Baird v. Yates

108 Kan. 721 | Kan. | 1921

The opinion of the court was delivered by

Burch, J.:

The controversy in this case relates to inheritance of a sum of money claimed by the mother, and by the parents by adoption, of George Victor Yates, deceased.

The pertinent statutes are printed in the opinion in the case of Dreyer v. Schrick, 105 Kan. 495, 496, 185 Pac. 30, except two sections of the statute of descents and distributions following the one there quoted, which read:

“If the intestate leave no issue, the whole of his estate shall go to his wife; and if he leave no wife nor issue, the whole of his estate shall go to his parents.

“If one of his parents be dead, the whole of the estate shall go to the surviving parent; . . .” (Gen. Stat. 1915, §§ 3842, 3843.)

In the case referred to it was said that the domestic relation of parent and child created by adoption is the full legal equivalent of the natural relation, and that statutes referring to the relation of parent and child which do not clearly exclude adopted children must be interpreted as including them on equal footing with natural children. It was held, accordingly, that adoption of a child revokes a testator’s previously executed will, the same as birth of a child to him. In the case of Riley v. Day, 88 Kan. 503, 129 Pac. 524, it was held that the expression “living issue,” used in the statute of descents and distributions (Gen. Stat. 1915, §3841); included an adopted child. Many times in other cases this court has done its best to destroy the persistent notion that there is something different, before the law, between the relation of a child to its natural parent and the relation of a child to its parent by adoption. In each instance the child’s interests were concerned. All that has been said on the subject would be confuted if the adopted child were child but the parent by adoption were not parent. Therefore, the word “parents,” in the sections of the statute of descents and distributions quoted above, includes parents by adoption.

In the case of Dreyer v. Schrick, supra, the rule was recognized that unless some statute destroy the capacity, an adopted child will inherit from both its natural and its adopted parents. Applying the same principle, unless some statute destroy the capacity, a natural parent will inherit from his child adopted by another. There is no such statute, and the fund in controversy goes to those persons who answer the description of surviving parent of the deceased, whether by nature or by adoption.

There are many decisions to the effect that an adopting parent does not inherit from the adopted child. Some of them turn on phraseology of the statutes involved. Others result from application of the rule that, since adoption statutes are in derogation of the common law, they must be strictly construed. The rule is backed by the aristocratic sentiment that an adopted child, being a stranger to the blood of the family, may be recognized so far and no farther. The legislature of this state has taken care of that matter as follows:

“The rule of the common law, that statutes in derogation thereof shall be strictly construed, shall not be applicable to any general statute of this state, but all such statutes shall be liberally construed to promote their' object.” (Gen. Stat. 1915, § 11829.)

The judgment of the district court is reversed, and the cause is remanded with direction to proceed in accordance with this opinion.