In Re Captain's Estate

By the rule of the majority opinion an adopted child has no right of inheritance from the estate of a deceased adoptive brother or sister, but in the absence of an heir the estate of such a brother or sister escheats to the state. Such a construction in this enlightened age, to me, is unthinkable, contrary to the meaning of words used in related statutes, and unjust. By it, if in years to come, in the natural course of events, my child should outlive my other heirs, should my sister's adopted child do likewise as to her heirs, and should my child predecease my sister's child, none of my property or my child's property would go to my sister's child, but in the absence of an heir the estate would be forfeited.

Section 1711, O. S. 1931, 10 O. S. 1941 § 51, provides:

". . . a child . . . after adoption . . . shall sustain . . . the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation."

Section 1713, O. S. 1931, 10 O. S. 1941 § 53, in part, provides:

". . . all laws of descent and rules of inheritance shall apply to and govern the descent of any such property (that descending from an adopted child) in the same manner as if the child were the natural child of such parents, . . ." — limited, however, so that the inheritance from such an adopted child may not include that which comes to the adopted child from kindred of the blood.

The limitation imposed does give some advantage to the estate of an adopted and so underprivileged person. That advantage, however, is exactly offset by the limitation contained in section 1712, O. S. 1931, 10 O. S. 1941 § 52:

". . . that he (the adopted child) shall not be capable of taking property expressly limited to the body or bodies of the parents by adoption nor property from lineal or collateral kindred of such parents by right of representation."

The majority view is based upon a construction of the provision contained in section 1712, O. S. 1931, 10 O. S. 1941 § 52, that:

"A child so adopted shall be deemed, for the purposes of inheritance by such child, * * * the child of the parents by adoption the same as if he had been born to them in lawful wedlock. . . ."

By asterisks, first employed, I have omitted the phrases "and his descendants and husband or wife, and other legal consequences and incidents of the natural relation of parents and children, . . ." The omission is not by reason of unimportance, but the particular significance of the words "legal consequences and incidents of the natural relation of parents and children."

The import of those words ought to be decisive here, for they are indicative of the legal relation of natural children, and that is the right of inheritance not only as between parent and child, but as well among children of the same family. The basic state.

My opinion could well rest upon the preceding statement, but for adverse construction of the first part of the preceding section of our statute originating in the State of Illinois in the case of Keegan v. Geraghty, 101 Ill. 26, decided in the year 1881, and followed in New Hampshire, Rhode Island, Wisconsin, and Oregon.

We have no legislative history of adoption of statutes from the State of Illinois, but we may well presume that section 1712 was adopted from that jurisdiction, and the "violent" presumption may be based upon the stated presumption that our Legislature adopted the statute in view of the adverse construction placed upon it in the state of its origin.

Withal, such presumptions are mere rules of construction intended to guide the lamp of reason. Principles of construction are out of place and pernicious if they are sought to be introduced and applied when they are not called for, and if they are sought to destroy the effect of a legislative enactment, and to warp it from the true and plain meaning of the Legislature. Choctaw, Oklahoma Gulf R. R. Co. v. Alexander, 7 Okla. 591, 54 P. 421. This court, in trial and error fashion, requisite to jurisprudence of a comparatively new state, has never hesitated to overrule decisions of its own creation, so a fortiori why should it now make the mistakes of others and of yesteryear the law of today? It is only by departure from the rule that clear language employed in a statute cannot be restrained or extended by any construction and meek submission to spoken words — empty of wisdom and contrary to public policy enjoined upon us by law (secs. 2, 3, O. S. 1931) — that a majority of this court can follow the decisions urged upon us.

As indicated in Alexander et al. v. Samuels, 177 Okla. 323,58 P.2d 878, there are jurisdictions in American jurisprudence where statutes of adoption are treated as being in derogation of the common law, and consequently strictly construed so that the rights of adopted children are sharply limited. But ours is a jurisdiction not so fettered with legal lore. Chicago, R.I. P. Ry. Co. v. Groves, 20 Okla. 101, 93 P. 755, 22 L. R. A. (N. S.) 802.

The common law, while consistent with the best scholastic thought of the period, nevertheless was developed by the same minds that indulged witchcraft, enchantment, and sorcery as institutions of the "myriads who, before us, passed the door of darkness through." To the jurist of succeeding ages that come and go upon "this chequerboard of night and days" it was thought that we might well depart in our distributive system of justice from some of the harsh and even ridiculous doctrines of the middle ages. Garrison v. Territory of Oklahoma,13 Okla. 690, 76 P. 182. And so our courts have adopted a liberal attitude to give effect to the spirit and meaning of statutes, for, while by virtue of sections 2 and 3, O. S. 1931, 12 O. S. 1941 § 2, and 25 O. S. 1941 § 29, respectively, the common law of England as modified remains in force within the State of Oklahoma, in aid of statutes, the rule of strict construction, elsewhere applied to such statutes, does not obtain in this jurisdiction, but all such statutes shall be liberally construed to promote their object and justice. Green et al. v. Wilson et al., 112 Okla. 228, 240 P. 1051.

The Supreme Court of Kansas, a state of the Golden West, a part of the old cattle country, and one not hidebound with traditions, says of a similar statute that an adopted child has ". . . the same rights of person and property as children or heirs at law of the person thus adopting them"; that the right of inheritance enjoyed by an adopted child is identical with that of a natural child. That eminent tribunal would not, it said, follow "peculiar discriminations" displaying "the hostile attitude of the common law toward the whole subject of legitimation and adoption of children," for that theory indulged by foreign decisions upon the subject was at variance with a general spirit of local law.

I maintain that the language of section 1712, supra, to the effect that:

"A child so adopted shall be deemed for the purpose of inheritance by such child . . . the child of the parents by adoption the same as if he had been born to them in lawful wedlock"

— is plain, simple, broad, comprehensive, and unambiguous. So thought the court of Wyoming in regard to their statute upon the subject. In re Cadwell's Estate, 26 Wyo. 412, 186 P. 499.

If that be so, resort will not be had to rules of construction, neither shall we care as to that which others say as to their statute, though it be identical with ours, where theirs is measured by rigorous adherence to common law. For "where the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself." In re Martin's Estate,183 Okla. 177, 80 P.2d 561.

We are well aware of the fact that a natural child has no more to say about who natural brothers and sisters are to be, nor the number of them, than about adopted brothers or sisters, but the law speaks upon the subject of devolution of all property. If one does not wish to be governed by the law, resort may be had by a person sui juris to the simple expediency of making a will, in the absence of which an innocent and underprivileged child, by reason of adoption, by law, will be elevated to the rank and dignity of an issue of the body. The phrase "for the purpose of inheritance" is all inclusive. The unlimited inheritance provided by law for the child is "a general sweeping omnibus provision" of inheritance. In re Cadwell's Estate, supra. It simply means that the adopted child may inherit from everybody within the contemplation of heirs, without exception, other than as heretofore noted and limited to estates in their nature ancestral.

The judgment of the lower court rested upon the decision of Keegan v. Geraghty, 101 Ill. 26, a decision construing a statute identical with our section 1712, supra, but a statute unaided by kindred statutes such as that provided by section 1711, supra, and within a jurisdiction where statutes in lieu of common law were considered in derogation of those rules rather than in aid of them.

The reasoning of the Illinois court injected into the statute the query — "For the purpose of inheritance by such child —from whom?"

The scales of justice in that cause were shattered for a moment by the observation that "the statute does not say" and then the bleak corpse of the common law appeared to the minds of those jurists and by the words they used, decisive of the issue, there was demonstrated the clearest example of constitutionally inhibited judicial legislation (sec. 1, art. 4, Const.) that has come to my attention in a score of years upon the bench: "The statute does not say, but we say, from the adoptive parents."

Redundancy of that judicial legislation is exhibited by the second exception in the statute contained; it excludes the adopted child's inheritance "by right of representation." That court concluded that the language of this exception was negative and restrictive so as not to grant, affirmatively, a right of inheritance to the child. But since that language is restrictive, of necessity it limited that affirmatively, broadly, and previously granted. Moreover, that which was so previously granted was the adopted child's all-inclusive right of inheritance. "For the purpose of inheritance by such child."

The language employed by the phrase previously used granted all the right designated. When subsequently an exception or limitation was employed by the statute, it excluded all other exceptions not stated. Expressum facit cessare tacitum.

The Supreme Court of Illinois, by that decision, convicted the Legislature of an absurdity, for if the adopted child's inheritance was limited to that from the adoptive parents, as the court decided, there was no need in that state for the statute construed. That court, in reference to the revision of the Illinois statute of 1874, said it was not clear that the Legislature intended to make "such an important and uncalled for change in our law." Doubtless the Legislature thought its effort important, for by the old law the adopted child, as to the adoptive parents, was "capable of inheriting his or her estate." Why, at public expense, would Solons "thrash old straw"? But whether the attempt was "uncalled for" at first would seem to be a matter addressed to legislative discretion. "The wisdom or want of wisdom displayed in the act is not a question for the courts, nor are the motives of the Legislature in including or omitting certain provisions." 59 C. J. 945; Peak v. Reed, 24 F.2d 619.

In conclusion, I respectfully suggest that a foreign decision, so palpably illogical, unsound, and contrary to principles of justice, adverse to the genius of a free people as expressed in law, denoting departure from unequal privileges of the common law, would not influence my decision in this cause so likely to establish a harsh rule effecting the devolution of property of an enlightened citizenship.

Will it be said in future, under the rule of law promulgated by the majority, limiting an adopted child's right of inheritance to the estate of adoptive parents, in this modern age when children are acquired by the intelligentsia under a comparatively new method, that adoptive brothers and sisters may not inherit from each other with whom they have experienced life from the cradle to the grave? I would not so say.

OSBORN, J., concurs.