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Descent, § 1 sien."

meaning of "succes

5. "Succession" is a proper term to

denote the devolution of title to prop

erty from an ancestor to his immediate 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, for appellant:

The adoption of appellant created a status for the purpose of inheritance or succession between him and James W. Bradley, deceased.

Vidal v. Commagere, 13 La. Ann. 516; Clark v. Clark, 76 N. H. 551, 85 Atl. 758; Sewall v. Roberts, 115 Mass. 262; Burrage v. Briggs, 120 Mass. 103; Glascott v. Bragg, 111 Wis. 610, 56 L.R.A. 258, 87 N. W. 853; Lichter v. Thiers, 139 Wis. 481, 121 N. W. 153; Tirrell v. Bacon, 3 Fed. 62; Stearns v. Allen, 183 Mass. 404, 97 Am. St. Rep. 441, 67 N. E. 349; Flannigan V. Howard, 200 Ill. 396, 59 L.R.A. 665, 93 Am. St. Rep. 201, 65 N. E. 782; Hole v. Robbins, 53 Wis. 521, 10 N. W. 617; Parsons v. Parsons, 101 Wis. 76, 70 Am. St. Rep. 894, 77 N. W. 147; Sandon v. Sandon, 123 Wis. 603, 101 N. W. 1089; Keegan v. Geraghty, 101 Ill. 26; Van Derlyn v. Mack, 137 Mich. 146, 66 L.R.A. 437, 109 Am. St. Rep. 669, 100 N. W. 278, 4 Ann. Cas. 879; Anderson v. French, 77 N. H. 509, L.R.A.1916A, 660, 93 Atl. 1042, Ann. Cas. 1916B, 89; Humphries v. Davis, 100 Ind. 274, 50 Am. Rep. 788; Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321; Markover v. Krauss, 132 Ind. 294, 17 L.R.A. 806, 31 N. E. 1047; Bray v. Miles, 23 Ind. App. 432, 54 N. E. 446, 55 N. E. 510; Hartwell v. Tefft, 19 R. I. 644, 34 L.R.A. 500, 35 Atl. 882; Re Truman, 27 R. I. 209, 61 Atl. 598; Re Olney, 27 R. I. 495, 63 Atl. 956; Rhode Island Hospital Trust Co. v. Humphrey, 32 R. I. 318, 79 Atl. 829; Warren v. Prescott, 84 Me. 483, 17 L.R.A. 435, 30 Am. St. Rep. 370, 24 Atl. 948; Power v. Hafley, 85 Ky. 671, 4 S. W. 683; Atchison v. Atchison, 89 Ky. 488, 12 S. W. 942; Hilpire v. Claude, 109 Iowa, 159, 46 L.R.A. 171, 77 Am. St. Rep. 524, 80 N. W. 332; Shick v. Howe, 137 Iowa, 249, 14 L.R.A. (N.S.) 980, 114 N. W. 916; Re Walworth (Batchelder v. Walworth) 85 Vt. 322, 37 L.R.A. (N.S.) 849, 82 Atl. 7, Ann. Cas. 1914C, 1223; Re Book, 90 N. J. Eq. 549, 107 Atl. 435; Riley v. Day, 88 Kan. 503, 44 L.R.A.

(N.S.) 296, 129 Pac. 524; United States Trust Co. v. Hoyt, 115 Misc. 663, 190 N. Y. Supp. 166, affirmed in 223 N. Y. 616, 119 N. E. 1083; Re Cadwell, 26 Wyo. 412, 186 Pac. 499; Denton v. Miller, 110 Kan. 292, 203 Pac. 693.

If appellant has an interest in the estate, he is entitled to an impartial administration.

Speiser v. Merchants' Exch. Bank, 110 Wis.,506, 86 N. W. 243; Bartelt v. Smith, 145 Wis. 37, 129 N. W. 782, Ann. Cas. 1912A, 1195; Gary, Probate Law, § 632; 3 Woerner, Administration, p. 1781; 24 C. J. 106; Zimmer v. Saier, 155 Mich. 388, 130 Am. St. Rep. 575, 119 N. W. 433.

Messrs. Miller, Mack, & Fairchild, for respondent:

An adopted child does not take from kindred of adoptive parents.

Hole v. Robbins, 53 Wis. 514, 10 N. W. 617; Lichter v. Thiers, 139 Wis. 481, 121 N. W. 153; Becker v. Chester, 115 Wis. 90, 91 N. W. 87, 650; Chase v. American Cartage Co. 176 Wis. 235, 186 N. W. 598.

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The Wisconsin statutes follow the common-law principles of blood relationship.

Cleaver v. Cleaver, 39 Wis. 96, 20 Am. Rep. 30; Sander's Estate, 126 Wis. 660, 105 N. W. 1064, 5 Ann. Cas. 508; Hole v. Robbins, 53 Wis. 514, 10 N. W. 617; Lichter v. Thiers, 139 Wis. 481, 121 N. W. 153; Brown v. Baraboo, 90 Wis. 151, 30 L.R.A. 320, 62 N. W. 921; Perkins v. Simonds, 28 Wis. 90; Campbell v. Campbell, 37 Wis. 213.

If this court were not already committed to the rule that an adopted child does not take from kindred of adoptive parents, the proper construction of the statute would require such holding.

Cleaver v. Cleaver, 39 Wis. 96, 20 Am. Rep. 30; Nunnemacher v. State, 129 Wis. 190, 9 L.R.A. (N.S.) 121, 108 N. W. 627, 9 Ann. Cas. 711; United States v. Perkins, 163 U. S. 625, 41 L. ed. 287, 16 Sup. Ct. Rep. 1073; Hole v. Robbins, 53 Wis. 514, 10 N. W. 617;

(185 Wis. 393, 201 N. W. 973.) Lichter v. Thiers, 139 Wis. 481, 121 N. W. 153.

The statute, while receiving a liberal construction to effectuate its purpose, should receive a strict construction against adding to its purpose, which purpose is plainly limited to a change of status as between the parent and the child.

Hockaday v. Lynn, 200 Mo. 456, 8 L.R.A. (N.S.) 117, 118 Am. St. Rep. 672, 98 S. W. 585, 9 Ann. Cas. 775; Boaz v. Swinney, 79 Kan. 332, 99 Pac. 621; Keegan v. Geraghty, 101 Ill. 26; Parsons v. Parsons, 101 Wis. 76, 70 Am. St. Rep. 894, 77 N. W. 147; Glascott v. Bragg, 111 Wis. 605, 56 L.R.A. 258, 87 N. W. 853.

It is uniformly held under similar statutes that adoption does not make a child heir to collateral kindred of an adoptive parent.

1 R. C. L. 621; 1 C. J. § 131, p. 1401; Spencer, Dom. Rel. pp. 442, 423; 3 Thomp. Real Prop. § 2347, pp. 398, 399; 1 Woerner, Administration, p. 204; Keegan v. Geraghty, 101 Ill. 26; Wallace v. Noland, 246 Ill. 535, 138 Am. St. Rep. 247, 92 N. E. 956; Hockaday v. Lynn, supra;

Helms v. Elliott, 89 Tenn. 446, 10 L.R.A. 535, 14 S. W. 930; Phillips v. McConica, 59 Ohio St. 1, 69 Am. St. Rep. 753, 51 N. E. 445; Van Derlyn v. Mack, 137 Mich. 146, 66 L.R.A. 537, 109 Am. St. Rep. 669, 100 N. W. 278, 4 Ann. Cas. 879; Merritt v. Morton, 143 Ky. 133, 33 L.R.A. (N.S.) 139, 136 S. W. 133; Burnett's Estate, 219 Pa. 599, 69 Atl. 74; Batcheller-Durkee v. Batcheller, 39 R. I. 45, L.R.A.1916E, 545, 97 Atl. 378.

The next of kin is entitled to administration.

Welsh v. Manwaring, 120 Wis. 377, 98 N. W. 214; Brunson v. Burnett, 2 Pinney (Wis.) 185; Steinberg v. Saltzman, 130 Wis. 419, 110 N. W. 198; Speiser v. Merchants' Exch. Bank, 110 Wis. 506, 86 N. W. 243; Bartelt v. Smith, 145 Wis. 37, 129 N. W. 782, Ann. Cas. 1912A, 1195.

Owen, J., delivered the opinion of of the court:

James W. Bradley departed this life February 21, 1924, intestate, leaving an estate in excess of $4,000,000. He never married, and at the time of his death his parents and his brothers, William H. and

Edward Bradley, were dead, William H. Bradley leaving an adopted son, William T. Bradley, the appellant, and Edward Bradley, leaving a surviving daughter, Edna B. Tweedy, respondent herein.

Edna B. Tweedy applied to the county court of Milwaukee county for administration of the estate of said James W. Bradley, praying that letters of administration issue to the First Wisconsin Trust Company and Arthur W. Fairchild. Thereupon the appellant, William T. Bradley, objected to the appointment of Arthur W. Fairchild as one of the administrators, and made application to the county court to take proofs of heirship, and for an order finding him next of kin to said James W. Bradley, deceased. Upon said hearing the court made findings of fact and conclusions of law, and adjudged Edna B. Tweedy to be the sole heir at law of said James W. Bradley, deceased, and that the status of appellant as adopted son of William H. Bradley did not constitute him next of kin or an heir at law of said James W. Bradley, deceased, and issued letters of administration to the First Wisconsin Trust Company and Arthur W. Fairchild. From this judgment William T. Bradley brings this appeal.

Reduced to its lowest terms, the question is whether William T. Bradley is an heir at law of the deceased, James W. Bradley, by reason of his adoption as a son by William H. Bradley. It is the contention of appellant that this relation results from the provisions of § 4024, Stat., which provides that "a child so adopted shall be deemed, for the purposes of inheritance and succession by such child, custody of the person and right to obedience by such parents by adoption, and all other legal consequences and incidents of the natural relation of parents and children, the same to all intents and purposes as if the child had been born in lawful wedlock of such parents by adoption, excepting that such child shall not be capable of taking property expressly limited

to the heirs of the body of such parents."

From time immemorial it has been held held by English-speaking peoples that the property of intestate deceased persons should descend to kindred of the blood. This is not a conclusion arrived at by application of principles of logic, but it is a tene of justice, intuitively and generally recognized, and crystallized into forms of law by common consent. It formed the basis for the principles of descent obtaining at common law, and finds expression in the statutes of descent enacted in the various states of the Union. It goes without saying that any statute which interferes with that principle, or interrupts the natural course of descent of property,

Statutesdescent-strict construction.

should be strictly construed, not only because it contravenes the common law, but because it is repugnant to fixed notions of natural justice; and this is especially true in this state, where it is held that the right to inherit property is a natural right, which the legislature cannot destroy. Nunnemacher v. State, 129 Wis. 190, 9 L.R.A. (N.S.) 121, 108 N. W. 627, 9 Ann. Cas. 711. This spirit pervaded the opinion of this court in Hole v. Robbins, 53 Wis. 514, 10 N. W. 617, where it was held that the natural, and not the adoptive, parents of an adopted son, inherited his property upon his decease, and the opinion of this court in Lichter v. Thiers, 139 Wis. 481, 121 N. W. 153, plainly indicates a similar disposition on the part of the court as then constituted, although we do not think that case is decisive of the question here presented, as contended by the respondent.

This court has held that adoption statutes, as well as matters of procedure leading up to adoption, should be liberally construed to

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coming to it as a result of the adoption. Parsons v. Parsons, 101 Wis. 76, 70 Am. St. Rep. 894, 77 N. W. 147; Re Bearby, Wis., 200 N. W. 686. But it has never been held by this court, nor is it the prevailing judicial view of the courts of this country, that an adoption statute should be liberally construed to divert the descent of property left by those who are not parties to the adoption proceedings from its nattural course of descent.

There are many reasons why an adoption statute should be strictly construed to enforce the duties and obligations voluntarily assumed by adoptive parents, and to protect the adopted child in those rights and privileges which the law intends to secure to him as the result of the adoption. These reasons, however, do not apply when the rights of those who were not parties to the adoption proceedings are involved. The status resulting from adoption proceedings is not a natural one. It is a civil or contractual status. One may have the right to assume the status of a father to a stranger of the blood, but he has no moral right to impose upon his brother the status of an uncle to his adopted son. As was said in Warren v. Prescott, 84 Me. 483, 17 L.R.A. 439, 30 Am. St. Rep. 370, 24 Atl. 948: "By adoption, the adopters can make for themselves an heir, but they cannot thus make one for their kindred."

In Merritt v. Morton, 143 Ky. 133, 33 L.R.A. (N.S.) 139, 136 S. W. 133, it was said: "The act of the foster parents in adopting the child is a contract into which they entered with those having the lawful custody of the child, an agreement personal to themselves, and while they have a perfect right to bind or obligate themselves to make the child their heir, they are powerless to extend this right on his part to inherit from others. All inheritance laws are based or built upon natural ties of blood relationship, whereas adopted child's right to inherit rests upon a contract, and hence only

an

(185 Wis. 393, 201 N. W. 978.)

those parties to the contract are bound by it."

And, in construing the adoption statute of Michigan, the court of that state said: "We see nothing in it to lead to the belief that it was the legislative intention to permit one to adopt heirs for third persons." Van Derlyn v. Mack, 137 Mich. 146, 66 L.R.A. 437, 109 Am. St. Rep. 669, 100 N. W. 278, 4 Ann. Cas. 879.

Of course, what was said by these courts was said with reference to the statutory provisions on the subject of adoption of their respective states. These authorities do not go to the extent of denying to the legislature the power of prescribing a course of descent which will take property of deceased persons out of the current of their blood. That is a question that was not before any of the courts quoted, a question which is not here, and upon which we very carefully refrain from expressing any opinion, in view of our decision in Nunnemacher v. State, 129 Wis. 190, 9 L.R.A. (N.S.) 121, 108 N. W. 627, 9 Ann. Cas. 711. We are now emphasizing the fact that to accomplish such purpose the legislature should use explicit and unmistakable language. The consequences which would result from such a law are very well illustrated by this very situation. The respondent herein is related by ties of blood to the deceased. The appellant is not related to him in any manner-neither by ties of blood nor by contractual relations. If his contention is to be maintained, he, a stranger to the blood of the deceased, bearing to him not even the duty of kindred regard, will divide with the respondent his estate.

Descent-statute to take property out of blood of decedent.

Furthermore, but for the existence of the respondent, he would succeed to deceased's entire estate, thus diverting it entirely from his blood relatives, and cutting off deceased's cousins, and all his other blood relatives, from any participation therein. This result is entirely repugnant to the notions of

natural justice which are embraced as by common consent by the AngloSaxon race.

Text-writers generally lay down. the rule that under statutes of adoption which declare the adopted child to have all the rights, including that of inheritance, of a child born in lawful wedlock, the adopted child is not constituted an heir of the collateral kindred of the adoptive parents. 1 R. C. L. p. 621; 1 C. J. p. 401; Spencer, Dom. Rel. 422; 3 Thomp. Real Prop. pp. 398, 399; 1 Woerner, Administration, p. 204. This has been held in many cases, among which we cite the following: Hockaday v. Lynn, 200 Mo. 456, 8 L.R.A. (N.S.) 117, 118 Am. St. Rep. 672, 98 S. W. 585, 9 Ann. Cas. 775; Batcheller-Durkee v. Batcheller, 39 R. I. 45, L.R.A.1916E, 545, 97 Atl. 378; Van Derlyn v. Mack, 137 Mich. 146, 66 L.R.A. 437, 109 Am. St. Rep. 669, 100 N. W. 278, 4 Ann. Cas. 879; Helms v. Elliott, 89 Tenn. 446, 10 L.R.A. 535, 14 S. W. 930; Moore v. Moore, 35 Vt. 98. This list of citations might be greatly extended, but to no good purpose. We commend the student of the subject to Hockaday v. Lynn, supra, and BatchellerDurkee v. Batcheller, 39 R. I. 45, L.R.A.1916E, 545, 97 Atl. 378, for a philosophical discussion of the subject, as well as for very satisfactory reviews of the authorities of this country relating thereto.

The industry of appellant's counsel has called to our attention but three jurisdictions holding to the contrary: Re Cadwell, 26 Wyo. 412, 186 Pac. 499, Shick v. Howe, 137 Iowa, 249, 14 L.R.A. (N.S.) 980, 114 N. W. 916, Riley v. Day, 88 Kan. 503, 44 L.R.A. (N.S.) 296, 129 Pac. 524, and Denton v. Miller, 110 Kan. 292, 203 Pac. 693. In these cases, however, it is conceded that their conclusions are not sustained by the weight of judicial authority in this country. We fully agree with the Missouri court that "it may be laid down as a general conclusion that, while the statute of adoption must be read into the statute of dower and that of descent and distribution,

it is with this singularity, always to be observed, viz., that the adopted child is so let in only for the purpose of preserving in full its right of inheritance from its adoptive parent, and the door to inheritance is shut, and its bolt shot, at that precise point." Hockaday v. Lynn, 8 L.R.A. (N.S.) 121, supra.

This conclusion is not out of harmony with anything that has been said by this court upon the subject. We think that the reasoning in Hole v. Robbins, 53 Wis. 514, 10 N. W. 617, leads naturally to this conclusion that it is in harmony with everything said in Lichter v. Thiers, 139. Wis. 481, 121 N. W. 153, and in no way affects the decisions of this court in Glascott v. Bragg, 111 Wis. 605, 56 L.R.A. 258, 87 N. W. 853, and Sandon v. Sandon, 123 Wis. 603, 101 N. W. 1089. The two latter cases held that the adoption of a child after the making of a will operated as a revocation of the will, the same as marriage and the birth of issue. We agree that that is the necessary result of the voluntary adoption of a child, because the duties and obligations are the same to the adopted child as to a child born in lawful wedlock. That which we deny here is that the consequences voluntarily assumed by the adoptive parents may be visited upon those who were not parties to the adoption proceedings, and had no voice therein.

Thus far our discussion relates to adoption statutes in general, and broad principles which, we think, should be borne in mind in the construction of such statutes. It now remains for us to consider certain specific provisions of our adoption statute already quoted, from which appellant reads a legislative intent to make the adopted child an heir of the kindred of the adoptive parents. Section 4024 provides, in part, that "a child so adopted shall be deemed, for the purposes of inheritance and succession by such child, the same to all intents and purposes as if the child had been born in lawful wedlock of

such parents by adoption, excepting that such child shall not be capable of taking property expressly limited to the heirs of the body of such parents."

Section 2275, Stat., provides: "Inheritance, or succession by right of representation, takes place when the descendants of any deceased heir . take the same share or right in the estate of another person that their parent would have taken if living."

Counsel for appellant quote this statutory provision, and then, speaking of the right of succession found in § 4024, say: "This right of succession can relate only to inheritance from others than the adoptive parent, and refers both to lineal and collateral inheritance. There is no such thing as succession between parent and child. Succession only occurs when the property of a third party is to be taken by a person representing, in another degree, the heir who would take if living."

of

right of

adopted child

to inherit from tive of parent.

collateral rela

This is an erroneous view of the meaning of the term "succession." That which is defined by § 2275 is succession by right representation. Of course, succession by right of representation occurs only when the property of a deceased person is to be taken by a person representing in another degree the heir who would take if living. "Succession" is a proper term to denote the devolution of title to property from an

ancestor to his im- meaning of "succession." mediate heir. Thus,

in 18 C. J. at p. 803, it is said: ""Succession' is a word of technical meaning, denoting the devolution of title to the property under the laws of descent and distribution." And again on the same page it is said: "Although, as has been seen, 'succession' is a broader term than 'descent,' on account of its applying to personal as well as real property, the two words are often used synonymously. Indeed, 'descent' is sometimes defined in the terms of, or conjunctively with, 'hereditary

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