197 Mich. 615 | Mich. | 1917
Lead Opinion
When Harlan Austin, of Van Burén county, was 3 years of age, both of his parents died and soon thereafter, in September, 1899, he was adopted by Cyrus J. Klapp and his wife, Esther; the child’s grandparents consenting thereto. When he was 7 years of age his adoptive mother, Mrs. Klapp, died, and he was then adopted by Albert E. and Eva E. Pulsipher; Cyrus J. Klapp consenting. Thereafter Harlan left the Klapp family and lived and was cared for in the home of Pulsipher. In 1908 Cyrus Klapp married the defendant Lottie, and in February, 1915, he died, leaving him surviving Lottie, his widow, his father, one brother, and four sisters. The estate of Cyrus J. Klapp was probated. The final order of distribution assigned to Lottie the widow, one-third of the real estate, and to the adopted boy, Harlan, two-thirds of it, whereupon an appeal was taken by the widow and father of the deceased to the circuit court, where the probate order was confirmed. They have again appealed, and we are asked to determine whether an adopted child loses his right to inherit from the parent who first adopted him, if he is thereafter adopted by another.
The rule appears to be pretty well settled by the adjudicated cases that an adopted child may inherit from both his natural and adoptive parents. 1 C. J. p. 1400, and cases cited. This rule, which appears to be conceded by both counsel, is the foundation for the
“Whereupon such child shall, in case of a change of name, thereafter be known and called by said new name, and the person or persons so adopting such child shall thereupon stand in the place of a parent or parents to such child in law, and be liable to all the duties and entitled to all the rights of parents thereto, and such child shall thereupon become and be an heir at law of such person or persons, the same as if he or she were in fact the child of such person or persons.” 3 Comp. Laws, § 8780 (3 Comp. Laws 1915, § 14142).
No question is raised as to the validity of either adoption proceedings. In fact, it is stated in the briefs that both proceedings are valid. Assuming that the second proceeding is valid, I am of the opinion that, when it was signed and assented to by the parties and approved by the probate court, it ipso facto had the effect of revoking or superseding the order made in the first proceeding. When the original order was revoked, it carried with it all the reciprocal rights and duties which sprang into existence when the order was made. Thereafter the first adoptive father was no longer entitled to the custody of the child; neither was he entitled to his services. He was no longer obligated to care for, educate, and support the child. If the new
But, it is argued, how can the child be relieved of its obligation^ to a natural parent and still retain its right to inherit? The reason therefor lies in the fact that at the moment of birth the child’s status is fixed by law; at birth the child becomes the issue of the parent, and is included within the provision of the statute which declares all issue shall inherit the property of their parents. In the case of the natural father, the question whether the child shall become his heir is not subject to his assent or contract, and therefore the child’s right to inherit from him is not subject to his election. The law irrevocably fixes his status in that respect the moment'he is bom. In the one case, by no act of the parent can he prevent the child becoming his heir. In the other case, the child cannot become his heir without his consent. One situ
If, as counsel for appellee insist, the doctrine of "once in grace always in grace” controls, and "once adopted always adopted” is to be the rule, I think we should hold that under the statute there can be no legal readoption during the lives of the adoptive parents. This would be an unfortunate rule, and would doubtless work a hardship in many cases. I am of the opinion that Harlan Austin is not entitled to have assigned to him any portion of the estate of Cyrus J. Klapp.
The judgment is reversed, with costs of this court to appellants.
Dissenting Opinion
(dissenting). The statute (3 Comp. Laws, § 8780, 3 Comp. Laws 1915, § 14Í42) provides that upon adoption:
“Such child shall thereupon become and be an heir at law of such person or persons, the same as if he or she were in fact the child of such person or persons.”
The reasoning of my Brother Bird, it seems to me, quite overlooks the fact that the child, whose interests are always paramount, is in no sense a party to what he calls the contract of adoption. There is no contract between the foster parent and the adopted child. The law at the request of the adoptive parent or parents fixes the status of the adopted child, and makes it exactly the same as if the adopted child had been born of the bodies of its foster parents. It is conceded that an adopted child will inherit from its natural parents as well as from its foster parents. Nowhere in the statute is it provided that a second adoption destroys or nullifies the relation upon which heirship is de
The judgment should be affirmed.