Tsilidis v. Pedakis, C-228

• Decision Date: 11 July 1961
• Docket Number: No. C-228,C-228
• Citation: 132 So.2d 9
• Parties: Demetrius TSILIDIS, also known as Demetrius Prassas, Appellant, v. Harry PEDAKIS and Gus Calfas, individually and as co-executors of the Estate of Constantine N. Prassas, deceased, and Ambrosia Chackney, a widow, Appellees.
• Court: Florida District Court of Appeals

Page 9

132 So.2d 9

Demetrius TSILIDIS, also known as Demetrius Prassas, Appellant, v. Harry PEDAKIS and Gus Calfas, individually and as co-executors of the Estate of Constantine N. Prassas, deceased, and Ambrosia Chackney, a widow, Appellees.

No. C-228.

District Court of Appeal of Florida, First District.

July 11, 1961.

Yonge, Beggs & Lane, Pensacola, for appellant.

Coe & Coe, Pensacola, for appellees.

STURGIS, Judge.

This is an appeal from a decree of the Court of Record of Escambia County, Beall, J., holding that the appellant, Demetrius Tsilidis, is not entitled under the provisions of Section 731.11, Florida Statutes, F.S.A., commonly referred to as the Pretermitted Heir Statute, to inherit the estate of one Constantine Prassas, deceased.

The appellant was a resident of the Kingdom of Greece and twenty-five years of age when, at the instance of decedent, Constantine Prassas, a citizen of Florida, he was adjudged by a court of that nation to be the adoptive child of said Prassas who was never a married person and had no natural or other adopted children. Prassas died after the decree of adoption was entered, leaving an estate of inheritance in Florida and a will that was executed prior to the entry of the foreign decree of adoption, which will does not name the appellant as a beneficiary or otherwise refer to him. Following expiration of the time allowed for filing of claims against the estate, appellant made demand upon appellees Pedakis and Calfas, the co-executors of decedent's estate, to recognize him as the heir at law of the deceased and to distribute to him the net estate, basing the demand on the contention that he is the pretermitted heir of the deceased. Thereupon the executors, joined by a beneficiary under the will, brought this suit in chancery for a declaratory decree determining the rights of the appellant and other interested parties in the premises. The chancellor entered a decree the effect of which is to hold invalid appellant's claim to an interest in the estate and appellant seeks reversal thereof.

While there are several facets of the problem, the ultimate question for determination is whether the appellant, who was an adult when adopted by the decedent who was never a married person, falls within the purview of the Pretermitted Heir Statute. We find no Florida precedent construing the laws governing the adoption of adults in their relation to the Pretermitted Heir Statute under circumstances similar to the case on review. Appellant contends that the applicable statutes operate to constitute him the pretermitted heir at law of the deceased. These statutes are:

F.S. § 72.34, F.S.A., governing the right to adopt an adult:

'Any adult married couple, or the survivor thereof, residing in the state and wishing to adopt another adult, may apply by petition in chancery to the judge of the circuit court for the circuit in which such adopter may reside, for permission to adopt another adult, whether married or single, provided, however that said adopters are more than ten years older than the adoptee.' (Derived from Laws 1947, c. 23891, § 3)

As originally enacted, the right of an adult to adopt an adult was not available unless, inter alia, the adopters establish that they had custody of the adoptee for at least five years during the infancy of the latter. This limitation was removed by c. 29704, Laws 1955.

F.S. § 72.38, F.S.A., dealing with the effect of adoption:

'By a decree of adoption, the adoptee shall be the child and legal heir of the adopters, entitled to all rights and privileges and subject to all obligations of a child born to such adopters in lawful wedlock. * * *' (Derived from Laws 1947, c. 23891, § 7.)

F.S. § 731.11, F.S.A., relating to children born after execution of a will, commonly known as the Pretermitted Heir Statute:

'When a testator omits to provide in his will for any of his children born after the making of the will and such child has not had bestowed upon him by way of advancement a portion of the testator's property equivalent to a child's part, unless it appears from the will that such omission was intentional, such child shall receive a share in the estate of the testator equal in value to that which he would have received if the testator had died intestate. The share of the estate which is assigned to such pretermitted child shall be raised in accordance with the order of appropriation of assets set forth in this law.' (Derived from Laws 1933, c 16103, § 12, as amended by Laws 1945, c. 22783, § 1.)

F.S. § 731.30, F.S.A., dealing specifically with the effect of adoption upon the right of inheritance:

'An adopted child, whether adopted under the laws of Florida or of any other state or country, shall be an heir at law, and for the purpose of inheritance, shall be regarded as a lineal descendant of his adopting parents * * *.' (Derived from Laws 1933, c. 16103, § 31.)

At first blush it would appear that F.S. § 731.30, F.S.A. brings appellant within the purview of F.S. § 731.11, F.S.A., but careful analysis discloses that this is not so.

The right of adoption existed under the laws of ancient Greece and Rome and has been practiced among many of the continental nations under the civil law from earliest times. It was, however, unknown to the common law of England and exists in Florida, having the English common law as the basis for its jurisprudence, only by virtue of statute. Re Stonehouse's Adoption, 1944, 155 Fla. 223, 19 So.2d 788; Sheffield v. Barry, 1943, 153 Fla. 144, 14 So.2d 417; Re Whetstone, 1939, 137 Fla. 712, 188 So. 576; In re Palmer's Adoption, 1937, 129 Fla. 630, 176 So. 537; 1 Am.Jur., Adoption of Children, § 3.

Prior to enactment of c. 23891, Laws 1947, now embraced in the Florida Statutes as Section 72.34, F.S.A., supra, it was not possible in this state to adopt an adult so as to constitute the adoptee the heir of the adopter and entitled to inherit under the laws of this state. The related cases of Mott v. First National Bank of St. Petersburg, 1929, 98 Fla. 444, 124 So. 36, and First National Bank of St. Petersburg v. Mott, 1931, 101 Fla. 1224, 133 So. 78, not only support that state of the law but aptly point the way to the rule that we adhere to on this appeal.

In the 1929 case Mrs. Mott by a petition before the County Judge's Court of Pinellas County, claimed the right to inherit as a child and heir at law of one Samuel E. Doane, deceased, who died intestate leaving real and personal property in this state. Her claim was based on a decree of the Connecticut court declaring her to be the adopted child of the deceased, which decree was entered when she was thirty-three years of age. The statutes of Connecticut expressly permitted the adoption of adults. A demurrer and motion to strike the petition were interposed by the administrator of Doane's estate and the County Judge's court sustained the demurrer and struck the petition. On appeal to the circuit court, which then had appellate jurisdiction over such orders, the order of the County Judge's court was affirmed and thereupon Mrs. Mott appealed to the Florida Supreme Court which affirmed the circuit court. While the affirmance by the Supreme Court turned on the premise that the proceeding before the County Judge's court resolved itself 'into an attempt to try title to real property before the county judge sitting as a court of probate,' contrary to the provisions of Article V, Section 11, of the Florida, Constitution, F.S.A. as it existed in 1929, Mr. Justice Strum, speaking for the court, made the following observations which are highly pertinent to the problem before this court on this appeal:

'Within itself, the decree of adoption in Connecticut has no extraterritorial effect in respect to the inheritance of real estate in other states. Brown v. Finley, 157 Ala. 424, 47 So. 577, 21 L.R.A. (N.S.) 679, 131 Am.St.Rep. 68, 16 Ann.Cas. 778; 1 C.J. 1402. The relation of parent and child having been competently established by adoption in Connecticut, however, that status will be recognized in Florida under the rules of comity or under the full faith and credit clause of the Federal Constitution, unless such status or the rights flowing therefrom are not contemplated by or are repugnant to the laws or policy of the state of Florida upon the subject. Van Matre v. Sankey, 148 Ill. 536, 36 N.E. 628, 23 L.R.A. 665, 39 Am.St.Rep. 196; 1 R.C.L. 615.

'Each state possesses the sovereign power to prescribe its own laws as to adoptions, as well as its own laws of descent and distribution with reference to property within its limits, in the exercise of which...