*1 et THORNTON al. v. ANDERSON, executrix. No. 17377. March 1951. Joseph McGinty B. T. Sisk, plaintiffs James for in error. Stapleton & Williford, contra. Justice. Mrs. Ruebena Thornton executed her will
Candler,
on December 15,
By
1938.
gave
it she
her husband
be-
$5,
queathed the rest
mother,
of her estate to her
Ander-
Mrs. Allie
son,
no reference to or mention of a
children.
and her husband,
Jr.,
She
O. B. Thornton
September
on
1949, legally adopted
Mary
a minor child,
Rebecca Thornton.
provision
Her will made no
in contemplation
adopting
of that
event. The testatrix died March
Anderson,
1950. Mrs. Allie
the nominated executrix,
probated
first
the will in common form
probate
and then offered it
form,
for
solemn
petition
and her
probate,
part, alleges
for
“that
the said
Thornton,
Ruebena
deceased, left
her
sole heirs at law her
B. Thorn-
husband, O.
Jr.,
ton
adopted child,
and an
Mary Rebecca
Thornton, of
age of nineteen months.”
B.
Jr.,
O.
Thornton
individually
Mary
as next friend
Thornton,
Rebecca
filed a'
caveat'
alleged
paper
offered as Mrs. Thornton’s will should not
probated
be
as such because it had been impliedly
revoked
adoptiоn Mary
subsequent
Rebecca Thornton
exe-
to its
propounder
cution. The
filed a motion to strike the caveat on
alleged
legal
probate
why
reason
should
proceeding
be
The
appealed by
refused.
was
consent
Superior
County.
parties stipulated
Court of Elbert
The
probated
the will involved
valid and should was
solemn
form
it was revoked
adoption Mary
unless
Thornton
the testatrix
her
Rebecca
husband. The mo-
strike the caveat was sustained and
duly
tion to
the will was
exception
probated.
judgment.
to that
Primarily,
two statutes of this State must be examined for
bearing
presented
decision,
quéstion
their
on
is:
a child under the
of this
whether or not the
statutes
implication
inference
of law
State
revoke
in which no
adopting
will of the
mother
antecedent
event. One of
adopting
made in
of that
*2
February
legislature, approved
an
these statutes'
act of
is
(Ga.
1157),
1949, p.
thereafter
L.
25, 1949, effective six months
adoption act
1941
amending
a section of our
of
amending
portion which
of 1949
material
of
act
305), the
is
in
respects
child shall be considerеd
all
follows:- ‘.‘said
petitioner
of
bodily
pe-
natural
issue
or
as if were a
every right
enjoy
privilege
and shall
and
a natural
titioners,
and shall
deemed natural
of-petitioner
petitioners;
or
petitioners to inherit under the laws of
petitioner
or
take
in the absеnce of a will and
descent-and distribution
testamentary gift,
provisions of
instrument
under the
legacy
expressly
unless
execluded therefrom.”
bequest; devise or
language,
in
which,
varying
has existed since
statute,
other
1933,
the Code
de-
is
codified
113-408 of
now
1834
§
cases,
marriage
testator or the
“In
clares that
all
making
to the
him, subsequently
of a
in
child to
birth
event,
in
provision made
which no
Concerning.the
will.”
last statute
be a revocation of the
shall
(12
in
368
E.
to,
Darden,
court
Ellis v.
S.
referred
86.
through
Bleckley,
51), speaking
Chief Justice
11 L.R.A.
652,
specific-.moral
-the
object
“The
to-secure-a
said:
n
(cid:127)
testamentary
upon the
act—-the moral
influente
influence
n
(cid:127)
contingent
having
the mind a
event so
-as
before
momentous
child,
deserving -.of
of a
and so
considera-
the birth
testamentary
framing
scheme.” See also
Sutton v.
(42
214).
61,
1
Jur.-, 661,
E.
In Am.
Hancock,
524); Flannigan (65 v. Howard, 396 200 Ill. N. E. L.R.A. 664, 93 Am. R. 201); St. re estate, Rendell’s 244 Mich. 116); Bragg, N. W. v. Wis. W. Glascott N. 853, 56 L.R.A.
Hilpire (Code Claude, supra, involved an Iowa Statute 3276), provides legiti- which that “the birth of a § re- operate mate child to the testator before his death will as a separate adoption vocation” other sections of a among 2307, conferring adopt- which are: Code on an responsibilities ed child “all the rights, privileges and pertain person adopting child if born law- to the wedlock”; ful Code that “the duties shall, relations between the adoption, thereafter, including right respects, inheritance, be the same that exist law between child”; 2311, providing . Code “. But no action the court in the premises acquired shall affect diminish the of inheri- part of child, tance on the the extent *3 of such in a child natural lawful birth.” In the reasoning of the Iowa following appears: the “The court reasons for the rule that legitimate subsequent birth child to the testator before prior his death as a revocation of his apply will equal subsequent аdoption force under ours, a statute like containing exceptions or qualifications, declaring no and the parent duties and adop- relations between and child by ‘in respects, including right tion shall the inheritance, same that parent the exist law between and child rights lawful birth.’ While these statutory, relations and may enlarged beyond not be the plain meaning of the meaning should not be defeated statute, by any strained legislative construction. We conclude that it is the intention adopted upon to place children the same level as children of birth, respects.” lawful in all Supreme
And it was said Court of Illinois Flanni- gan supra: “By plain unambiguous Howard, lan- guage plaintiff of the in error inherit Bridget from Howard is made identical with the right of child plaintiff when her, born to in error her became child making adoption, аfter the effect, law, the testatrix. The precisely the same the birth of a child to argument against rights plaintiff solely in error is on the born fact, as matter the testa- not, that she was trix, a child mentioned in the and, therefore, not the sort of apply equal argument Statute of Descent. This provide of the same act which for force other sections decedent, making property descent intestate children of the accepted by adoption. By definitions, reference to children and in its progeny parents, child of human is the immediate meaning offspring applies word born to however, the relation parents. By the statute, existing per- recognized legally between child is and declared as related nature. The Statute of Descent does not sons not so relation, legal adopted mention of an case adopted child fixed adopting but the of the parent, law, the rela- creates, the act child.” tion inheritance, by statute, fixed Georgia, use the rules mentioning without therein an “child” “children”
the words Nevertheless, adop- in virtue of our adopted or children. stat- statutes, an or children take under our birth. example, ute of natural children of lawful For descent as “Upon the death of husband inheritance, under our rules heir, wife sole descendants, without lineal his may debts, any, possession if take payment of his 113-903(1). Cоde, under But, administration.” estate without adoption statute and the inheri- provisions of our husband, deceased tance it, conferred deprive wife deceased, descendant of the like a lineal heir law, entire estate as sole at with- right to take his *4 fixing true because the statute administration; and this is out in pari must be inheritance construed materia our rules of with (10 Lamar, Ga. E. Alexander v. 190 656 S. adoption statute. our 42). as similar situation exists to our statute 2d, A de- year’s support the widow and minor children a a to Code, 113-1002, as amended and fathеr. ceased husband 236). was held in Yet it Pierce act of 1939 (3) 680) that, 2d, S. E. Harrison, v. his in de- grandfather, equity a “Where, after death tract apart (alone) scribed of land was set his widow as year’s support, acquired greater she interest than her husband therein; petitioner had did in ocсupy if the rela- fact virtually adopted alleged, child took the as widow year’s support subject equitable rights virtually his such as adopted child; purchasers, holding under her with knowl- edge subject such in like manner take thereto. upon Accordingly, establishment of these and virtuаl facts adoption petitioner as would be alleged, entitled to a decree year’s support far as void so vir- as a adopted tually construing child were concerned.” presumptions indulged. certain must be In 59 C. J. presumed “All 616,'it is stated: be statutes are enacted legislature knowledge with full existing .the condition They of the law and with reference to it. are therefore harmony law, in construed connection and in existing meaning . and their . to be effect determined in con- nection, only not with the common law and constitution, the. but also reference to other statutes and the decisions Pipeline courts.” See Botts Southeastern Co., 190 Ga. 2d, adoption our State, statute of as employs amended supra, language the act of broad as seemingly legislative placing could be used for the purpose as as same level that of opinion in birth, respects; of lawful in all our it was legislature’s intention enactment our law a relation the adopting create between equivalent, precisely law, relation created natural and lawful birth. And- sincе birth and birth amended adoption nature are our statute respects, now and considered the same treated it follows necessary consequence judge, the trial in the at case sustaining propounder’s erred motion bar, to strike caveat; objectors’ probating will involved. Judgment except reversed. All concur, the Justices Duck- C.J., who dissents. worth, dissenting. Justice, By
Duckworth, Chief
Code 113-106 empowered
dispose
property by
pro-
of his
a will,
disposition
only consistent
vided
with the
laws
*5
to
only
purporting
policy of the State.
law this State
The
pro-
power
113-408,
is
found in Code
this
that
restrict
the
vides
of the testator or
birth of
that a
him when there is no
the
a
to
the
a revocation
event,”
“of such an
shall be
important
understanding
pre-
quite
will.
It
that a clear
is
cisely
section,
what, under
last
revokes
will.
It is
the
person
persons.
or some
such
or
event
not
marriage or
sufficient
the
The mere fact of
birth is
to revoke it
spouse
immediate death of the
moment
event occurs. The
prevent
no
revo-
child after the event
would in
occurs
wise
cation, although
destroy any possibility
such death would
spouse
observations,
inheritance
seems
or child. These
it
beyond
plain
question
that
Code sections
me, make
it
solely
question
referred
are confined
They
neither deal
nor
person to
a will.
with
have
make
provided
to the law inheritаnce as
the statute
relation
adoption.
distribution and the law of
(Ga.
1157,
adoption
1949,
amendment of
pp.
L.
1158)
purport
foregoing
does not even
to amend
alter the
expressly
purpose
law make will
states that
but
its
is to
305)
1941, p.
and,
amend
act
L.
solely
it
its
child.
terms,
deals
Since
purport
113-408,
not
amend Code
113-106
it does
§§
requirements
express
found
constitutional
amendments
2-1916,
par.
(Ann.)
art.
sec.
in Code
Constitution
24)
have
it
Georgia;
application;
but if
given
majority opinion,
effect attributed to
to be
is
an amendment of those Code
im-
becоmes
sections
then it
repealed by
may
implication;
plication. Laws
and if
found
him,”
113-408,
a child to
Code
term, “birth of
ruled
adopted child,
majority,
include the
then
is, by
repealed
this amendment,
Code section
much of
inserted,
substance,
thereof,
words,
in lieu
“the birth
legal adoption
to him or
him.” It
of a child
rule
construction that,
repeal
before
im-
established
occur,
repugnant
the later act must be
plication to and
the former law.
If the two will
bear
con-
irreconcilable
repugnancy,
then the former law not
avoids
struction
changed by the later act. State Board
Education v. Richmond
County
Education,
2d, 369);
Board
I would it be right that would provide law that have the effect as the birth of child, same but that should by plain be done enacted law-making body sole desirability justi- virtue or of such State. The a law is no -obtaining tortured fication contrary construction guide established rules construction. The majority opinion opinion the land, will become law of and this will nеither nor parties change affect the of these the law as fixed give recognition majority, but it does rules construc- we depend in must the future. fore- For the judgment I would affirm going reasons the trial court. Gilbert v. Fowler. (defendant error) Wyatt, Ruth against Justice. Mrs. D. Fowler filed a suit error) (plaintiff seeking L. D. Gilbert the reformation of deed Fowler, L. D. to Joe executed Gilbert C. husband of defendant deceased, error, alleged on the since mutual mistake. It who, writing mistake the scrivener deed, when read, description along South drew the “thence the East line lots of land numbers 498 and distance 511 a of 1524 feet to the South-