61 N.E.2d 24 | Ill. | 1945
Sarah A. Martin, appellee, is the daughter of Mary E. Tilliski. In the year 1900 Sarah was legally adopted by T.J. and Sarah Armstrong by decree duly entered in the county court of Williamson county. Mary E. Tilliski died October 9, 1940, leaving her surviving her husband, August Tilliski, Sarah A. Martin, the daughter, Daisy Walton, a sister, and Sarah Kaesberg, a niece. The adoptive parents of Sarah A. Martin died previous to the death of her natural mother, and from them she inherited property.
The sole issue for determination is whether appellee, being an adopted child, can inherit a child's share from the estate of her mother. The pleadings and facts out of which this question arises are adequately set out in the opinion of the Appellate Court in
The case involves the construction of the provisions of the Probate Act in reference to devolution of property upon death intestate, (Ill. Rev. Stat. 1943, chap. 3, pars. 162-165,) and also parts of the Adoption Act. (Ill. Rev. Stat. 1943, chap. 4.) The Probate Act became effective January 1, 1940, and includes the former statute of 1872 on descent, (Ill. Rev. Stat. 1937, chap. 39,) and sections 5, 6 and 7 of the former Adoption Act, (Ill. Rev. Stat. 1937, chap. 4,) all being incorporated in the Probate Act as part of article II, entitled "Descent, Distribution and Dower."
It is the contention of appellant that certain changes were made in the former adoption and descent statutes, which evidence an intention upon the part of the legislature to preclude an adopted child from inheriting from his or her natural parents. To analyze this contention it is perhaps well to ascertain what, if any, substantial change is brought about by incorporating what was formerly designated the descent statute and parts of the adoption statute into the Probate Act. And first, with reference to the language used for the descent of property in case of intestacy, section 11 (par. 162) provides for the descent of property in such case: "when there is a surviving spouse and also a descendant of the decedent: (a) to the surviving spouse one-third of the personal estate and one-third of each parcel of real estate of which the decedent died seized * * * and (b) to the decedent's descendants per stirpes two-thirds of the personal estate, * * *."
It will be noted that in the Probate Act the word "descendants" takes the place of "child" and "the descendants of a child or children," used in the former statute of descent, and in like manner the word "descendants" is *276
used to cover the various contingencies under which property passes by intestacy. The word "descendant" means one who is descended lineally from another to the remotest degree. (Wyeth v.Crane,
The contention is made by appellant that since an adopted child in case of the death of the adopting parent is deemed a descendant, therefore the term is exclusive of whom it may be a descendant, and therefore the child may no longer be regarded as a descendant of a natural parent. There seems to be no decision in Illinois passing squarely upon the right of an adopted child to inherit from its natural parents. The right of the adopted child to take from its natural parents is inferentially recognized in the last clause of section 6 of the prior Adoption Act *277 by the use of these words: "but the parents by adoption and their heirs shall not inherit any property which such child may take or have taken, by gift, bequest, devise or descent from his kindred by blood." This language was used to clarify a preceding sentence in the same section, which provides: "The parents by adoption and their heirs shall take by descent, from any child adopted * * * only such property as he has taken or may hereafter take from or through the adopting parents." The purport of section 6 of the old act and section 14 of the Probate Act is the same, because both in the old law and the new, the parents by adoption and their kindred are eligible to inherit, from the adopted child, only property received by such child through either or both of the adopting parents.
The contention that the use of the word "descendants" in reference to heirship, both of natural and adopted children, has the effect of excluding a natural child from inheriting from its parent is without force. The only effect of the use of the word "descendant" in both sections 11 and 14 is to synchronize their meaning as to the inheriting by the child from the parent described in the respective sections. In section 11 it is the descendant of a natural parent to which reference is made; in section 14 it is the adopted child, as a descendant of the adopting parent, to which reference is made. In other words, the adopted child under section 14 is given the legal standing of a descendant (with certain exceptions) as to adopting parents, similar to that given, by the use of the same term, in section 11, where adoption is not involved. There is nothing in the Probate Act, nor is there anything in the superseded statutes of descent and adoption to indicate that the natural child and the natural parents no longer have such status by reason of adoption of the child. The restrictions in the prior adoption statute and in section 14 of the Probate Act, as to the rights of the adopted child, *278 are strictly limited to inheritance from the adopting parent, with no reference whatsoever to the natural parent, with certain exceptions to which we now refer.
There is no limitation upon the right of a descendant to inherit from natural parents under section 11. There are, however, in section 14, limitations upon the right of the adopted child to inherit from the adopting parent, which are as follows: (1) "the adopted child shall not take property from the lineal or collateral kindred of the adopting parent per stirpes or property expressly limited to the body of the adopting parent." The same provision, in slightly different language, is to be found in section 5 of the prior Adoption Act, viz., "except that he [the adopted child] shall not be capable of taking property expressly limited to the body or bodies of the parents by adoption, nor property from the lineal or collateral kindred of such parents by right of representation." "Per stirpes" and "representation" as used above are synonymous terms. (Bouvier's Dict.) (2) "When an adopted child is related by blood to the adopting parent, the adopted child and his descendants shall take property from the estate of the adopting parent only as an adopted child, or descendants of an adopted child, and not as relatives by blood." (Probate Act, sec. 14.) This exception was not in the former adoption statute. (3) An adopted child cannot inherit as heir property limited to the issue of the body of the adopting parent. Adoption Act, sec. 5; Probate Act, sec. 14.
We have just noted the provisions of the Adoption Act which have been superseded by, and included within, the Probate Act. There are other sections, however, of the Adoption Act which require consideration. Section 3 is still in force, not being affected by the Probate Act, and, among other things, provides that upon the filing of a petition, and a hearing thereon, a decree may be made "setting forth the facts and ordering that from the date of the *279 decree the child shall, to all legal intents and purposes, be the child of the petitioner * * *." Section 8 of the Adoption Act defines the effect of adoption as follows: "The natural parents of a child so adopted shall be deprived, by the decree, of all legal rights, as respects the child, and the child shall be freed from all obligations of maintenance and obedience as respects such parents." It is noticeable that neither the prior statute on adoption nor the Probate Act makes any provision that a child shall be incapable of inheriting from its natural parent. Neither does it say, either by express reference, or by implication, that a natural child is no longer a descendant of a natural parent. The entire statute must be construed together, not merely one section as it is enacted at one time, and the presumption is that the legislature intended that it be construed as a whole.
Section 11 of the Probate Act provides that a descendant may inherit from its parent. The appellee in this case was a descendant, within the meaning of that section, of Mary E. Tilliski. Section 14 provides that an adopted child may be deemed a descendant of the adopting parent. Under such provision, as to the rights of inheritance, she had the same rights as a natural child as respects T.J. Armstrong and wife. The exceptions to inheritability set forth in section 14 of the Probate Act do not include the waiver of any rights between natural parents and natural child. We regard it very significant that there are a number of exceptions to the rights of an adopted child and of the adopting parent to inherit, specified in section 14, none of which preclude the right which a natural child has to inherit from its natural parent. This is recognized in Dwyer v. Dwyer,
Another thing to be noted in this connection is that the law does not require that a child under fourteen years of age be notified or represented in an adoption proceeding; (McConnell v.McConnell,
While, as above observed, there is no decision of this court, of which we are aware, that has passed upon this question, it has been decided in other jurisdictions having the same or similar statutes that an adopted child may inherit from its natural parents. (In re Wilson's Estate,
In Sledge v. Floyd,
In the Minnesota case (Roberts v. Roberts,
And in the Michigan case (In re Klapp,
Appropriate language to the same effect is used in other cases, cited above, supporting the view that a child does not lose its right of inheritance from its natural parent by becoming the adopted child of another, unless such right is expressly taken away by statute. The reasoning of these cases appeals to us as reasonable and just. In a matter of such general importance the legislature would have made express provision if it had intended a child should lose its birthright upon becoming adopted by another. It has not done so, but, on the contrary, it has made certain exceptions, only. The appellee does not come within any of these exceptions. It is a fundamental principle of statutory construction that the enumeration of certain things in a statute implies the exclusion of all other things. (People ex rel. Hansen
v. Collins,
It is claimed, however, by appellant that a contrary rule has been announced in prior decisions of this court. No single case cited by appellant involves the question of a natural child inheriting from its natural parent after it had been adopted by another. In Keegan v. Geraghty,
In Wallace v. Noland,
It is not contended by appellant that these cases decide specifically the question involved, but it is contended that language is used indicating that such are the views of this court. We do not consider that any of the language used in any of the cases has decided the question here involved. It is true that occasionally words are used referring to the rights of the adopted child as to parents, but in each case the question involved was between an adoptive parent, or *285 the relatives of such parent, and the adopted child, and not between the natural parent and such child. This can be readily determined from an examination of each of the cases.
We have frequently held that a judicial opinion, like a judgment, must be read as applicable only to the facts involved, and is authority only for what is actually decided. (People exrel. Schuler v. Chapman,
The statute authorizing adoption of children is remedial. It was unknown to the common law. Primarily, it is beneficial to the adopted child. It gives to it rights it did not have before. It does not purport to lessen any of its natural rights, but gives additional rights. The same right of heirship from blood parents enjoyed by a natural child should not be taken from an adopted child unless clearly required by statute. We are of the opinion that under the statute in force at the time of the death of Mary E. Tilliski, intestate, her natural child, Sarah A. Martin, was entitled to a child's share, and that the fact that she had been previously adopted did not deprive her of it.
The judgment of the Appellate Court for the Fourth District is, accordingly, affirmed.
Judgment affirmed. *286