JONES v. BLANKENBURG

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District Court of Appeal, Fourth District, California.

JONES v. BLANKENBURG et al.

Civ. 2334

Decided: September 19, 1939

Gray, Cary, Ames & Driscoll, of San Diego, for appellant. Marie M. Herney and M. Luther Ward, Jr., both of San Diego, for respondents.

Plaintiff brought this action to establish his right to the property of the estate of Owen Jones, deceased. A general and special demurrer to the complaint was sustained by the Hon. L.N. Turrentine, who granted time in which to amend. No amended complaint having been filed, the formal judgment of dismissal was signed by the Hon. Lloyd E. Griffin, then a judge of the superior court of San Diego county, Judge Turrentine being then absent from San Diego.

The complaint alleges that Owen Jones, a resident of San Diego county, died there on January 6, 1937, leaving his last will which was executed the day before; that the will was admitted to probate and Albert F. Blankenburg was appointed and qualified as executor; that plaintiff was born in Nebraska on March 5, 1897, the son of Elijah Conklin; that plaintiff's mother died on March 6, 1897; that “on or about the 20th day of April, 1901, in the County of Lincoln, State of Nebraska, the plaintiff's father, Elijah Conklin, made and entered into an oral agreement with Owen Jones, the above-named decedent, wherein and whereby the said Elijah Conklin promised to surrender the plaintiff to the custody and control of the said Owen Jones, and promised to relinquish all rights which he, the said Elijah Conklin, might have to the custody and control of the said plaintiff, and wherein and whereby the said Owen Jones, in consideration of the aforesaid promises of Elijah Conklin, and the performance of them, agreed to adopt the said plaintiff and agreed further that said plaintiff would have and receive all of the property of which the said Owen Jones should be the owner at the time of his death.”

The complaint further alleges that on April 20, 1901, pursuant to and in performance of the foregoing agreement, Elijah Conklin gave and surrendered plaintiff to Owen Jones and relinquished all his rights of custody and control of plaintiff; that Owen Jones and Bridget Jones, his wife, duly and legally adopted plaintiff as their son through proceedings had in the county court of Lincoln county, Nebraska; that in those proceedings plaintiff was given the name of John Conklin Jones, by which he has been known ever since; that plaintiff was taken into the family of Owen and Bridget Jones as their son and was thereafter treated by them and conducted himself as such; that the estate of Owen Jones is of the value of about $9,444.75; that the will of Owen Jones left plaintiff $1 instead of all his property.

It is evident that the general demurrer was sustained because the complaint was deemed insufficient because it contained no allegation to the effect that the petition for adoption, the consent to adoption and the decree of adoption set forth the terms and conditions of the special contract between Owen Jones and Elijah Conklin, providing that plaintiff would inherit all of the estate of Owen Jones. See Nebraska Stats.1897, chap. 94, § 1 et seq.; Compiled Stats. of Nebraska, 1922, §§ 1568, 1569, 1571, 1572.

These statutes were considered and construed in In re Enyart's Estate, 116 Neb. 450, 218 N.W. 89, 90. The primary question there involved was whether or not the natural father of Logan Enyart, deceased, was his heir at law after the adoption of Logan Enyart by Katherine Enyart with the consent of her husband. The court said:

“Our statute relating to adoption of minor children provides that an adult person, under certain conditions, may adopt a minor child. If the parents of such child are living, their consent in writing must be obtained, and, if the adopting person is married and living with his or her spouse, the consent of such spouse to the adoption must be also obtained. The statute contemplates that the person desiring to adopt shall file in the county court a petition, and therein set forth the terms and conditions on which the adoption is desired to be made. Before a decree, the parents or persons having legal control of such minor child are required to file a written consent, wherein they voluntarily relinquish all right to the custody of and power and control over said minor child and all claim and interest in and to his or her services and wages. Thereafter, a time is appointed by the county court for a hearing, and a notice must be given of the time and place thereof; and, if upon such hearing the court shall find that the adoption is for the best interests of said minor child, a decree shall be entered in accordance with the terms and conditions of said petition and consent. It is further provided by section 1572, Comp.St.1922:

“ ‘Unless the terms and conditions in such consent and petition otherwise provide, the person or persons adopting, and the child adopted shall after adoption, sustain toward each other the usual relation [and the adopted child shall have bestowed upon him or her equal rights, privileges and immunities of children born in lawful wedlock], of parent and child, and shall have all the right and be subject to all the duties of that relation, and the parents of such adopted child shall, thereafter stand relieved of all parental duties toward, and all responsibility for, said minor child and shall have no right over it.’

“The brackets do not appear in the statute. The reason for the interpolation will appear later.

“At common law, adoption of heirs or children was unknown. For some time after the enactment of adoption statutes the courts were inclined to their strict construction because they were said to be in derogation of the common law. Later, the humanitarian aspects and purposes of such statutes were recognized, and the courts generally evinced a disposition to give them a liberal rather than a strict construction. This court has adopted the rule of liberal construction. Ferguson v. Herr, 64 Neb. [649] 659, 90 N.W. 625, 94 N.W. 542. It is evident that our statute contemplates two kinds of adoption; one is restricted by the terms and conditions contained in the petition for and consent to the adoption; and the other is an unrestricted adoption. If no terms and conditions are contained in the petition and consent, the adoption is without restriction and is subject to and governed by the terms of said section 1572.

“The petition for adoption, involved in this action, contained no restrictions or conditions relative to the rights and privileges of the adopting parent or adopted child. The first 12 words of section 1572, Comp.St.1922, therefore have no application to the facts herein involved. The decree in the adoption proceedings found that, in the manner required by law, the natural parents of Logan E. Koser had voluntarily relinquished all right to the custody of and control over said minor and to his services and wages, and that it was for the best interests of said minor child that he should be so adopted. Following the findings, the court decreed that:

“ ‘The right to the custody of and power and control over said Logan E. Koser and its services and wages by its father and mother, George S. Koser and Hazel K. Koser, shall and do cease and determine from this date, and that said Logan E. Koser shall be the adopted child of said Katherine Enyart upon the conditions of the sworn statements made herein, and shall take the surname of said Katherine Enyart, and be known as Logan Enyart, and be subject to her exclusive custody and control, and shall possess all the rights, privileges and immunities of children born in lawful wedlock.’

“Neither the petition, consent nor decree of adoption contains any restriction or conditions limiting the right of the adopted child to inherit from the adoptive parent, nor the right of the adoptive parent to inherit from the adopted child. The respective rights of the adopted child and the adoptive parent to inherit, one from the other, if they exist, must be found by virtue of the provisions of section 1572, Comp.St.1922.

“From a careful examination of section 1572, supra, it seems clear that what the Legislature meant to say, concerning the mutual relations of the adoptive parents and the adopted child, may be better understood by omitting the words included in the brackets, as set out above. It would then read:

“ ‘The person or persons adopting, and the child adopted shall after adoption, sustain toward each other the usual relation of parent and child, and shall have all the right and be subject to all the duties of that relation.’

“This statute therefore defines and fixes the relationship existing between the adoptive parent and the adopted child. Pursuant to this statute, the decree of adoption created, in law, between the adoptive parent and adopted child, the relation of parent and child, and further provided that after adoption they shall have all the right and be subject to all the duties of that relation. Under our statute of descent, as it then existed and now exists, one of the rights of the child was to inherit from its parents, if they died intestate. It was likewise one of the rights of the parent to inherit from the child, if the latter died intestate, leaving surviving no widow or issue.

“The right of inheritance is created by statute. It is within the power of the Legislature to determine what persons or whether any person shall inherit from one who dies intestate, and to determine what proportion of the decedent's estate shall descend to any particular person or class of persons. The Legislature creates and may take away the right to inherit. It is within the power of the Legislature to confer the right of inheritance upon adopted children or adoptive parents, as well as upon natural children and parents. If there are no restrictions, limitations or conditions in the adoption, our statute of adoption creates the legal relation of parent and child and gives to the adoptive parent and the adopted child all of the rights that pertain to that relation by virtue of the statute of descent.”

The case of In re Grinnell's Estate, 117 Neb. 332, 220 N.W. 583, 586, is persuasive and the application of the principles it announces to the facts of the instant case leads us to the conclusion that the judgment in the instant case must be affirmed.

The following facts appear in that opinion: Jennie Grinnell and Albert Grinnell were husband and wife. Albert died on March 9, 1924, and Jennie died intestate on May 19, 1925. George Wixon was the natural son of Jennie Grinnell by a former marriage. On September 20, 1884, Jennie and Albert had regularly adopted John B. Grinnell and Joseph B. Redfield, who were taken into their home and in every particular treated as their natural children. The petition for adoption, the consent to adoption and the decree of adoption contained no special terms and conditions concerning the rights of the adopted children to inherit from their adoptive parents.

The adoption statutes of Nebraska in effect in 1884 (Gen.Stats.1873, chap. 57, §§ 796 to 801) provided in effect that the petition for adoption, the consent to adoption and the decree of adoption must show affirmatively an intention to permit the adopted child to inherit from the adoptive parents before any such right would be created.

The supreme court of Nebraska was of the opinion that the statutes of adoption of 1897, supra, were amendatory of the statutes of adoption of 1873, supra; that as both the right of adoption and the right of inheritance were creatures of statute the right of inheritance could be changed by statute at any time before the death of the ancestor; that therefore the amendments of 1897 were applicable to the case and determined the rights of inheritance of John B. Grinnell and Joseph B. Redfield.

After quoting at length from In re Enyart's Estate, supra, the court stated its conclusions as follows: “We are of the opinion that the act of 1897, providing for the adoption of minor children, of which section 1572, Comp.St.1922, is a part, preserved the adoption of children theretofore adopted and gave the right to inherit from their adoptive parents to such adopted children as were not precluded from inheritance by the terms and conditions of the proceedings by which they were adopted.”

The instant case presents a situation exactly converse to that decided in In re Grinnell's Estate, supra. There the right to inherit as natural children was upheld because the petition for adoption, the consent to adoption and the decree of adoption failed to set forth any special terms and conditions concerning their rights of inheritance from their adoptive parents. In the instant case the trial court refused to recognize a prior contract giving the adopted child a special right of inheritance from the adoptive parent because the petition for adoption, the consent to adoption and decree of adoption were silent on the question of the contract.

It is clear from the two cases from which we have quoted that in the absence of any provisions setting forth special terms and conditions of inheritance in the three documents, concerning the right of the adopted child to inherit from the adoptive parent, such child has the right of inheritance of a natural child and no more. It follows that as the petition for adoption, the consent to adoption and the decree of adoption of plaintiff failed to refer to and did not include any of the terms or conditions of the contract between Owen Jones and Elijah Conklin giving plaintiff the right to inherit all of the property of Owen Jones, we can give no force or effect to any of the terms of that contract. Plaintiff has only the right of inheritance from Owen Jones that he would have had had he been his natural child. See, also, Ferguson v. Herr, 64 Neb. 649, 90 N.W. 625, 94 N.W. 542. In both California and Nebraska a parent may by his will disinherit his natural child. Section 20, Prob.Code; Estate of Hayne, 165 Cal. 568, 133 P. 277, Ann.Cas.1915A, 926; Pohle v. Nelson, 108 Neb. 220, 187 N.W. 772.

It is settled in Nebraska that proceedings in adoption are judicial in their nature. In speaking on a question similar to the one before us, the supreme court of Mississippi said: “In our opinion the rights of the appellees are governed, controlled, and limited by the petition and decree, and that all antecedent agreements were merged in the agreement therein. If the articles of adoption did not contain the real agreements, it would have been necessary for the minors to have brought a bill in the nature of a bill of review within 2 years after attaining their majority, and made a direct attack upon the adoption proceedings.” McLean v. McAllum, 131 Miss. 234, 95 So. 309, 311.

The judgment is affirmed.

MARKS, Justice.

I concur: BARNARD, P.J. GRIFFIN, J., being disqualified, does not participate herein.