IN RE: the ESTATE OF Allan Russell DAVIS (1985)

Does the adoption of a mother with children in being eliminate such children as heirs of natural grandparents?   We conclude not, limiting our conclusion to cases where the child was in being before the adoption.   Such a child succeeds to its natural grandparent's intestate estate as “issue” of the decedent.

Respondents are the grandchildren by blood of Allan Russell Davis (decedent), through his two daughters, Margaret Burnett and Judith Todaro.   All respondents were born before their mothers were formally adopted by a stepfather, Alton B. Cross.   The mother of the two daughters, Eulalia (Davis) Cross (respondents' natural grandmother), had divorced decedent and married Cross in 1971.   Cross adopted the two daughters (respondents' mothers) in November 1971.   Decedent died intestate on December 5, 1980.

Appellant is decedent's sole collateral heir, his nephew.   Appellant urges a novel proposition—that existing children of an adopted child may not be potential heirs of their natural grandparents.   In essence, he states the adoption of an intermediate parent bars the adoptee's child from the right to intestate succession of a natural grandparent.   Appellant appeals from a decree determining heirship in respondents.   Such a decree is made appealable by Probate Code section 1240, subdivision (o).¹

Although we have no authority directly on point, we start our analysis with the landmark decision concerning the succession rights of natural grandchildren in In re Darling (1916) 173 Cal. 221, 222, 159 P. 606.   Chief Justice Angellotti wrote then:  “[A]doption simply fixes the status of the child as to its former and adopted parents.   To its grandparents by blood, [the child] continues to be a grandchild, and the child of its parents by blood.   It does not acquire new grandparents in the persons of the father and mother of an adopting parent.”  (Italics in original;  id., at p. 226, 159 P. 606.)   In Darling, an adopted child was declared to be an heir of his natural grandfather.

In expressing the law in 1916 the Chief Justice concluded:  “[T]he doctrine that the rights of inheritance of the adopted child are affected by the adoption only in so far as the statutes expressly or by necessary implication affect them, and that the mere establishment of the relation of parent and child between the adopting parent and the child, with all its consequent rights and duties, affects only the relative rights of inheritance of the parties to the contract, the parents by blood, the adopting parents, and the child, has no effect at all as to the rights of the child in so far as the ancestor or collateral kindred of its parents by blood are concerned.  [¶] The adoption of a child does not deprive him of his right to inherit from his relatives by blood, unless the statute provides otherwise, and clearly this must be so.   Our statute does in effect provide as we have seen, that he can no longer inherit from his parents by blood, because so far as they are concerned he is no longer their child.   But his relationship to his grandparents by blood on either side is not affected by the adoption.   As to them he is, notwithstanding the adoption, the “issue” or child of their child within the meaning of section 1386 of the Civil Code.”  (In re Darling, supra, at pp. 227–228, 159 P. 606.)

The results of Darling were altered by the 1955 amendment to former section 257.²  (Stats.1955, ch. 1478, § 1.)   Prior to 1955, the section read:  “An adopted child succeeds to the estate of one who has adopted him, the same as a natural child;  and the person adopting succeeds to the estate of an adopted child, the same as a natural parent.   An adopted child does not succeed to the estate of a natural parent when the relationship between them has been severed by the adoption, nor does such natural parent succeed to the estate of such adopted child.”

In 1955 the section was amended to read:  “An adopted child shall be deemed a descendant of one who has adopted him, the same as a natural child, for all purposes of succession by, from or through the adopting parent the same as a natural parent.   An adopted child does not succeed to the estate of a natural parent when the relationship between them has been severed by adoption, nor does such natural parent succeed to the estate of such adopted child, nor does such adopted child succeed to the estate of a relative of the natural parent, nor does any relative of the natural parent succeed to the estate of an adopted child.”

 The effect of the change was to make an adopted child “a descendant” of the adopting parent, including “for all purposes of succession by, from or through the adopting parent the same as the natural parent.”   It implies substitution, for inheritance purposes, of the adopting parent's family for that of the natural family of the adopted person.  (Estate of Garey (1963) 214 Cal.App.2d 39, 42, 29 Cal.Rptr. 98.)   It was the legislative intent to provide that the adopted child had rights of inheritance only in the estate of his adoptive parents.  (Estate of Dillehunt (1959) 175 Cal.App.2d 464, 467, 346 P.2d 245.)   This places the adoptive child on completely equal footing with a natural child of the adoptive parents concerning rights of succession.  (Estate of Dolan (1959) 169 Cal.App.2d 628, 629, 337 P.2d 498;  Estate of Brown (1962) 199 Cal.App.2d 274, 280, 18 Cal.Rptr. 435.)

 The difficulty in the instant case arises from the fact that section 257 only addresses the succession rights of adopted children.   Respondents are not adopted children.  In re Darling also concerned an adopted child, and addressed the question of whether he inherits from his natural grandfather.   The 1955 amendment to section 257 adversely affected the rights of an adopted child to inherit from his natural grandfather.  (See Estate of Dillehunt, supra, 175 Cal.App.2d at p. 467, 346 P.2d 245.)

 However, in this instance, respondents are not the adoptees.   As a consequence of the express language of section 257, we conclude that section is inapposite to the relationships in this case.   The Legislature has not addressed the question of the right of children of an adoptee to the estate of their natural grandparents.   As Chief Justice Angellotti aptly warned:  “It is to be borne in mind that in this state both the right to inheritance and the subject of adoption with the rights and obligations springing therefrom are purely matters of statutory regulation.”  (In re Darling, supra, 173 Cal. at p. 223, 159 P. 606.)   Currently, both the statutory scheme and case law since the 1955 amendment is such that the adopted child is taken out of the line of descent or ascent of the natural parentage.   It does not necessarily follow that a natural grandchild in being at the time of his parent's adoption is so removed.

Appellant cites Estate of Hunsicker (1923) 65 Cal.App. 114, 223 P. 411 and Estate of Smith (1946) 73 Cal.App.2d 291, 166 P.2d 74, for the proposition the children of an adopted child are not potential heirs of their natural grandparent.   Neither case is apposite.   Relying on Estate of Winchester (1903) 140 Cal. 468, 74 P. 10, the Smith court stated that children of an adopted child take by inheritance as issue of the adopting parent.   In Hunsicker and Smith, the adopting parent predeceased his or her parent.  In re Darling recognized the Winchester rule that “the children of the adopted child take by inheritance from the adopting parent as issue of such adopting parent.”  (173 Cal. at p. 225, 159 P. 606.)   Darling addressed a different question (i.e., could an adopted child take from its natural grandfather?), and concluded affirmatively.   Although that rule is in doubt since the 1955 amendment to section 257, there is no authority in these cases nor in the code to establish that children of an adoptee in being at the time of the adoption cannot inherit from their natural grandfather; ³  those children were living lineal issue of natural grandparents at the time their parent was adopted.   Inasmuch as Smith concerns the question of whether children of adoptees can inherit from their adoptive line of descent, it is inapposite to the instant question, and certainly does not reach appellant's conclusion that the children of adoptees are barred from their natural line of descent.

Respondents contend their case is governed by former section 222.⁴  That section provided in part:  “If the decedent leaves no surviving spouse, but leaves issue, the whole estate goes to such issue;  ․”   Respondents are “issue” of their natural grandfather, but only because they were in being at the time of their parents' adoptions.⁵  As they themselves are not adopted children, they are not expressly restricted by former section 257, nor have their mothers' adult adoptions barred their status as “issue” of their natural grandfather.

Furthermore, the equities of this case compel the conclusion that the “issue” of decedent include his natural grandchildren, as they were all born before their mothers were adopted as adults.   Using the language of Darling, we are compelled to note respondents here continue to be grandchildren by blood.   The adoption of their mothers simply fixed their mothers' status as to their former and adopted parents.

Under the current statutory scheme, these grandchildren may in fact succeed to both adoptive and natural lines of descent, but they cannot be barred from one line by virtue of their mothers' adult adoptions by another.   Inasmuch as former section 257 was amended to place adopted children on an equal footing with the natural children of an adopting parent, the current law also allows a child of an adult adoptee to remain on equal footing with the other natural grandchildren of a current law also allows a child of an adult adoptee to remain on equal footing with the other natural grandchildren of a decedent.   To deny them status as “issue” is to write probate law, which is in the province of the Legislature.  (In re Darling, supra, 173 Cal. at p. 223, 159 P. 606.)

The decree is affirmed.

I respectfully dissent.

I believe the majority have reached an incorrect result for a variety of reasons.   First, I think they have misread the controlling statute, Probate Code section 257 (repealed effective Jan. 1, 1985;  Stats.1983, ch. 842, § 19;  see current Prob. Code, §§ 6408, 6408.5).¹

In California, both the right of inheritance and the subject of adoption with the rights and obligations springing therefrom are purely matters of statutory regulation.  (In re Darling (1916) 173 Cal. 221, 223, 159 P. 606.)   Although respondents' mothers were adults when adopted, each was a “child” for purposes of section 257, which controlled their inheritance rights in the absence of a will.  (Civ.Code, §§ 221, 227p, 228;  Estate of Morris (1943) 56 Cal.App.2d 715, 726, 133 P.2d 452.)

The majority arrive at this conclusion but opine that section 257 did not apply to respondents.   Rather, the majority conclude that respondents were entitled to take as “issue” of their deceased natural grandfather under section 222 (repealed effective Jan. 1, 1985, Stats.1983, ch. 842, § 19.)   However, section 257 provided in pertinent part, “nor does any relative of the natural parent succeed to the estate of an adopted child.”   Here, the “natural parent” is respondents' grandfather.   If respondents are “issue” of their grandfather, each must be a “relative” of his.   The “adopted child” is the mother of each respondent.   The net result of the majority's interpretation of the statute is that respondents, as relatives of the natural parent, cannot inherit from their mothers if they die intestate.

I cannot believe the Legislature intended to wean respondents from their rights to succeed to their mothers' estates.   Whatever is necessarily implied in a statute is as much a part of it as that which is expressed.   (Welfare Rights Organization v. Crisan (1983) 33 Cal.3d 766, 771, 190 Cal.Rptr. 919, 661 P.2d 1073.)   Here, the statute necessarily implies that, for purposes of intestate succession, the legal relationship between grandparent and grandchild is severed by the adoption of the child of the grandparent.   After such an adoption, the grandchild is no longer “issue” or a “relative” of the grandparent.   The grandchild can therefore inherit by succession from his or her mother.

A second problem with the majority's conclusion is it contradicts numerous decisions construing the purpose of the 1955 amendments to section 257.   As stated in Estate of Garey (1963) 214 Cal.App.2d 39, 29 Cal.Rptr. 98, “Plainly, this 1955 language implies the substitution, for inheritance purposes, of the adopting parent's family for that of the adoptee's clan.”  (P. 42, 29 Cal.Rptr. 98;  see also Estate of Calhoun (1955) 44 Cal.2d 378, 388, 282 P.2d 880, dissenting opn. of Traynor, J.;  Estate of Goulart (1963) 222 Cal.App.2d 808, 820–821, 35 Cal.Rptr. 465;  Estate of Dolan (1959) 169 Cal.App.2d 628, 629, 337 P.2d 498;  Note (1955) 29 So.Cal.L.Rev. 126, 128.)   The majority's conclusion calls for a meeting of the clan previously thought banished as a consequence of the adoption.

Indeed, the majority concede that if respondents had been born after their mothers' adoptions, section 257 would have accomplished a substitution of their adoptive families for their mothers' families.  (Maj. opn. p. 345, fn. 5.)   However, they hold that respondents avoid that consequence because they were alive when their mothers were adopted.  (Id., at p. 345.)

I cannot find a principled basis for the distinction drawn by the majority that allows respondents to inherit because they were alive at the time of the adoptions.   The statutes provide no basis for any such distinction.   Nor can any such distinction be predicated on a theory of “vested rights.”   When their mothers were adopted, respondents had no vested rights to inherit as “issue” from their natural grandfather.   Their right to inherit as “issue” under section 222 did not vest until their natural grandfather died.  (Estate of Garey, supra, 214 Cal.App.2d at p. 43, 29 Cal.Rptr. 98;  Estate of Dillehunt (1959) 175 Cal.App.2d 464, 468, 346 P.2d 245;  see Estate of Pillsbury (1917) 175 Cal. 454, 166 P. 11;  Estate of Serventi (1961) 190 Cal.App.2d 514, 515, 12 Cal.Rptr. 206.)   Here, since their mothers' adoptions occurred before their natural grandfather died, their statutory rights of inheritance were terminated by operation of section 257 without affecting any vested rights.  (See Estate of Serventi, supra, 190 Cal.App.2d at pp. 514–515, 12 Cal.Rptr. 206.)

Another problem with the majority's conclusion is it leads to a rather odd result.   It is clear that, by virtue of their mothers' adoptions, respondents are heirs of their adoptive grandfather, Alton B. Cross, and may inherit from him by succession.  (Estate of Smith (1946) 73 Cal.App.2d 291, 166 P.2d 74;  Estate of Herbert (1941) 42 Cal.App.2d 664, 109 P.2d 729.)   The majority allow respondents also to inherit by succession from their natural grandparent.   I do not think the Legislature intended to provide this unique panoply of ancestors to children of adopted children.

The majority's conclusion makes bad policy as well as bad law.   Even assuming the majority's rule applies only to grandchildren alive at the time of their parent's adoption, in many instances, such grandchildren will be infants at the time of the adoption.  (See TenBroek, California's Adoption Law and Programs (1955) 6 Hast.L.J. 261, 263–265.)   They will have no familial relationship with their natural grandparent.   In many instances such grandchildren will later undertake a kind of treasure hunt for ancestors that will be disruptive of the adoptive family relationship.

Also, although I cannot prove it with hard statistical evidence, I believe a rule that allows children of adopted children to inherit from their adoptive grandparents, but not from their natural grandparents, probably reflects the intentions and expectations of all concerned in most cases.   The relinquishment of natural parental ties is a serious and dramatic step.   It would be the rare case in which the relinquished parent would want his or her estate to go to the family who traded him or her in on a different model.   In any event, any natural grandparent who wishes his or her natural grandchildren to inherit in these circumstances can so provide by will.

If grandchildren in the position of respondents have any viable legal claim, it may be based on a denial of procedural due process.   Under article I, section 7, subdivision (a) of the California Constitution, a citizen of this state has certain rights to procedural due process when a statutorily conferred benefit is subject to deprivation.  (People v. Ramirez (1979) 25 Cal.3d 260, 264–268, 158 Cal.Rptr. 316, 599 P.2d 622, see Schultz v. Regents of University of California (1984) 160 Cal.App.3d 768, 781, fn. 7, 206 Cal.Rptr. 910.)   Here, respondents were arguably deprived by their mothers' adoptions of their statutory right under section 222 to inherit by succession from their natural grandfather.²  However, any problem with due process is not tendered on the instant record:  respondents have not contended (nor does the record show) that their mothers' adoption proceedings in Alaska failed to provide them with adequate due process.   On the record presented, this court must give the Alaska adoptions full faith and credit.  (Estate of Morris, supra, 56 Cal.App.2d at p. 723, 133 P.2d 452;  see Estate of Smith, supra, 73 Cal.App.2d at p. 292, 166 P.2d 74;  Estate of Herbert, supra, 42 Cal.App.2d at p. 665, 109 P.2d 729.)

I would reverse the decree.

FOOTNOTES

1.   All statutory references are to the California Probate Code.   Probate Code section 1240, provides in part:  “An appeal may be taken from an order ․ (o) Determining heirship ․”

2.   Section 257 was repealed effective January 1, 1985 (Stats.1983, ch. 842, § 19);  see current sections 6408 and 6408.5.   For purposes of this opinion, we will refer to the statute as it was at the time of trial.

3.   In Hunsicker, supra, 65 Cal.App. 114, 223 P. 411, we held the children of an adoptee could not inherit as pretermitted heirs of their natural grandfather as the statute there relied upon required these children be the issue of any deceased child.   Their mother was still alive.   The conclusion that, if their mother did not have the right to inherit her natural father's estate, her children did not have the right either, is obiter dictum.

4.   Former section 222 was repealed by Stats.1983, p. 4470, section 19, operative January 1, 1985, but pursuant to sections 240 and 6414, continues to apply to estates of decedents who died before January 1, 1985.For purposes of this opinion, we refer to section 222 as it existed at the time of trial.

5.   Were these grandchildren born after their mothers' adoptions, we would be compelled to conclude the effect of the 1955 amendment to section 257 implies a substitution of the adopting parent's family for that of the natural family of the adopted person for inheritance purposes.  (Estate of Garey, supra, 214 Cal.App.2d at p. 42, 29 Cal.Rptr. 98.)   In such a case, those grandchildren born after the adoption would not appear to be “issue” of their natural grandparents.   The Legislature has not addressed this set of circumstances either.

1.   All further statutory references are to the Probate Code unless otherwise indicated.

2.   In many instances, an adult adoption could also sever emotional family ties between grandchild and grandparent.

REGAN, Acting Presiding Justice.

EVANS, J., concurs.