367 P.2d 592 | Colo. | 1961
delivered the opinion of the Court.
Plaintiffs in error were defendants and defendant in error was plaintiff in the trial court. We shall refer to them as they there appeared or by name.
The matter in issue is whether an adoptive father, who had agreed with the court granting the adoption not to disinherit his adopted child, could nevertheless do so.
The Last Will and Testament of Charles M. Harold, Deceased, plaintiff’s adoptive father, was admitted to probate on May 7, 1960, in Fremont County, Colorado. The adoptive mother of plaintiff had previously secured a divorce from Charles, leaving plaintiff as his sole heir at law by virtue of the adoption decree entered in the Juvenile Court of the City and County of Denver on September 24, 1926. This decree read in pertinent part that Charles and his wife “promise not to disinherit said child; which promise is one of the conditions of this decree.”
By his Will, Charles bequeathed plaintiff $10.00 out of a gross estate of $9,833.58; the balance of his estate was bequeathed to plaintiffs in error Pool and Callahan and a nonappearing party, the Church of the Nazarene — all strangers to the testator.
Plaintiff brought this action in the district court seeking to impress a trust on the corpus of the estate and sought an order requiring the executor to pay plaintiff the net assets therefrom.
Following trial to the court written findings of fact, conclusions of law and judgment were entered based upon four previous decisions of this court, viz.: Dillingham v. Schmidt, 85 Colo. 28, 273 Pac. 21 (1928); Schmidt v. Dillingham, 86 Colo. 576, 283 Pac. 1041 (1930); Neville v. Bracher, 94 Colo. 550, 31 P. (2d) 911 (1934); and Quintrall v. Goldsmith, 134 Colo. 410, 306 P. (2d) 246 (1956).
Defendants urge two grounds for reversal stating that
“(A) That in the instant case the adoption Decree was not supported by a separate contract (as in Dillingham v. Schmidt), and
“(B) That in the instant case, the legatees under the Last Will and Testament of said decedent were not attempting to attack, collaterally, the Decree of Adoption.”
Though generally, adopted children gain only the ordinary rights of inheritance, as was said in Dillingham, supra, this “* * * does not affect the power of the adoptive parent to dispose of his property by will, but the adoptive parent may deprive himself of the power thus to dispose of his property by a contract binding him to give the adopted child a certain share of his property.”
The point defendants make is that in Dillingham there apparently was a contract separate and apart from the decretal requirement not to disinherit. Due to this factor, and the scope of Dillingham being limited by our decision in Quintrall, supra, they contend that there being no separate contract here, the judicial extraction of such a non-statutory requirement as a promise or condition of the adoption is void. We do not agree.
In Quintrall we stated in pertinent part:
“The first question to be determined is: At the time the first adoption decree was entered was the wording relating to the forced inheritance contained therein valid?
“[1] This question is answered in the affirmative. However unwise may have been the decision in Dillingham v. Schmidt, supra, we are not disposed to overrule it now and for the same reason we are not willing to extend its application. It has been the rule of this jurisdiction followed since 1928 and until the adoption of C.R.S. ’53, 152-2-4, that such wording in a decree is valid and binding on the first adoptive parents. We recognize that vested rights may have accrued to some of our citizens
It is true that in Quintrall, in speaking of the Dillingham decision, we used the words “ * * * we are not willing to extend its application.” This language, however, did not mean there had to be a separate contract to enforce an agreement not to disinherit, though we mentioned that difference. We made it definite however that such forced inheritance, though irregular, would be sustained if made prior to the enactment of C.R.S. ’53, 152-2-4 in 1941. It is stated in Quintrall that “We recognize that vested rights may have accrued to some of our citizens thereunder.”
We also point out that in Quintrall it was held that “ * * * the wording in question must be construed to mean ‘ * * * not to disinherit said child * * * ’ as long as the Wiltses stood in loco parentis ” There that status no longer obtained since the first adoptive parents were surplanted by a later re-adoption of the child by other parents. In the instant case the testator remained the adoptive parent until his death, and was still bound by the adoption decree.
We turn next to the question as to whether the defendants were making a collateral attack upon the original adoption decree by admitting the adoption but
Disputes as to decretal or contractual rights usually are not determined or even determinable until a claim is asserted thereunder. Plaintiff himself raised the issue in dispute by his initial district court action. The defense of the limited nature of plaintiff’s right was indeed properly asserted. To hold otherwise would mean that regardless of the reason for the asserted inapplicability of the judgment of adoption to this Will the defendants could not assert their defense thereto. This cannot be the law.
The judgment is affirmed.
