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District Court of Appeal, Second District, Division 1, California.


Civ. 20018.

Decided: June 30, 1954

Charles C. Morrison, West Los Angeles, for appellant. Richard McLeod, Los Angeles, for respondent.

This is an appeal from an order revoking letters of administration theretofore issued to appellant and granting letters of administration to respondent. The matter was submitted to the probate court upon a written stipulation of facts.

While it appears from the affidavit of appellant that she knows nothing concerning the facts so stipulated, except what is shown by the certificates of birth, death and adoption filed as exhibits and made a part of the record, and the said exhibits are not entirely convincing as to the relationship between decedent and respondent and others, we shall assume the facts to be as stipulated by the parties to this appeal.

The pertinent facts so stipulated are:

George A. Calhoun, the decedent, was born January 8, 1913, in the California State Hospital, at Patton, California, to William Fortuna and Anna Mulvey Fortuna. He was adopted under the laws of California, by Ezra J. Calhoun and his wife, Victoria Calhoun, on April 3, 1917, with the consent of his only living parent, William Fortuna. He was the youngest of four children born to his natural parents. According to the stipulation, the others were:

Leona Mary Fortna, born October 10, 1906, for whom neither birth nor death certificate is in the record, but who is stipulated to have been adopted by persons unknown to the parties hereto before the birth of decedent, and to have died in August, 1936, ‘leaving surviving her as issue of her body four children whose true names and whereabouts are as yet unknown to the parties hereto’.

Ruth Fortney, born April 26, 1908, in Florence, California, to William Fortney and his wife, Annie A. Mulvey Fortney, adopted prior to decedent's birth by persons unknown to the parties hereto, and now known as Ruth Rice, residing in Oakland, California.

James William Fortney, born November 15, 1911, at Florence, California, to William Fortney and his wife, Annie Mulvey Fortney, adopted July 30, 1913, by Walter W. Pettit and Cora M. Pettit. He is Walter William Pettit, the respondent herein.

Decedent's adoptive mother, Victoria Calhoun, died intestate on or about October 26, 1948, leaving as her only heirs at law, Daisy Oreb, her natural daughter, who is appellant herein, and George A. Calhoun, her adopted son. Decedent's other parents, adoptive and natural, had predeceased said Victoria Calhoun.

George A. Calhoun died intestate on or about July 15, 1952, in Ventura County, California. He left neither spouse, child, issue of a deceased child, father (either natural or adoptive), or mother (either natural or adoptive). He left estate in California consisting of cash distributed to him from the estate of his adoptive mother and a distributable interest in said estate, then in probate in Los Angeles County, appraised at $51,644.81.

From these facts, the court below concluded that respondent, Walter William Pettit, ‘is the brother of said decedent, and by reason of such relationship has a right to letters of administration prior to that of the said Daisy Oreb, the administratrix aforesaid’, and accordingly revoked the letters of administration issued to appellant and ordered that letters of administration be issued to respondent. From that order, this appeal is taken.

Relatives of a decedent have a prior right to letters of administration only when they are entitled to succeed to the estate, or some portion thereof. Probate Code, section 422. Appellant and respondent agree that, under the stipulated facts, decedent's estate goes ‘in equal shares to his brothers and sisters and to the descendants of deceased brothers and sisters by right of representation’. Probate Code, section 225. They further agree that, if either respondent or appellant is entited to letters of administration, it is by reason of the fact that he or she is a ‘brother’ or ‘sister’ referred to in said section 225 of the Probate Code.

Appellant urges that she is the only ‘brother or sister’ of decedent and that she is entitled to succeed to his entire estate, by reason of the fact that she is the natural child of his adoptive parents, grew up in the same home, was supported by, and inherited from, the same parents as decedent.

Respondent contends that only ‘blood brothers and sisters' are entitled to succeed to decedent's estate; that appellant is entitled to nothing; and that respondent and his natural sisters are the decedent's ‘brothers and sisters' referred to in said Section 225, despite the fact that no two of the four children ever knew each other, and that each of them had different adoptive parents.

Our function, therefore, is to give expression to the intent of the legislature as reflected in the statutes governing the question presented to us.

Who are the ‘brothers and sisters' entitled to succeed to the estate of the adopted person under the provisions of said section 225? The true meaning of section 225 cannot be ascertained by reading it alone. It must be considered as a part of our law of succession, as affected by the statutes concerning adoption. From a consideration of various legislative enactments on these subjects, including the provisions respecting safeguards placed around adopted children to the ends that they are placed only in good homes, that consent and release by natural parents is duly given, that hearings and records regarding adoption are private, that new birth certificates are issued showing as parents the adoptive parents (with no mention of adoption), and that all other records concerning birth, release and adoption of the child are sealed, it would seem to have been the intent of the legislature that all ties by blood be replaced so far as possible by the adoption, and that each adopted child be given as new home and family to take the place of the broken home and family from which he has been released.

This court is not unmindful of the dicta in the early decisions to the effect that the relationship of the adopted child is changed in no way except by placing the adopting parent in the place of the natural parent and ‘the door to inheritance is shut, and its bolt shot, at that precise point’, Hockaday v. Lynn, 200 Mo. 456, 98 S.W. 585, 8 L.R.A.,N.S., 117, quoted in many decisions including, In re Estate of Jones, 3 Cal.App.2d 395, 39 P.2d 847. However, both the social sciences and the laws relating to adoptions have progressed considerably in recent years. The court must take judicial notice of the prevalence of broken homes, from which whole families of children are released to some agency or agencies for adoption, the children in most instances being too young to remember their natural parents or brothers or sisters, or any other natural relative, the natural parents never seeing the adoptive parents, and the adoptive parents, in many instances never knowing anything about the natural family of the child adopted. The court takes notice of the fact that thousands of adopted children, with their corrected birth certificates, may never know that they are not the natural children of their adoptive parents. The trend, both legislative and social, is toward the substitution of the adoptive family for the natural in every respect. Indeed, from the facts herein stipulated, a family of four children was adopted into four different homes between 1906 and 1917 and none ever saw another until after decedent, while in the State Hospital at Camarillo, inherited from his adoptive parent; and even now respondent is unable to name or identify the issue of one of the four, who is said to have died in August, 1936.

With the evident intention to encourage adoptive parents to leave their properties to their adoptive children equally with their natural children, the legislature of California has provided that:

(a) Had the decedent been survived by his adoptive mother she would have succeeded to the whole estate, the natural mother in no event inheriting anything from him. Probate Code, section 257.

(b) Had the decedent been survived by a spouse but no issue, his estate would have been distributed one-half to his spouse and one-half to his parents (by adoption), or if both are dead to their issue. Probate Code, section 223.

(c) Had decedent died under age and unmarried all the estate that came to the decedent by succession from a parent would go in equal shares to the other children of the same parent. Probate Code, section 227.

The whole scheme of the legislature seems to be to keep the line of succession within the family by adoption. By the words ‘brothers and sisters', as used in section 225 of the Probate Code, it appears to us that the legislature meant the ‘brothers and sisters' known to decedent, his brothers and sisters by adoption. If the legislature had intended otherwise, the protective wall of privacy around adoptions would serve no useful purpose, and indeed would bar members of families like the one involved in the present controversy from access to the only records which would disclose to them the existence and identity of their ‘brothers and sisters' entitled to take their estates. If blood brothers and sisters inherited under said section 225, settlement of the estates of adopted persons would be subject to endless delays and uncertainties. If it should be so held, these persons who know they have been adopted and do not know well all their relatives would not dare remain intestate; and it would be necessary for every person to examine carefully all circumstances surrounding his family from the time of his birth until he was old enough to know and remember whether or not he was adopted. We do not believe the legislature so intended.

Respondent relies upon the ‘accepted meaning’ of the term ‘brother’ as given in certain dictionaries. However, each of the definitions quoted by him defines a ‘brother’ as a ‘son of the same parents or parent’, or words to that effect. The blood relationship is mentioned specifically only in distinguishing between whole and half brothers. From the definitions of ‘brothers' and ‘sisters', it is apparent that, to determine who are ‘brothers and sisters', we must define ‘parent’. The legislature has done this for us in section 228 of the Civil Code, which provides:

‘A child, when adopted, may take the family name of the person adopting. After adoption, the two shall sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation’.

The natural father and mother, in a legal sense, ceased to be parents at the time of adoption. In re Estate of Jobson, 164 Cal. 312, 128 P. 938, 43 L.R.A.,N.S., 1062. In Re Estate of Pillsbury, 175 Cal. 454, 459, 166 P. 11, 14, 3 A.L.R. 1396, where children of decedent were adopted by their uncle after their father's death and before filing their claim for support and exemption of property of their father's estate, it was held:

‘Whatever rights as heirs had descended to them upon the death of their ancestor they still retained. But, upon the other hand, by virtue of their adoption the minors not only became members of the family of the adopting parents, but ceased to be of the family of the deceased * * *’.

The court, in Re Estate of Mercer, 205 Cal. 506, 510, 271 P. 1067, 1069, affirmed an order granting letters of administration to the nominee of the adopted daughter of decedent's predeceased husband, based upon her right of succession under subdivision 8 of section 1386 of the Civil Code, and said:

‘* * * The statute directing succession need not follow the ties of blood.

‘The weakness of appellant's position is simply that the adopted daughter cannot have the full benefit of her right as a daughter of the deceased husband in her relation to said husband unless the word ‘children’ in this statute of succession is held to include her. The predeceased spouse had an interest in, if not full ownership of, the property in question. Natural justice suggests that his daughter have an interest therein. In making his will he may have had the very contingency in mind that has arisen, and decedent, too, may, with knowledge of this statute, have declined to make a will.

‘The legislative intent is that such common property go to the child or children of the predeceased spouse, and, in the absence of such children, to divide same equally between the families of the respective spouses. [In re] Estate of Brady, 171 Cal. 1, 4, 151 P. 275. There is nothing in section 228 that in any way contemplates termination of the status of an adopted child when once it is lawfully fixed. [In re] Estate of Jobson, 164 Cal. 312, 128 P. 938, 43 L.R.A.,N.S., 1062; [In re] Estate of Hunsicker, 65 Cal.App. 114, 118, 223 P. 411. Neither the death of the adopter nor of the adopted child would have any such effect.’ (Emphasis added.)

We are here confronted with a situation wherein decedent, born George Fortna, was taken into the home of Ezra and Victoria Calhoun by adoption as their own child when he was four years of age. The only brother or sister he had ever known was his adopted sister, Daisy Oreb, appellant herein. For more than 35 years and until the day of his death, decedent knew no other sister than appellant. George A. Calhoun was a member of his adoptive family as completely as though born to the parents of appellant, Daisy Oreb.

We cannot reconcile ourselves to the contention that it was the legislative intent to declare that this family relationship that had endured for more than 35 years was terminated with the death of George A. Calhoun, and that the inheritance taken by him from appellant's mother at the time of her death should be given to respondent (a natural brother of decedent, but legally adopted into another family, and since birth a stranger to decedent). As the children of the adopted child would inherit from the adoptive mother, In re Estate of Hebert, 42 Cal.App.2d 664, 109 P.2d 729; In re Estate of Smith, 73 Cal.App.2d 291, 166 P.2d 74; and In re Estate of Grace, 88 Cal.App.2d 956, 200 P.2d 189, so, in our opinion, should the natural children of the adoptive mother inherit from the adoptive child.

From a review of our laws and the decisions of the courts, heretofore set forth, we are satisfied that appellant, Daisy Oreb, is the sister and only surviving heir of the decedent, George A. Calhoun.

For the foregoing reasons, the order from which this appeal was taken is reversed.

WHITE, Presiding Justice.

DORAN and DRAPEAU, JJ., concur.

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