85 A. 758 | N.H. | 1913
The legatee, Charles C. Clark, died during the lifetime of the testator, leaving a natural daughter and an adopted one. The guardian of the two daughters seeks advice as to the rights of her wards in respect to the legacy.
The statute of adoption was enacted in 1862 (Laws 1862, c. 2603) and contained, in substance, the provision here relied upon: "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 of the relation of parent and child as he would if he were the natural child of such parents, except he shall not take property expressly limited to the heirs of the body or bodies of the adopting parents." P. S., c. 181, s. 5.
At the time this statute was enacted, the statute of wills contained its present provision touching lapsed legacies: "The heirs in the descending line of a legatee or devisee, deceased before the testator, shall take the estate bequeathed or devised, in the same manner the legatee or devisee would have taken it if he had survived." P. S., c. 186, s. 12. The question is whether the adopted daughter is an heir in the descending line, within the meaning of this act.
While it is true that in the present instance the claimed right *552
of the adopted child is not an inheritance, but rather a statutory extension of the law as to who are beneficiaries under a will, enacted for the better carrying out of the testator's intention (Campbell v. Clark,
The statute giving the right here claimed being in force when that governing adoption of children was enacted, the question is whether the legislature used language broad enough to manifest an intent that adopted children should become heirs in the descending line, within the meaning of the earlier statute. This precise question has been considered in another jurisdiction, and the conclusion was in favor of the adopted child. "He takes as a lineal descendant of the legatee by force of the statute. . . . Not as a lineal descendant by birth, but as a statutory lineal descendant, and as lawfully in the line of descent as if he were placed there by birth." Warren v. Prescott,
Whatever view is taken of the collateral effect of an adoption, it is evident that, so far as the capacity of the child to take as heir or statutory successor in right of the parent is concerned, there is no difference between the natural and the adopted child, save only in the specifically excepted case of an estate tail.
The common law did not recognize adoption as creating any legal rights, while the civil law did. It therefore seems reasonable *553
to look to the civil law for light upon the subject. Under that system, the adopted child had all the rights of a natural one; and such has been the holding under the various American statutes, excepting only such rights as the statute in question by its terms excludes. Power v. Harley,
The provision as to "property expressly limited to the heirs of the body or bodies of the adopting parents" has no application. There was no limitation upon the bequest here involved; and if Charles C. Clark had outlived the testator, the adopted daughter would have inherited equally with her foster sister.
The guardian is advised that her wards share equally in the property bequeathed to Charles C. Clark.
Case discharged.
All concurred.