In Re the Estate of Smith

326 P.2d 400, 7 Utah 2d 405, 1958 Utah LEXIS 164

• Court: Utah Supreme Court
• Decided: June 4, 1958
• Docket: 8688
• Status: Published

Opinions

JONES, District Judge.

Should adopted children inherit from their adoptive parents’ relatives: This is the sole question presented by this appeal. Appellant, as guardian of the estate of an adopted child, asserts that the probate court erred in declining to include said minor as an heir to the adoptive father’s mother’s estate. Respondent relies on the decision of this court in Re Harrington’s Estate, 96 Utah 252, 85 P.2d 630, 120 A.L.R. 830. It was there determined that an adopted child was not “issue” of the adopting father’s parent.¹

Appellant contends that Harrington should now be overruled for two reasons: (1) this Court failed to fully consider the legislative history of our adoption statute (now 78-30-10, U.C.A.1953, and see 74-4-5, U.C.A.1953); and (2) the great increase in the number of adoptions in this jurisdiction in recent years requires that this entire question of the relationship of an adopted child to the adopting parents’ family be now re-examined in the light of “modern thinking.” We have examined the citations and references contained in the briefs and are not persuaded that we should now overrule our prior decision, and thereby create uncei'tainty as to an important rule of property which is firmly established in this jurisdiction.²

In making this disposition of this case we are not unmindful of the complex social problems arising from the large number of broken homes which have plagued society in recent years with the consequent problem of how to best place children in new families.³

But, notwithstanding the pressing social problems, we are not constrained to overrule our former decision. If it is desirable that our statute law, as construed by this court nineteen years ago, be amended, the Legislature and not the courts is the proper forum to consider and act on this proposal.

Affirmed.

McDONOUGH, C. J., and WADE and WORTHEN, JJ., concur.

1 . For a discussion of the meaning of the words “child” and “issue,” see Vol. 43 Mich.Law Rev. 727.

2 . Most of the cases relied on by appellant are reviewed in Re Stanford’s Estate, Cal., 315 P.2d 681. It was there held that an adult and her two children adopted after the death of the testatrix are to be included as remaindermen.

3 . See Brooks & Brooks, “Adventuring in Adoption”; and Bureau Publications 148 and 216, U. S. Department of Labor,