Young v. Bridges

• Decision Date: 07 February 1933
• Parties: YOUNG v. BRIDGES.
• Court: New Hampshire Supreme Court

165 A. 272

YOUNG

v. BRIDGES.

Supreme Court of New Hampshire. Strafford.

Feb. 7, 1933.

On Rehearing March 7, 1933.

Pub. Laws 1926, c. 307, § 2, designed to prevent the surviving parent from receiving any of the deceased parent's estate indirectly through the later death of a minor child leaving brothers or sisters or their issue, was originally enacted before the enactment of section 5, making illegitimates heirs of their mother; hence the latter modifies, but is not modified by, the former.

On Rehearing.

Adoption of such child under Pub. Laws 1926, c. 292, § 5, providing in part that adopted child shall bear same relation to adopting parents and their kindred in respect to inheritance of property and all other incidents pertaining to relation of parent and child as he would have as if he were natural child of such parents, prevented such child's inheriting from maternal grandfather under chapter 307, § 4, making illegitimates heirs of their mother and her kindred, the purpose of the adoption statute being to free the child from his status arising from relationship by blood and give new status as between child and foster parents and their kindred.

Transferred from Superior Court, Strafford County; Young, Judge.

Petition by Norman F. Young, as administrator and individually, for a declaratory judgment against Ruth E. Bridges. Case transferred without ruling.

Case discharged.

Petition for declaratory judgment. The defendant's maternal grandparents, Fred and Addie, owned real estate in common. Addie died intestate and survived by her husband, a son, and a daughter, the defendant's mother. Afterwards the daughter died, under age and leaving as her only issue the defendant, an illegitimate child. Later Fred died intestate and survived by his second wife, now deceased, his son, and his grandchild, the defendant. After her mother's death the defendant was adopted under P. L. c. 292. The issue of the defendant's rights in the real estate and in Fred's personal estate was transferred without ruling by Young, J.

Cooper & Hall, of Rochester (G. S. Hall, of Rochester, orally), for plaintiff.

George & Gregoire, of Dover (F. E. George, of Dover, orally), for defendant.

ALLEN, J.

The probate court has jurisdiction to decree the distribution of Fred's personal estate, and no reasons are shown for the exercise of authority to declare its inheritance in this proceeding. Lisbon Village District v. Town of Lisbon, 85 N. H. 173, 155 A. 252. The petition in respect thereto is accordingly dismissed.

The life estates of Fred as Addie's widower, and of Fred's second wife as his widow in the real estate, were not waived for interests in fee. As they have now terminated, they are to be disregarded. Also, Fred's claim against Addie's estate, with no effort for about thirty years to enforce it and with no reasonable explanation for the delay, is barred by laches as a matter of law. Knight v. Boilings, 73 N. H. 495, 503, 63 A. 38; Barrett v. Cady, 78 N. H. 60, 65, 66, 96 A. 325.

Addie's daughter inherited one-half of her real estate. On the daughter's death this interest descended to her heirs. By Public Laws, c. 307, § 5, illegitimates are made heirs of their mother, and hence the defendant as her mother's only issue inherited the interest.

This result cannot be affected by the adoption statute, since the daughter's death upon which her inheritance passed preceded the defendant's adoption. The case is not of an own parent's death after adoption, and no opinion of the adopted child's inheritance from the parent in that situation is expressed.

Nor is the result affected by Public Laws, c. 307, § 2, providing that an unmarried minor's estate derived by descent from a parent shall go to his brothers and sisters or their legal representatives, to the exclusion of the other parent. This statute, designed to prevent the surviving parent from receiving any of the deceased parent's estate indirectly through the later death of a minor child leaving brothers or sisters or their issue, was originally enacted before that of the statute making illegitimates heirs of their mother, and the latter statute is comprehensive to include mothers dying under as well as over age. It makes no distinction between them and no statutory policy to do so is found. It modifies, but is not modified by, the statute limiting a parent's inheritance in a minor child's estate.

As to Fred's real estate, the defendant has no interest in it. Her mother was not one of his heirs, since he survived her. And the defendant's illegitimacy prevents her from inheriting directly from him. Reynolds v. Hitchcock, 72 N. H. 340, 56 A. 745.

Case discharged.

On Rehearing.

The motion points out that the opinion overlooks a statutory amendment enacted subsequent to the decision in Reynolds v. Hitchcock, 72 N. H. 340, 56 A. 745. The statute this case construed made illegitimates and their issue "heirs of the mother" (P. S. c. 190, § 4), and the case held that they were not thereby heirs of their next of kin through her. After the decision the statute was amended to make them "heirs of the mother and her kindred," by Laws 1905, c. 4. The amendment has since remained in force and its re-enactment is found in P. L. c. 307, § 4.

It is clear that the amendment was passed to enlarge the inheritance. The Reyn olds Case was decided late in 1903 and the statute was amended at the next ensuing legislative session. The decision was presumably in mind and prompted the amendment. State v. Ryan, 70 N. H. 196, 197, 46 A. 49, 85 Am. St. Rep. 629; New Hampshire, etc., Corp. v. LaMarche, 85 N. H. 205, 155 A. 697. The defendant thus becomes an heir of her maternal grandfather, he being one of her mother's "kindred," unless the adoption statute takes away an adopted child's inheritance from his own relatives.

By this statute (P. L. c. 292, $ 5) inheritance is specifically regulated as follows: "The child so adopted shall bear the same relation to his adopting parents and their kindred in respect to the inheritance of property and all other incidents pertaining to the relation of parent and child as he would if he were the natural child of such parents, except that he shall not take property expressly limited to the heirs of the body or bodies of the adopting parents, and if he dies under age or intestate, leaving property received by gift or inheritance from his natural kindred, such property shall be distributed as if there had been no decree of adoption."

It is said in Clark v. Clark, 76 N. H. 551, 552, 85 A. 758, 759: "While it was not the purpose to make adoption in all respects equivalent to the birth of a natural child, it was to have that effect in regard to certain rights and duties." In the ascertainment of these rights and duties the whole matter is one of statutory construction. Since adoption is wholly statutory, all its incidents must be. As it is unknown to the common law, there is no common-law policy for regulation of the status. Any differences between the rights and duties of an adopted child and those of one not adopted are to be marked out only by legislation. What the Legislature has done, is the inquiry. Limitations upon the status may arise because of other legislation regarded as unaffected by the adoption statute, as in Morse v. Osborne, 75 N. H. 487, 77 A. 403, 30 L. R. A. (N. S.) 914, Ann. Cas. 1912A, 324; other legislation may retain incidents of the natural parentage, as, for example, P. L. e. 286, § 1, forbidding marriages between certain relatives; and the adoption statute itself may lessen or enlarge the incidents in their definement.

If the civil-law system of adoption may be of aid in determining the incidents of a statutory adoption, it can be so only on the theory that the statute was enacted with the design of incorporating in some measure the system. Adoption statutes do not displace the local laws of parental and family status and of inheritance. The policy and principles of the civil law upon these matters are not incorporated by the spirit of the statutes under any theory of its effect. The civil law at best may only be consulted upon the inquiry how far an adoption accomplishes a full transfer of relations from one's family by blood to that by adoption. And in this limited aspect any reservations of transfer must be largely dependent upon the features of the matter to which they relate. Civillaw inheritance not being the same as common-law or statutory inheritance, the civil law's reservation of inheritance from the adopted child's natural relatives does not shed much light to show the reservation in a statutory adoption. The inquiry here relates to the general inheritance statute equally with the adoption statute, which either did or did not amend it. From the standpoint of the inheritance statute, the civil law is of no service in showing if its amendment was intended.

Any purpose of reservation in the adoption statute is negatived by a predominant policy of the inheritance statute against dual heirship. "These two statutes, relating to same subject, are in pari materia, and should be construed together as if they are one law." Batchelder v. Walworth, 85 Vt. 322, 82 A. 7, 12, 37 L. R. A. (N. S.) 849, Ann. Cas. 1914C, 1223.

The mere fact that a statute and the civil law both relate to the same subject signifies no uniformity of treatment. The civil law not prevailing here, it is more probable than not that the Legislature passed the adoption statute without reference to it. The statute did not borrow that law, but was enacted as a measure of expediency in the broad view of the wisdom of adoption as a social status based on the experience of countries and states where it was already established. Accordance of our law and the civil law in respect to social and economic policy in all unspecified respects, and with no reference to its bearing on our local policy in other relations, is not to be declared to be shown. Account is to be taken of...