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(185 Wis. 393, 201 N. W. 973.)

succession.' Also, the word 'inheritance' is sometimes used synonymously with 'descent' and 'succession,' and there is substantially no difference between some definitions of 'descent' and 'title by descent,' or between the definitions of 'succession' and 'succession by law.""

For numerous authorities to the same effect, see Words & Phrases, title, "Succession." An inheritance tax is commonly spoken of as a succession tax, though it deals in large if not in major part with the devolution of property from a deceased person to his heirs in the first degree. The significance which appellant's attorneys attach to the word "succession" in § 4024 is unwarranted. Their conclusion is due, no doubt, to the false premise in taking as the definition of the term "succession" that which is defined to be succession by right of representation in § 2275, Stat.

A further contention is made that the phrase in § 4024, "excepting that such child shall not be capable of taking property expressly limited to the heirs of the body of such parents," implies that the adopted child may inherit directly from the heirs of the adoptive parents. This phrase constitutes an exception, and it denotes a withholding of some part of that which is granted. That which is granted to the adopted child by § 4024 is the right to inherit from his adoptive parents, and this exception simply withholds from him a portion of that complete right of inheritance. It denies him the right to inherit property from his adoptive parents which is expressly limited to the heirs of the body of such parents. Holding as we do that a right on the part of an adopted child to inherit from any others than his adoptive parent calls for clear and unmistakable legislative expression, we cannot accord any such legislative purpose to a phrase so illusive as this. The reason for the presence of this phrase in the statute is not clear, unless it was the legislative thought that in the absence of such phrase an

adopted child might be held to be an heir of the body of the adoptive parents. But, whatever the reason for its insertion, it cannot be construed as indicating a legislative intent to make the adopted child an heir to any others than those who consented to that status and relation by the act of adoption, namely, the adoptive parents.

The adoption statutes of Rhode Island (Pub. Laws 1866, chap. 627, § 7) provide that "a child so adopted shall be deemed, for the purposes of inheritance by such child, and all other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as if he had been born to them in lawful wedlock; except that he shall not be capable of taking property expressly limited to the heirs of the body or bodies of the parents by adoption, nor property from the lineal or collateral kindred of such parents by right of representation."

In Hartwell v. Tefft, 19 R. I. 644, 34 L.R.A. 500, 35 Atl. 882, and Rhode Island Hospital Trust Co. v. Humphrey, 32 R. I. 318, 79 Atl. 829, we find dicta which give the impression that the exception prohibiting the adopted child from taking property "from the lineal or collateral kindred of such parents by right of representation" implied the right to take directly from the collateral kindred of the adoptive parents. But when that question came squarely before the court in Batcheller-Durkee v. Batcheller, 39 R. I. 45, L.R.A.1916E, 545, 97 Atl. 378, the court came to the conclusion reached by the supreme court of Illinois in Keegan v. Geraghty, 101 Ill. 26, in which case the exact question was considered by the Illinois court, and held that "no right of inheritance from a child of the adopting parent born to him in lawful wedlock was given to the adopted child."

The statutes of both Rhode Island and Illinois contained exactly the same exception that we are here considering, and both courts held

that neither that exception, nor the further exception found in their statutes, to wit, "nor property from the lineal or collateral kindred of such parents by right of representation" (R. I. Pub. Laws 1866, chap. 627, § 7, and Rev. Stat. (Ill.) 1874, chap. 4, § 5), justified the implication that an adopted child could inherit directly from the kindred of the adoptive parents.

Counsel for appellant state that language could not more plainly indicate the legislative intent to make the adopted child an heir of the kindred of the adoptive parents than that employed in § 4024, Stat. We refer to the language of the New Hampshire statute (Pub. Stat. 1901, chap. 181, § 5), which provides: "The child so adopted shall bear the

same relation to his adopting parents and their kindred in respect to the inheritance of property and all other incidents pertaining to the relation of parent and child as he would if he were the natural child of such parents."

There can be no doubt concerning the legislative intent from the language there employed, and we commend that language as clearly expressing a legislative purpose to constitute an adopted child the heir of the kindred of his adoptive parents.

Our conclusion is that the appellant is not an heir of the deceased, James W. Bradley, and that the judgment of the County Court was right.

Judgment affirmed.

ANNOTATION.

Right of adopted child to inherit from kindred of adoptive parents.

I. In general, 8.

II. As affected by form of statute:

a. In general, 10.

b. Express limitation of heritable

quality, 13.

c. Where there is no specific provision as to inheritance, 15.

1. In general.

In general, it is not intended to inIclude in this annotation cases involving the question as to whether the lex domicilii of the parent at the time of the adoption, or the lex rei sitæ, shall control in determining the right of inheritance of the adopted child. Another question excluded is that relating to the right of an adopted child to take under a will as the "child," issue, etc., of the adoptive parent; for cases upon this point, see 1 R. C. L. 622.

The right of adopted children to inherit as heirs of the adoptive parents, or as heirs of relatives or descendants of the adoptive parents, depends entirely upon statutory or constitutional provisions. While some courts adopt a stricter construction of these statutes than do others, yet it is the general view that an adoption statute will not be construed to make an adopted child an heir of relatives of the adoptive

parent, unless there is language in the statute clearly to that effect. In the construction of these statutes, however, there is a difference of opinion, even where the provisions are substantially similar. See 1 R. C. L. § 621.

"Consanguinity is so fundamental in statutes of descents and distributions that it may only be ignored by construction when courts are forced so to do either by the terms of express statute or by inexorable implication." Hockaday v. Lynn (1906) 200 Mo. 456, 8 L.R.A. (N.S.) 117, 118 Am. St. Rep. 672, 98 S. W. 585, 9 Ann. Cas, 775.

In the following cases the right of the adopted child to inherit from a relative of the adoptive parent, or take as representative of a deceased adoptive parent, was denied, because of the construction placed by the court upon the particular statute:

Illinois. Wallace v. Noland (1910) 246 Ill. 535, 138 Am. St. Rep. 247, 92 N. E. 956 (stating rule); Keegan v. Geraghty (1881) 101 Ill. 26 (child of adoptive parent).

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60 Iowa, 732, 13 N. W. 655 (grand- 318, 79 Atl. 829 (uncle by adoption), parent by adoption).

Kansas. Boaz v. Swinney (1909) 79 Kan. 332, 99 Pac. 621 (uncle by adoption).

Kentucky.-Merritt v. Morton (1911) 143 Ky. 133, 33 L.R.A. (N.S.) 139, 136 S. W. 133 (lineal ancestor).

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Massachusetts. Wyeth v. Stone (1899) 144 Mass. 441, 11 N. E. 729 (as representative of deceased adoptive parent); Brown v. Wright (1907) 194 Mass. 540, 80 N. E. 612 (right heir of brother of adoptive parent); Gammons v. Gammons (1912) 212 Mass. 454, 99 N. E. 25 (right of inheritance limited to adoptive parents and their legal descendants).

Michigan.- Van Derlyn v. Mack (1904) 137 Mich. 149, 66 L.R.A. 437, 109 Am. St. Rep. 669, 100 N. W. 278, 4 Ann. Cas. 879 (stating the rule).

Missouri.-Hockaday v. Lynn (1906) 200 Mo. 456, 8 L.R.A. (N.S.) 117, 118 Am. St. Rep. 672, 98 S. W. 585, 9 Ann. Cas. 775 (uncle by adoption); Rauch v. Metz (1919) Mo., 212 S. W. 357 (collateral kindred).

New Hampshire.-Meader v. Archer (1889) 65 N. H. 214, 23 Atl. 521 (ancestor of adoptive parent).

New York.-Re Powell (1920) 112 Misc. 74, 183 N. Y. Supp. 939, affirmed in 193 App. Div. 965, 184 N. Y. Supp. 945 (aunt by adoption); Hopkins v. Hopkins (1922) 202 App. Div. 606, 195 N. Y. Supp. 605 (uncle by adoption), affirmed in (1923) 236 N. Y. 545, 142 N. E. 277; Kettell v. Baxter (1906) 50 Misc. 428, 100 N. Y. Supp. 529 (aunt by adoption).

Ohio. Quigley v. Mitchell (1884) 41 Ohio St. 375 (ancestor of adoptive parent); Phillips v. McConica (1898) 59 Ohio St. 8, 69 Am. St. Rep. 753, 51 N. E. 445 (ancestor of adoptive par

ent).

Pennsylvania. Burnett's Estate (1908) 219 Pa. 599, 69 Atl. 74 (collateral kindred); Gable's Estate (1906) 16 Pa. Dist. R. 218 (uncle by adoption).

Rhode Island.-Batcheller-Durkee v. Batcheller (1916) 39 R. I. 45, L.R.A. 1916E, 545, 97 Atl. 378 (brother by adoption); Rhode Island Hospital Trust Co. v. Humphrey (1911) 32 R. I.

Tennessee.-Helms v. Elliott (1890) 89 Tenn. 446, 10 L.R.A. 535, 14 S. W. 930 (uncle by adoption).

Vermont.-Moore v. Moore (1862) 35 Vt. 98 (uncle by adoption).

Wisconsin.-RE BRADLEY (reported herewith) ante, 1 (uncle by adoption).

It is pointed out in Kettell v. Baxter (1906) 50 Misc. 428, 100 N. Y. Supp. 529: "Adoption is the taking of a stranger in the blood as one's own child. The proceeding of adoption and the relation established is personal to the foster parent and the child. The statute gives to them all the rights to be derived from the legal relation of parent and child, including the 'right of inheritance from each other.' The right is not given, however, either expressly or by implication, to the child, to inherit through the foster parent from his collateral kin. In other words, the child becomes heir only to the foster parent. This right of inheritance flows from the artificial relation established at the request of the one and with the consent of the other. The adoption proceedings perpetuate the desire of the parent that the child shall be his heir. But a stranger to the adoption proceedings, who has never recognized the existence of any artificial relation, should not have his property diverted from the natural course of descent. The claim of Laura Wendell that, as an adopted daughter of a predeceased sister of Sarah R. Hall, she became an heir at law of Sarah R. Hall, fails unless it finds clear support in the statute. Heirship from a source so remote must be grounded in statute, and cannot be implied."

In the following cases an adopted child was held entitled to inherit property from a relative of the adoptive parent, either directly or by right of representation of the deceased adoptive parent:

Iowa.-Shick v. Howe (1908) 137 Iowa, 249, 14 L.R.A. (N.S.) 980, 114 N. W. 916.

Kansas.-Riley v. Day (1913) 88 Kan. 503, 44 L.R.A. (N.S.) 296, 129 Pac. 524; Malaney v. Cameron (1916)

99 Kan. 70, rehearing in (1917) 99 Kan. 424, 161 Pac. 1180; Denton v. Miller (1922) 110 Kan. 292, 203 Pac. 693.

Maine.-Warren v. Prescott (1892) 84 Me. 483, 17 L.R.A. 439, 30 Am. St. Rep. 670, 24 Atl. 948.

Massachusetts.-Stearns V. Allen (1903) 183 Mass. 404, 97 Am. St. Rep. 441, 67 N. E. 349.

New Hampshire.-Clark v. Clark (1913) 76 N. H. 551, 85 Atl. 758; Anderson v. French (1915) 77 N. H. 509, L.R.A.1916A, 660, 93 Atl. 1042, Ann. Cas. 1916B, 89. New Jersey. - N. J. Eq. Pennsylvania. (1879) 88 Pa. 346.

(1924)

Haver V. Herder -, 126 Atl. 661. Johnson's Appeal

Washington.--Re Masterson (1919) 108 Wash. 307, 183 Pac. 93; Re Waddell (1924) 131 Wash. 566, 230 Pac. 822.

Wyoming.-Re Caldwell (1920) 26 Wyo. 412, 186 Pac. 499.

II. As affected by form of statute.

a. In general.

In many jurisdictions the adoption statute in effect provides that the adopted child shall have all the rights of a child and heir of the adoptive parent. In construing these statutes, the courts are not agreed as to the right of an adopted child to inherit from a relative of the adoptive parent. This difference of opinion may be explained, in part, by variations in the language of the statutes. In part, however, it is due to the different views of the courts as to whether a strict or a liberal construction of the statute should be adopted.

It is the general rule that, under a statute placing an adopted child upon an equality with children by birth for the purpose of inheriting from the adopted parents, the adopted child for other purposes is unlike children by birth. Wallace v. Noland (1910) 246 Ill. 535, 138 Am. St. Rep. 247, 92 N. E. 956.

In Sunderland's Estate (1883) 60 Iowa, 732, 13 N. W. 655, denying the right of an adopted child to inherit through her adopted father his interest in his father's estate, the court

said that the adopted child inherits from the adopted father as a legitimate child would, in the same manner and to the same extent, but the statute does not say that she "is the heir or entitled to inherit from [the grandparent], or that she shall or can inherit a part of his estate through [the adoptive parent]. Whatever property the latter owned at his death [the adopted child] can inherit, but it does not follow that she can inherit property that never belonged to her adopted parent."

In Phillips v. McConica (1898) 59 Ohio St. 1, 69 Am. St. Rep. 753, 51 N. E. 445, referring to the provision of the statute of that state that the adopted child shall be to all intents and purposes the child and legal heir of the person so adopting him or her, entitled to all the rights and privileges, and subject to all the obligations, of a child of such person begotten in lawful wedlock, the court said that this is far from providing that such adopted child shall be the issue of the adopter, and of his blood, and of the blood of his ancestors. So, in Quigley v. Mitchell (1884) 41 Ohio St. 375, holding that an adopted child cannot inherit the intestate property of the ancestor of one of the adoptive parents, the court said that the statutes of Ohio, as between the adoptive parent and the adopted child, bestowed upon the latter all the rights and privileges of a child of the former begotten in lawful wedlock, but did not make the adopted child of the blood of the adoptive parent's father.

Barnhizel v. Ferrell (1874) 47 Ind. 335, denies the right of an adopted child to inherit from or through a child of the adoptive parents by birth, under an adoption statute which provides that the adopted child shall take the name in which it is adopted, and be entitled to and receive all the rights and interests in the estate of the adoptive parents, by descent or otherwise, that such child would do if the natural heir of such adoptive father or mother.

In Merritt v. Morton (1911) 143 Ky. 133, 33 L.R.A. (N.S.) 139, 136 S. W. 133, where an adopted child was de

nied the right to inherit any portion of the lineal ancestor's estate of her adoptive mother, the statute provided in effect that the adopted child shall become the heir at law of such person so adopting him or her, and be as capable of inheriting as though he or she were the child of said person.

Under a statute providing that an adopted child and a foster parent shall enjoy all the rights to be derived from the legal relation of parent and child, including the right of inheritance from each other, an adopted daughter is not an heir at law of the sister of the predeceased adopted parent. Kettell v. Baxter (1906) 50 Misc. 428, 100 N. Y. Supp. 529.

So, in Moore v. Moore (1862) 35 Vt. 98, under a special act of the legislature providing that a certain person should be the heir at law of another in as full and perfect manner as if she had been the latter's daughter, born in lawful wedlock, it was held that she was not entitled to share in the estate of a brother of such parent.

In the reported case (RE BRADLEY, ante, 1) an adopted child was denied the right to inherit from the brother of its adoptive parent under a statute making an adopted child, for purposes of inheritance and succession, the same as a legitimate child of the adoptive parents.

In Helms v. Elliott (1890) 89 Tenn. 446, 10 L.R.A. 535, 14 S. W. 930, it is held, under a statute providing in effect that an adopted child shall acquire all the rights of a child born to the parents, and shall have the capacity of inheriting or succeeding to the estate of the adoptive parent as heir or next of kin, that an adopted child is not entitled to any part of the estate of a brother of the adoptive parent, who dies intestate. The court said: "The law of adoption arbitrarily establishes for the adopted child the relation of heir and next of kin to the adopting parent; but it does not establish such a relation to the descendants of the adopting parent. As to them and their estate, the adopted child stands in no other relation than that existing before the act of adoption. The adopted child becomes a

beneficiary in the estate of the adopting parent by virtue of a particular provision of law, which has no application to the estate of any other person. The estates of other persons are unaffected by that particular provision, and are left to be administered under the general laws of the state." In Van Derlyn v. Mark (1904) 137 Mich. 149, 66 L.R.A. 437, 109 Am. St. Rep. 669, 100 N. W. 278, 4 Ann. Cas. 879, the court said that an adopted child can inherit only from its adoptive parents, under a statute providing that the child shall become and be an heir at law of the adopting parents the same as though in fact a child of such parents.

In Sunderland's Estate (1883) 60 Iowa, 732, an adopted child was denied the right to inherit from a grandparent by adoption, under a special act of the general assembly of Louisiana, which, after authorizing the adoption, contained a provision in effect that the adopted child should inherit "from" the adopting parents as if she were their legitimate child. The court emphasized the term "from" the adopting parents, pointing out, in this regard, that, if the intention had been to authorize the adopted child to inherit through the adoptive parent, there would have been a specific provision in the statute to that effect.

In Stout v. Cook (1910) 77 N. J. Eq. 153, 75 Atl. 583, it is held that, under the New Jersey statute providing that an adopted child shall be invested with every legal right, privilege, obligation, and relation in respect to education, maintenance, and the rights of inheritance to real estate or the distribution of personal estate on the death of the adoptive parent or parents, as if born to them in lawful wedlock, an adopted child inherits from the foster parents, but the adoption does not operate to create a capacity to take as child under the will of some other person. Reversed on other grounds in (1911) 79 N. J. Eq. 573, 81 Atl. 821.

In Burnett's Estate (1908) 219 Pa. 599, 69 Atl. 74, referring to a provision of the statute relative to adopted children, to the effect that such adopt

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