Estate of Stewart

California Court of Appeal Jan 30, 1939 No. Civ. 6165Published

Before: Tuttle

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Holding. The court held that an adopted child does not have the right to inherit from the collateral kindred of an adoptive parent, as the right of inheritance for an adopted child is limited to the estate of the adoptive parent.

Issues

Whether an adopted child is entitled to inherit from the collateral kindred of a predeceased adoptive parent.
Whether the estate of an intestate decedent who leaves no blood kindred escheats to the state when the only claimants are the adopted children of a predeceased cousin.

Disposition. reversed

Quotations verified verbatim against the opinion

“The rights of inheritance of an adopted child, although complete in respect to the adopting parent, do not extend to the collateral relative of that parent.”

“As the law now stands, the sole right of an adopted child to succeed is restricted to the estate of the one who has adopted him.”

“an adopted child may inherit from his adoptive parent but not through him”

TUTTLE, J.

This is an appeal from a judgment to the effect that respondents are the next of tin of James J. Stewarf, deceased, and the only persons entitled to the distribution of the estate of said decedent.

On February 13, 1937, James J. Stewart died intestate, and the public administrator was appointed to administer his estate.

The record shows without, dispute that Stewart died without leaving either issue, spouse, parent, brother, sister, or descendant of a deceased brother or sister, nor any blood kindred whatsoever. The record further shows that the respondents are children by adoption of Stewart’s predeceased cousin, Mary Lancaster Coffee. These two adopted children petitioned the trial court that they be determined the next of kin of said Stewart, and therefore, entitled to succeed to his estate. The attorney-general appeared at the trial in opposition to the petition, claiming that the said estate es-cheated to the State of California, under the provisions of the Probate Code, section 231, for the reason that the petitioners were not the next of kin of said deceased. The trial court found that petitioners were entitled to succeed as heirs to the estate of decedent as his next of kin.

It is the contention of the state on this appeal that the evidence is insufficient to support the finding to the effect that respondents were the next of tin of said decedent.

The case involves the construction to be placed upon our statutes of adoption and succession, and the statutes on es-

[596]

cheat. The pertinent code sections relative to adoption-are the following:

Civil Code, section 228: “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.”

Civil Code, section 229: “The parents of an adopted child are, from the time; of the adoption, relieved of all parental duties towards, and all responsibility for, the child so adopted, and have no right over it. ’ ’

Estate of Stewart

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TUTTLE, J.

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