Reeves v. Lowe

56 So. 2d 475, 213 Miss. 152, 1952 Miss. LEXIS 344
CourtMississippi Supreme Court
DecidedJanuary 21, 1952
DocketNo. 38117
StatusPublished
Cited by3 cases

This text of 56 So. 2d 475 (Reeves v. Lowe) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reeves v. Lowe, 56 So. 2d 475, 213 Miss. 152, 1952 Miss. LEXIS 344 (Mich. 1952).

Opinion

Roberds, J.

The question for decision on this appeal is whether an adopted child inherits from a sister of the adopting parent where the parent predeceases the sister. The question has not been decided in this State. It arises under these circumstances:

On October 23, 1917, S. C. Carroll, and his wife, Laura S. Carroll, adopted appellee through the Chancery Court of Jones County, Mississippi. The petition for adoption is not in the record but the decree of adoption recites that the petitioners “propose that the said minor shall be adopted as their child and shall inherit from either or both of them the same as if she were their own child. ’ ’ The decree then grants the petition for adoption.

Later, Mr. Carroll died and his wife married J. M. Lowe. On October 20, 1947, Mrs. Lowe departed this life intestate, leaving as her heirs her husband and ap[156]*156pellee, the adopted child. Mrs. Lowe was the owner of a one-half undivided interest in a lot in Meridian, the subject of this lawsuit, and her sister, Miss Dora Davis, owned the other one-half undivided interest.

On May 26, 1948, Miss Dora Davis died intestate, leaving as her nearest of kin a number of first cousins. Thereafter, Mr. Lowe conveyed his one-fourth interest in said lot to appellee, whereby appellee became the owner of a one-half undivided interest in the lot.

Appellant filed the bill in this cause, asserting that she was the owner of the entire interest in the lot, one-fourth by virtue of inheritance from her adopting mother, one-fourth by virtue of the deed to her from Lowe and one-half as heir of Miss Dora Davis as against the first cousins, the next of blood kin, of Miss Davis. These first cousins were made defendants to the bill, as well as any other persons who might have or claim an interest in the property. If appellee, as the adopted daughter of Mrs. Laura Carroll (later Mrs. Lowe) inherits from Miss Davis, the sister of Mrs. Lowe, then appellee is the sole owner of the lot; if she does not inherit, she has a half interest, and appellants own the other one-half interest. The chancellor decided in favor of complainant-appellee, and the defendants appeal.

The Mississippi adopting statute, at the time of the adoption of appellee and now, provides: “* * * the petitioner shall also state in the petition what gifts, grants, bequests or benefits he proposes to make or confer, if any, upon the person sought to be adopted. ’ ’ Section 542, Code 1906; Section 1269, Code 1942.

The statute itself does not confer any property or inheritability rights whatever upon the adopted child. It simply empowers the chancery court to grant the adoption. The property rights or material benefits vested by the proceeding must be set out in the petition for adoption. Of course, the proposal of petitioner to confer property benefits, or his failure so to do, would naturally influence the chancellor in the exercise of his [157]*157decision to grant or refuse the adoption. But the gifts, grants, bequests and benefits conferred upon the child proposed to be adopted depend entirely upon the proposal in the petition and the decree granting the adoption. The statute itself confers none. It, therefore, follows that the adopted child acquires no right of heirship from the adopting parent where the petition and decree of adoption do not vest such right. Beaver v. Crump, 76 Miss. 34, 23 So. 432; Fisher v. Browning, 107 Miss. 729, 66 So. 132; Leonard v. H. Weston Lumber Company, 107 Miss. 345, 65 So. 459; Whitman v. Whitman, 206 Miss. 838, 41 So. (2d) 22. Many of the states do have statutes defining property and inheritable rights of the adopted child, Anno. 120 A. L. R. 837, and naturally such statutes are usually more favorable to the child than is our procedure, where the extent of such right is dependent upon, and fixed by, the chancery proceeding and not by a statute. Beaver v. Crump, supra. However, in the case at bar the decree provided that appellee should inherit from the adopting mother as her “own child”, which had the. same effect as though the statute had so provided. The question then recurs whether appellee is an heir of the sister of her adopting mother where the mother predeceased the sister?

The Florida Supreme Court recently passed upon this question, one of first impression in that State, and held that such adopted child did not so inherit. In re Hewett’s Estate, 153 Fla. 137, 13 So. (2d) 904, 905. The case is in all substantial respects the same as the case at bar. The principal difference is that Florida has a statute making every adopted child an heir-at-law and, for the purpose of inheritance, a lineal descendant of the adopting parent. Every adopted child, regardless of the wishes or proposals of the petitioner, is therefore an heir of the adopting parent, whereas in this State a child may be adopted without any property rights or heirship being conferred upon the child, the decree of adoption merely creating as between the parties the domestic [158]*158status of parent and child, with the reciprocal duties and responsibilities of parent and child. In the Hewett case, as in the case at bar, the question was whether an adopted child inherited from a collateral relative of the adopting parent where such parent predeceased the collateral relative. The Court in that case put the question in this form: “Is the adopted daughter of William B. Colwell, the deceased first cousin of William B. Hewett, entitled to share in the estate of William B. Hewett to the same extent that her adopted father would have shared had he been living at the time of William B. Hewett’s death?”, which is the exact question in the case under consideration. The opinion in that case discussed fully the principles applicable to the questions involved in the case at bar, and the holdings of other courts upon those questions. The case is in point here, and we quote from it at length:

“In the light of the facts of this case the controlling question might be briefly stated in these words: Is the adopted daughter of William B. Colwell, the deceased first cousin of William B. Hewett, entitled to share in the estate of William B. Hewett to the same extent that her adoptive father would have shared had he been living at the time of William B. Hewett’s death?

“ (1) Our old adoption statute (ch. 3594, Acts of 1885, sections 5076-5081, C. G. L., sections 72.01 to 72.06, Fla. Stats. 1941, F. S. A. Sections 72.01 to 72.06) contains a provision to the effect that any child adopted thereunder ‘shall be declared the child and heir at law of the person applying for his adoption. ’ The same rule was made to apply to a child legally adopted in another state. Sec. 5488, C. G. L. The Probate Act of 1933, section 31, now appearing as section 731.30, Fla. Stats. 1941, F. S. A. Section 731.30, being the last expression of the legislative will, is controlling here. It reads as follows:

“ ‘Adopted child, — An adopted child, whether adopted under the laws of Florida or any other state or country, shall be an heir at law and for the purpose of inheritance [159]*159be regarded as a lineal descendent of its adopting parents and tbe adopting parents shall inherit from the adopted child. Sueh adopted child shall inherit the estate of its blood parents, but such blood parents shall not inherit from such adopted child.’

“Section 24, subsection 6 (b), of the Probate Act of 1933, being subsection 6 (b) of section 731.23 of Fla. Stats. 1941, F. S. A. Section 731. 23, reads:

‘ ‘ Order of succession.

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Related

Gray v. Morgan
110 So. 2d 346 (Mississippi Supreme Court, 1959)
Gamble v. Cloud
82 So. 2d 526 (Supreme Court of Alabama, 1955)
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Bluebook (online)
56 So. 2d 475, 213 Miss. 152, 1952 Miss. LEXIS 344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reeves-v-lowe-miss-1952.