Wilson v. Anderson

• Citation: 232 N.C. 212,59 S.E.2d 836,18 A.L.R.2d 951
• Decision Date: 09 June 1950
• Docket Number: No. 528,528
• Parties: , 18 A.L.R.2d 951 WILSON, v. ANDERSON et al.
• Court: United States State Supreme Court of North Carolina

Page 836

59 S.E.2d 836

232 N.C. 212, 18 A.L.R.2d 951

WILSON, v. ANDERSON et al.

No. 528

Supreme Court of North Carolina.

June 9, 1950

John H. Small, Charlotte, for plaintiff.

Francis H. Fairley, Charlotte, for defendants.

WINBORNE, Justice.

Decision on the appeals of plaintiff and of defendant turns upon the answer to this question: Do the statutes of descent and distribution, as amended by 1947 Session Laws, Chapter 832, G.S. § 29-1(14) and Chapter 879, G.S. § 28-149(10), apply to an adoption made in the year 1919 under the statute pertaining to adoptions, Chapter 2 of Revisal of 1905, as it then existed? In the light of pertinent statutes, and of decisions of this Court, and of rules for interpreting legislative acts, we are of opinion and hold that this question merits a negative answer.

In this connection, it is appropriate to make these general observations as to the law relating to adoptions. The purpose of an adoption is to change the status of a child in relation to its adoptive parent. The State alone can determine when the relation of parent and child ceases, and in what respects it shall do so. Adoption is a status unknown to common law, and can be accomplished only in accordance with provisions of statutes enacted by the legislative branch of the State government. Under statutes providing for adoption through judicial proceedings instituted by filing a petition to a court of competent jurisdiction alleging certain requisite facts from which the court decrees the status and the right of the child, the court is said to act judicially in rendering the judgment. And the decree of adoption obtained by judicial proceedings is regarded as a judgment of the court, and is given the force and effect of any other judgment. 2 C.J.S., p. 367 et seq., Adoption of Children, §§ 1, 6, 40. See also Truelove v. Parker, 191 N.C. 430, 132 S.E. 295.

Moreover, in reference to other laws, it is said that 'All adoption laws and statutes in pari materia therewith in force in a state should be read together * * * as constituting one law.' 2 C.J.S., p. 377, Adoption of Children, § 6(b). And here it is appropriate to note that in the year 1919, at the time plaintiff was adopted, the statutes of descent and distribution in this State contained no rules regarding the rights of adopted children in those respects. In this connection, an adopted child cannot usually inherit from relatives of the adoptive parent unless there is an express statute to that effect. 2 C.J.S. p. 453, Adoption of Children, § 63(b). And the decisions of this Court are to the effect that the law in force at the time of the adoption governs the right of the child to inherit; so that under the law as it existed in 1919 a child adopted for the life of the child, acquired by adoption the right to inherit the real estate of the adoptive parent, and to take his personal property, in the event he die intestate, but acquired no right to inherit or to take through him such property of his collateral relative who might die intestate. Grimes v. Grimes, 207 N.C. 778, 178 S.E. 573; Phillips v. Phillips, 227 N.C. 438, 42 S.E.2d 604.

But the General Assembly of 1947 inserted in the statutes of descent and distribution rules in that respect relating to adopted children, as follows:

Chapter 832 of 1947 Session Laws of North Carolina, amending the General Statutes relating to descents, as it pertains to adopted children, provides in Section 1 that Section 29-1 of the General Statutes be amended by adding a new rule to read as follows: 'Rule 14. An adopted child shall be entitled by succession or inheritance to any real property by, through, and from its adoptive parents the same as if it were the natural, legitimate child of the adoptive parents.'

The act provided that 'All laws and clauses of laws in conflict herewith are hereby repealed' and that this 'Act shall become effective July 1st, 1947.' Sections 2, 3.

And Chapter 879 of 1947 Session Laws of North Carolina amending the General Statutes relating to distribution as it pertains to adopted children, provides in Section 1 that General Statutes be amended by adding to G.S. § 28-149 a new section to read as follows: '10. An adopted child shall be entitled by succession, inheritance, or distribution of personal property, including, without limiting the generality of the foregoing, and recovery of damages for the wrongful death of such adoptive parent by, through, and from its adoptive parents the same as if it were the natural, legitimate child of the adoptive parents.' And the act provides that 'All laws and clauses of laws in conflict herewith are hereby repealed', and that 'This Act shall become effective July 1st, 1947.' Sections 2, 3.

Hence, the question arises as to the effect, if any, of these amendments to the statutes of descent and distribution upon the rights of a child adopted under the adoption law as it existed in the year 1919 at the time plaintiff was adopted.

It is appropriate, therefore, to review the statutes of this State, enacted from time to time, providing for the adoption of minor children by judicial proceeding, and declaring the effect of orders of adoption entered in such proceedings.

The statute, Chapter 2 of the Revisal of 1905, pertaining to 'Adoption of minor children', in effect on 25 April, 1919, the date on which plaintiff was adopted by Malcolm B. Hunter, gave to the jurisdictional court power to sanction and allow an adoption by an order granting letters of adoption. Rev. § 176. And in Section 177 the statute declared that 'Such order, when made, shall have the effect forthwith to establish the relation of parent and child between the petitioner and the child during the minority or for the life of such child, according to the prayer of the petition, with all the duties, powers and rights belonging to the relationship of parent and child, and in case the adoption be for life of the child, and the petitioner die intestate, such order shall have the further effect to enable such child to inherit the real estate and entitle it to the personal estate of the petitioner in the same manner and to the same extent such child would have been entitled to if such child had been the actual child of the person adopting it: Provided, such child shall not so inherit and be so entitled to the personal estate, if the petitioner specially set forth in his petition such to be his desire and intention.'

This declaration is in practically the same language used by the General Assembly in the original act providing for adoption of minor children, Laws 1872-3, Chapter 155, Section 3, and as brought forward in the Code of 1883, Section 3.

Thus it appears that the General Assembly declared there that the order of adoption provided for as above stated, shall have two effects: (1) The establishment of the parent and child relationship between the petitioner and the adopted child, with all the duties, powers and rights belonging to such relationship. (2) The grant to the child a limited right of inheritance, that is, the right to inherit the real estate, and to take or share the personal property of the petitioner only.

It is also noted that the provisions of Rev. § 177 were brought forward in almost identical language and incorporated in the Consolidated Statutes of 1919 as Section 185, a part of Chapter 2 relative to proceedings for adoption of minors. C.S. § 185. The Consolidated Statutes of 1919 became effective August 1, 1919. See C.S. § 8107.

Moreover, in 1933 the entire statute, as it appeared in the Consolidated Statutes of 1919, Sections 182 to 191, both inclusive, was repealed and rewritten by the General Assembly. See Chapter 207, P.L.1933. As so rewritten subsection 5 of Section 1 deals with the effect of the order of adoption, and it is in almost the same wording as C.S. § 185. And in subsection 10 of the act it is provided that 'All proceedings for the adoption of minors in Courts of this State are hereby validated and confirmed, and the orders and judgments therein are declared to be binding upon all parties to said proceedings and their privies and all other persons, until the orders or judgments shall be vacated as provided by law.'

And in 1935 the entire statute, as so rewritten in the 1933 Act, P.L.1933, Chapter 207, was repealed and rewritten by the General Assembly. See Chapter 243, P.L.1935. And as so rewritten the provisions of the 1933 Act, P.L.1933, Chapter 207, in material aspect, particularly subsection 5 of Section 1 and subsection 10 as above set forth, were re-incorporated in almost identical language.

And it is noted that the adoption statute, as rewritten in 1935, Chapter 243, of P.L.1935, was amended by the General Assembly of 1941. See Chapter 281, P.L.1941. As so amended, in Section 4 of the amended act, subsection 5 of Section 1 of the 1935 Act was rewritten in substantially the same language, except as to the effect of the order of adoption in respect to inheritance, etc. But in Section 8 of this 1941 Act, it is provided that the provisions of Section 4 of the Act shall apply only to adoptions hereafter made. See Phillips v. Phillips, supra.

And, in passing, it may be noted that the statute on adoption of minors became a part of General Statutes on its effective date, December 31, 1943. And it may also be noted that Chapter 885 of the 1947 Session Laws of North Carolina, purporting to rewrite Chapter 48 of the General Statutes relating to 'Adoption of Minors' was declared inoperative and void. See In re advisory Opinion House Bill No. 65, 227 N.C. 708, 43 S.E.2d 73.

But the General Assembly of 1949 did rewrite said Chapter 48 of the General Statutes, expressly to incorporate the provisions of said Chapter 885 of 1947 Session Laws, to read as sections of the General Statutes. See Chapter 300 of 1949 Session Laws of North Carolina.

As so rewritten the Act provides in pertinent part: G.S. § 48-3, who may be adopted; G.S. § 48-4, who may adopt...