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Descent, $1 – meaning of "succes§

"

denote the devolution of title to propsion.”

erty from an ancestor to his imme5. "Succession" is a proper term to diate heir.

APPEAL by an adopted son from a judgment of the Milwaukee County Court (Sheridan, J.) in favor of petitioner in a proceeding for the administration of the estate of her deceased uncle. Affirmed.

The facts are stated in the opinion of the court.

Messrs. Quarles, Spence, & Quarles, (N.S.) 296, 129 Pac. 524; United States for appellant:

Trust Co. v. Hoyt, 115 Misc. 663, 190 The adoption of appellant created a N. Y. Supp. 166, affirmed in 223 N. Y. status for the purpose of inheritance 616, 119 N. E. 1083; Re Cadwell, 26 or succession between him and James Wyo. 412, 186 Pac. 499; Denton v. W. Bradley, deceased.

Miller, 110 Kan, 292, 203 Pac. 693. Vidal v. Commagere, 13 La. Ann. If appellant has an interest in the 516; Clark v. Clark, 76 N. H. 551, 85 estate, he is entitled to an impartial Atl. 758; Sewall v. Roberts, 115 Mass. administration. 262; Burrage v. Briggs, 120 Mass. 103; Speiser v. Merchants' Exch. Bank, Glascott v. Bragg, 111 Wis. 610, 56 110 Wis. 506, 86 N. W. 243; Bartelt v. L.R.A. 258, 87 N. W. 853; Lichter v. Smith, 145 Wis. 37, 129 N. W. 782, Thiers, 139 Wis. 481, 121 N. W. 153; Ann. Cas. 1912A, 1195; Gary, Probate Tirrell v. Bacon, 3 Fed. 62; Stearns v. Law, § 632; 3 Woerner, AdministraAllen, 183 Mass. 404, 97 Am. St. Rep. tion, p. 1781; 24 C. J. 106; Zimmer v. 441, 67 N. E. 349; Flannigan v. Saier, 155 Mich. 388, 130 Am. St. Rep. Howard, 200 Ill. 396, 59 L.R.A. 665, 575, 119 N. W. 433. 93 Am. St. Rep. 201, 65 N. E. 782; Messrs. Miller, Mack, & Fairchild, Hole v. Robbins, 53 Wis. 521, 10 N. W. for respondent: 617; Parsons v. Parsons, 101 Wis. 76, An adopted child does not take from 70 Am. St. Rep. 894, 77 N. W. 147; kindred of adoptive parents. Sandon v. Sandon, 123 Wis. 603, 101 Hole v. Robbins, 53 Wis. 514, 10 N. N. W. 1089; Keegan v. Geraghty, 101 W. 617; Lichter v. Thiers, 139 Wis. Ill. 26; Van Derlyn v. Mack, 137 Mich. 481, 121 N. W. 153; Becker v. Ches146, 66 L.R.A. 437, 109 Am. St. Rep. ter, 115 Wis. 90, 91 N. W. 87, 650; 669, 100 N. W. 278, 4 Ann. Cas. 879; Chase v. American Cartage Co. 176 Anderson v. French, 77 N. H. 509, Wis. 235, 186 N. W. 598. L.R.A.1916A, 660, 93 Atl. 12, Ann. The Wisconsin statutes follow the Cas. 1916B, 89; Humphries v. Davis, common-law principles of blood rela100 Ind. 274, 50 Am. Rep. 788; Ross v. tionship. Ross, 129 Mass. 243, 37 Am. Rep. 321; Cleaver v. Cleaver, 39 Wis. 96, 20 Markover v. Krauss, 132 Ind. 294, 17 Am. Rep. 30; Sander's Estate, 126 L.R.A. 806, 31 N. E. 1047; Bray v. Wis. 660, 105 N. W. 1064, 5 Ann. Cas. Miles, 23 Ind. App. 432, 54 N. E. 446,

508; Hole v. Robbins, 53 Wis. 514, 10 55 N. E. 510; Hartwell v. Tefft, 19 R. I.

N. W. 617; Lichter v. Thiers, 139 Wis. 644, 34 L.R.A. 500, 35 Atl. 882; Re

481, 121 N. W. 153; Brown v. Baraboo, Truman, 27 R. I. 209, 61 Atl. 598; Re

90 Wis. 151, 30 L.R.A. 320, 62 N. W. Olney, 27 R. I. 495, 63 Atl. 956; Rhode Island Hospital Trust Co. v. Hum

921; Perkins v. Simonds, 28 Wis. 90; phrey, 32 R. I. 318, 79 Atl. 829; Warren

Campbell v. Campbell, 37 Wis. 213. v. Prescott, 84 Me. 483, 17 L.R.A. 435,

If this court were not already com30 Am. St. Rep. 370, 24 Atl. 948; Pow

mitted to the rule that an adopted er v. Hafley, 85 Ky. 671, 4 S. W. 683;

child does not take from kindred of Atchison v. Atchison, 89 Ky. 488, 12 adoptive parents, the proper construcS. W. 942; Hilpire v. Claude, 109 Iowa, tion of the statute would require such 159, 46 L.R.A. 171, 77 Am. St. Rep. 524, holding. 80 N. W. 332; Shick v. Howe, 137 Iowa, Cleaver v. Cleaver, 39 Wis. 96, 20 249, 14 L.R.A.(N.S.) 980, 114 N. W. Am. Rep. 30; Nunnemacher v. State, 916; Re Walworth (Batchelder v. Wal- 129 Wis. 190, 9 L.R.A.(N.S.) 121, 108 worth) 85 Vt. 322, 37 L.R.A.(N.S.) N. W. 627, 9 Ann. Cas. 711; United 849, 82 Atl. 7, Ann. Cas. 1914C, 1223; States v. Perkins, 163 U. S. 625, 41 Re Book, 90 N. J. Eq. 549, 107 Atl. 435; L. ed. 287, 16 Sup. Ct. Rep. 1073; Hole Riley v. Day, 88 Kan. 503, 44 L.R.A. v. Robbins, 53 Wis. 514, 10 N. W. 617; (185 Wis. 393, 201 N. W. 973.) Lichter v. Thiers, 139 Wis. 481, 121 Edward Bradley, were dead, WilN. W. 153.

liam H. Bradley leaving an adopted The statute, while receiving a liber

son, William T. Bradley, the appelal construction to effectuate its pur- lant, and Edward Bradley, leaving pose, should receive a strict construction against adding to its purpose, Tweedy, respondent herein.

a surviving daughter, Edna B. which purpose is plainly limited to a change of status as between the par

Edna B. Tweedy applied to the ent and the child.

county court of Milwaukee county Hockaday v. Lynn, 200 Mo. 456, 8 for administration of the estate of L.R.A.(N.S.) 117, 118 Am. St. Rep. said James W. Bradley, praying that 672, 98 S. W. 585, 9 Ann. Cas. 775; letters of administration issue to the Boaz v. Swinney, 79 Kan. 332, 99 Pac. First Wisconsin Trust Company and 621; Keegan v. Geraghty, 101 Ill. 26;

Arthur W. Fairchild. Thereupon Parsons v. Parsons, 101 Wis. 76, 70

the appellant, William T. Bradley, Am. St. Rep. 894, 77 N. W. 147; Glas

objected to the appointment of Arcott v. Bragg, 111 Wis. 605, 56 L.R.A.

thur W. Fairchild as one of the ad258, 87 N. W. 853. It is uniformly held under similar

ministrators, and made application statutes that adoption does not make

to the county court to take proofs of a child heir to collateral kindred of an

heirship, and for an order finding adoptive parent.

him next of kin to said James W. 1 R. C. L. 621; 1 C. J. § 131, p. 1401; Bradley, deceased. Upon said hearSpencer, Dom. Rel. pp. 442, 423; 3 ing the court made findings of fact Thomp. Real Prop. $ 2347, pp. 398, 399; and conclusions of law, and adjudged 1 Woerner, Administration, p. 204; Edna B. Tweedy to be the sole heir Keegan v. Geraghty, 101 Ill. 26;

at law of said James W. Bradley, Wallace v. Noland, 246 II.535, deceased, and that the status of ap138 Am. St. Rep. 247, 92 N. E. 956; Hockaday y. Lynn,

pellant as adopted son of William

supra; Helms v. Elliott, 89 Tenn. 446, 10

H. Bradley did not constitute him L.R.A. 535, 14 S. W. 930; Phillips v.

next of kin or an heir at law of said McConica, 59 Ohio St. 1, 69 Am. St. James W. Bradley, deceased, and isRep. 753, 51 N. E. 445; Van Derlyn v. sued letters of administration to the Mack, 137 Mich. 146, 66 L.R.A. 537, First Wisconsin Trust Company and 109 Am. St. Rep. 669, 100 N. W. 278, Arthur W. Fairchild. .

From this 4 Ann. Cas. 879; Merritt v. Morton, judgment William T. Bradley brings 143 Ky. 133, 33 L.R.A.(N.S.) 139, 136 this appeal. S. W. 133; Burnett's Estate, 219 Pa. Reduced to its lowest terms, the 599, 69 Atl. 74; Batcheller-Durkee v. question is whether William T. Batcheller, 39 R. I. 45, L.R.A.1916E, Bradley is an heir at law of the de545, 97 Atl. 378.

ceased, James W. Bradley, by reason The next of kin is entitled to admin

of his adoption as a son by William istration.

H. Bradley. It is the contention of Welsh v. Manwaring, 120 Wis. 377,

appellant that this relation results 98 N. W. 214; Brunson v. Burnett, 2

from the provisions of g 4024, Stat., Pinney (Wis.) 185; Steinberg

which provides that a child so Saltzman, 130 Wis. 419, 110 N. W. 198; adopted shall be deemed, for the Speiser v. Merchants' Exch. Bank, 110 Wis. 506, 86 N. W. 243; Bartelt v.

purposes of inheritance and succesSmith, 145 Wis. 37, 129 N. W. 782,

sion by such child, custody of the Ann. Cas. 1912A, 1195.

person and right to obedience by

such parents by adoption, and all Owen, J., delivered the opinion of other legal consequences and inciof the court:

dents of the natural relation of parJames W. Bradley departed this ents and children, the same to all life February 21, 1924, intestate, intents and purposes as if the child leaving an estate in excess of $4,- had been born in lawful wedlock of 000,000. He never married, and at such parents by adoption, excepting the time of his death his parents that such child shall not be capable and his brothers, William H. and of taking property expressly limited

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to the heirs of the body of such par- coming to it as a result of the adopents.”

tion. Parsons v. Parsons, 101 Wis. From time immemorial it has 76, 70 Am. St. Rep. 894, 77 N. W. been held by English-speaking 147; Re Bearby, - Wis. 200 N.

— peoples that the property of intes- W. 686. But it has never been held tate deceased persons should de- by this court, nor is it the prevailscend to kindred of the blood. This ing judicial view of the courts of is not a conclusion arrived at by ap- this country, that an adoption statplication of principles of logic, but ute should be liberally construed to it is a tenet of justice, intuitively divert the descent of property left and generaliy recognized, and crys- by those who are not parties to the tallized into forms of law by com- adoption proceedings from its natmon consent. It formed the basis tural course of descent. for the principles of descent obtain- There are many reasons why an ing at common law, and finds ex- adoption statute should be strictly pression in the statutes of descent construed to enforce the duties and enacted in the various states of the obligations voluntarily assumed by Union. It goes without saying that adoptive parents, and to protect the any statute which interferes with adopted child in those rights and that principle, or interrupts the nat privileges which the law intends to ural course of descent of property, secure to him as the result of the Statutes

should be strictly adoption. These reasons, however, descent-strict construed, not only do not apply when the rights of construction.

because it contra- those who were not parties to the venes the common law, but because adoption proceedings are involved. it is repugnant to fixed notions of The status resulting from adoption natural justice; and this is especially proceedings is not a natural one. true in this state, where it is held It is a civil or contractual status. that the right to inherit property is One may have the right to asa natural right, which the legisla- sume the status of a father to ture cannot destroy. Nunnemacher a stranger of the blood, but he V. State, 129 Wis. 190, 9 L.R.A. has no moral right to impose up(N.S.) 121, 108 N. W. 627, 9 Ann. on his brother the status of an Cas. 111. This spirit pervaded the uncle to his adopted son. As was opinion of this court in Hole v. Rob- said in Warren v. Prescott, 84 bins, 53 Wis. 514, 10 N. W. 617, Me. 483, 17 L.R.A. 439, 30 Am. St. where it was held that the natural, Rep. 370, 24 Atl. 948: “By adopand not the adoptive, parents of an tion, the adopters can make for adopted son, inherited his property themselves an heir, but they cannot upon his decease, and the opinion thus make one for their kindred." of this court in Lichter v. Thiers, In Merritt v. Morton, 143 Ky. 133, 139 Wis. 481, 121 N. W. 153, plain- 33 L.R.A.(N.S.) 139, 136 S. W. 133, ly indicates a similar disposition on it was said: "The act of the foster the part of the court as then consti- parents in adopting the child is a tuted, although we do not think contract into which they entered that case is decisive of the question with those having the lawful custody here presented, as contended by the of the child, an agreement personal respondent.

to themselves, and while they have This court has held that adoption a perfect right to bind or obligate statutes, as well as matters of pro

themselves to make the child their cedure leading up to adoption, heir, they are powerless to extend should be liberally construed to this right on his part to inherit from

carry out the benef. others, All inheritance laws are -adoption

icent purposes of based or built upon natural ties of construction. the adoption insti. blood relationship, whereas

ar tution, and to protect the adopted adopted child's right to inherit rests child in the rights and privileges upon a contract, and hence only

liberal

(185 Wis. 393, 201 N. W. 973.) those parties to the contract are natural justice which are embraced bound by it."

as by common consent by the AngloAnd, in construing the adoption Saxon race. statute of Michigan, the court of Text-writers generally lay down that state said: “We see nothing in the rule that under statutes of adopit to lead to the belief that it was the tion which declare the adopted child legislative intention to permit one to to have all the rights, including that adopt heirs for third persons." Van of inheritance, of a child born in Derlyn v. Mack, 137 Mich. 146, 66 lawful wedlock, the adopted child is L.R.A. 437, 109 Am. St. Rep. 669, not constituted an heir of the collat100 N. W. 278, 4 Ann. Cas. 879. eral kindred of the adoptive parents.

Of course, what was said by these 1 R. C. L. p. 621; 1 C. J. p. 401; courts was said with reference to Spencer, Dom. Rel. 422; 3 Thomp. the statutory provisions on the sub- Real Prop. pp. 398, 399; 1 Woerner, ject of adoption of their respective Administration, p. 204. This has states. These authorities do not go been held in many cases, among to the extent of denying to the which we cite the following: Hocklegislature the power of prescribing aday v. Lynn, 200 Mo. 456, 8 L.R.A. a course of descent which will take (N.S.) 117, 118 Am. St. Rep. 672, property of deceased persons out of 98 S. W. 585, 9 Ann. Cas. 775; the current of their blood. That is Batcheller-Durkee v. Batcheller, 39 a question that was not before any R. I. 45, L.R.A.1916E, 545, 97 Atl. of the courts quoted, a question 378; Van Derlyn v. Mack, 137 Mich. which is not here, and upon 146, 66 L.R.A. 437, 109 Am. St. Rep. which we very carefully refrain 669, 100 N. W.278, 4 Ann. Cas. 879; from expressing any opinion, in Helms v. Elliott, 89 Tenn. 446, 10 view of our decision in Nunnemach- L.R.A. 535, 14 S. W. 930; Moore v. er v. State, 129 Wis. 190, 9 L.R.A. Moore, 35 Vt. 98. This list of cita(N.S.) 121, 108 N. W. 627, 9 Ann. tions might be greatly extended, but Cas. 711. We are now emphasizing to no good purpose. We commend the fact that to accomplish such pur- the student of the subject to Hock

pose the legislature aday v. Lynn, supra, and BatchellerDescent

should use explicit Durkee v. Batcheller, 39 R. I. 45, statute to take property out of and unmistakable L.R.A.1916E, 545, 97 Atl. 378, for a blood of decedent.

language. The con- philosophical discussion of the sub

sequences which ject, as well as for very satisfactory would result from such a law are reviews of the authorities of this very well illustrated by this very country relating thereto. situation. The respondent herein is The industry of appellant's counrelated by ties of blood to the de- sel has called to our attention but ceased. The appellant is not relat- three jurisdictions holding to the ed to him in any manner-neither contrary: Re Cadwell, 26 Wyo. by ties of blood nor by contractual 412, 186 Pac. 499, Shick v. Howe, relations. If his contention is to be 137 Iowa, 249, 14 L.R.A. (N.S.) 980, maintained, he, a stranger to the 114 N. W. 916, Riley v. Day, 88 Kan. blood of the deceased, bearing to him 503, 44 L.R.A.(N.Š.) 296, 129 Pac. not even the duty of kindred regard, 524, and Denton v. Miller, 110 Kan. will divide with the respondent his 292, 203 Pac. 693. In these cases, estate. Furthermore, but for the however, it is conceded that their existence of the respondent, he

respondent, he conclusions are not sustained by the would succeed to deceased's entire weight of judicial authority in this estate, thus diverting it entirely country. We fully agree with the from his blood relatives, and cutting Missouri court that "it may be laid off deceased's cousins, and all his down as a general conclusion that, other blood relatives, from any par- while the statute of adoption must ticipation therein. This result is be read into the statute of dower entirely repugnant to the notions of and that of descent and distribution, it is with this singularity, always to such parents by adoption, excepting be observed, viz., that the adopted that such child shall not be capable child is so let in only for the purpose of taking property expressly limited of preserving in full its right of in- to the heirs of the body of such parheritance from its adoptive parent, ents.and the door to inheritance is shut, Section 2275, Stat., provides: “Inand its bolt shot, at that precise heritance, or succession by right of

, point.” Hockaday v. Lynn, 8 L.R.A. representation, takes place when the (N.S.) 121, supra.

descendants of any deceased heir This conclusion is not out of har- take the same share or right in the mony with anything that has been estate of another person that their said by this court upon the subject. parent would have taken if living." We think that the reasoning in Hole Counsel for appellant quote this v. Robbins, 53 Wis. 514, 10 N. W. statutory provision, and then, speak617, leads naturally to this conclu- ing of the right of succession found sion that it is in harmony with in § 4024, say: “This right of suceverything said in Lichter v. Thiers, cession can relate only to inheritance 139 Wis. 481, 121 N. W. 153, and in from others than the adoptive parno way affects the decisions of this ent, and refers both to lineal and colcourt in Glascott v. Bragg, 111 Wis. lateral inheritance. .

There is no 605, 56 L.R.A. 258, 87 N. W. 853, such thing as succession between and Sandon v. Sandon, 123 Wis. 603, parent and child. Succession only 101 N. W. 1089. The two latter occurs when the property of a third cases held that the adoption of a party is to be taken by a person repchild after the making of a will op- resenting, in another degree, the erated as a revocation of the will, heir who would take if living." the same as marriage and the birth This is an erroneous view of the of issue. We agree that that is the meaning of the term "succession." necessary result of the voluntary That which is deadoption of a child, because the du- fined by § 2275 is right of

adopted child ties and obligations are the same to succession by right to inherit from the adopted child as to a child born of

representation.

tive of parent. in lawful wedlock. That which we Of course, succesdeny here is that the consequences

sion by right of representation ocvoluntarily assumed by the adoptive curs only when the property of a parents may be visited upon those deceased person is to be taken by a who were not parties to the adop- person representing in another detion proceedings, and had no voice gree the heir who would take if livtherein.

ing. “Succession” is a proper term Thus far our discussion relates to denote the devolution of title to to adoption statutes in general, property from an and broad principles which, we ancestor to his im

-meaning of

"succession." think, should be borne in mind in mediate heir. Thus, the construction of such statutes. in 18 C. J. at p. 803, it is said: It now remains for us to consider “ 'Succession' is a word of technical certain specific provisions of our meaning, denoting the devolution of adoption statute already quoted, title to the property under the laws from which appellant reads a legis- of descent and distribution.And

” lative intent to make the adopted again on the same page it is said: child an heir of the kindred of the "Although, as has been seen, ‘suc

“, adoptive parents. Section 4024 pro- cession' is a broader term than 'devides, in part, that “a child so adopt- scent, on account of its applying to ed shall be deemed, for the purposes personal as well as real property, of inheritance and succession by the two words are often used synsuch child,

the same to all onymously. Indeed, descent is intents and purposes as if the child sometimes defined in the terms of, had been born in lawful wedlock of or conjunctively with, 'hereditary

collateral rela

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