other persons. This position is sound in part only. So far as the parental obligation and the estate of the adopting parent are concerned, it is well taken, but beyond that it is not tenable. As to the estates of other persons than the adopting parent, the law of adoption fixes no rights in the adopted child. It is only as to the adopting parent that the adopted child is made 'heir or next of kin' by the statute. By the adoption, Anderson Lewis, the adopted son, became invested with all the rights of heir and next of kin of Louie Lewis, the adopting father; but he was not thereby made the heir and next of kin of the children born to Louie Lewis. As to them, he occupied the same relation in law after the adoption as before,--that of a stranger in blood. The relation between Louie Lewis and Anderson Lewis was personal purely. It was limited and qualified. It was not a relation of blood, and, except as to the adopting parent, it created none of the rights which, by the general law, depend upon blood relationship. *** The statute of distribution, and not the statute of adoption, controls this case; and, unless the adoption made Anderson Lewis the next of kin of Lewis Jones, the decedent, he can have no share in the latter's estate, for it goes to his 'next of kin,' and to them only, by the express terms of the statute. The strict legal meaning of the phrase, 'next of kin' is 'next or nearest in blood.' In ascertaining who the next of kin is, the law follows the line of consanguinity. Such is the general rule of the common law. It is the same in this state under our general statute of distribution. It is so in every case, unless there be an express statutory exception. In the law of adoption, such an exception is made, but, as we have already seen, it applies alone to the estate of the adopting parent. The law of adoption arbitrarily establishes for the adopted child the relation of heir and next of kin to the adopting parent, but it does not establish such a relation to the descendants of the adopting parent. As to them and their estates, the adopted child stands in no other relation than that existing before the act of adoption. The adopted child becomes a beneficiary in the estate of the adopting parent by virtue of a particular provision of law which has no application to the estate of any other person. The estates of other persons are unaffected by that particular provision, and are left to be administered under the general laws of the state.

That the phrase 'next of kin' in the statute of distribution is there used in its strict legal sense, and means 'next in blood,' is manifest from the context and from the provision that the distribution shall be made among persons 'who are in equal degree equally.' The words 'who are in equal degree' signify...