Opinion
36093.
DECIDED JULY 2, 1956.
Declaratory judgment; right of inheritance. Before Judge Eve, Emeritus. Atkinson Superior Court. December 7, 1955.
Benjamin Smith, Jr., J. D. Blalock, for plaintiff in error.
E. R. Smith, Jr., Ben A. Hodges, Robert B. Sumner, contra.
1. "The general tendency of the courts is to give a child regularly adopted under the laws of one state the same right of inheritance under the laws of another as is given in such other to children adopted under its own laws." 1 Am. Jur. 667, § 66. In the administration of an estate in Georgia, the minor child of the deceased will inherit under Georgia law, regardless of the fact that she was, prior to the death of her natural father, adopted by another in the State of Florida.
2. Under the principles of common law a child is entitled to inherit from its natural father who dies intestate, and this rule is generally applied even though the child has been adopted by another and is also entitled to inherit from its adoptive parents in the absence of statute expressly prohibiting the right of such adopted child to inherit from its natural parents. See annotation in 37 A.L.R. 2d 336.
3. Since there is no language in Code (Ann. Supp.) § 74-414 relating to the rights of adoptive children which expressly or by necessary implication forbids the adopted child to inherit from natural parents dying intestate, the common-law rule prevails and such adopted child will inherit along with other children and the spouse of the deceased under the provisions of Code § 113-9, regardless of whether or not it also has a right of inheritance from its adopted parents. Sears v. Minchew, 212 Ga. 417.
The trial court did not err, in an action for declaratory judgment filed by the administrator of the intestate, in holding that the minor child of the deceased (who had prior to his death been adopted by another) was entitled to share in the distribution of the estate.
Judgment affirmed. Townsend and Carlisle, JJ., concur.
DECIDED JULY 2, 1956.
Warren Minchew, administrator of the estate of H. F. Sears, Jr., filed an action for declaratory judgment in the Superior Court of Atkinson County, naming as defendants Mrs. H. F. Sears, Jr., widow of the intestate, H. F. Sears III, son of the intestate, and Jeanette Lentz Bryant. The latter was the daughter of the intestate by his first marriage and was subsequently taken to Florida by her mother after a divorce between the parties and adopted in Florida by her mother's second husband. Under Florida law, which was properly pleaded, a child in the position of Jeanette Bryant might inherit from her natural father in spite of the fact of having subsequently acquired an adopted father, and it was contended by the defendant widow (a) that in this proceeding in Georgia where the administration of the estate of the intestate was proceeding the Florida law would not control, and also (b) that under Georgia statutes the right of Jeanette Bryant to inherit from her natural father was cut off by the adoption proceedings. The case was tried on an agreed statement of facts and judgment declared in favor of the right of the adopted child to inherit from her natural parent. The case was appealed to this court, and this court certified to the Supreme Court the following questions:
"1. Is the right of an adopted child admitted to be under the jurisdiction of the Superior Court of Atkinson County, Georgia, to inherit from its natural father who died intestate subsequent to the adoption proceedings controlled by the laws of the State of Georgia or Florida under circumstances as follows: The father of the child, a resident of Georgia, died in Georgia, leaving real and personal property located in Georgia; the child was born in Georgia and, following a divorce of her natural parents, was taken to Florida by the mother, to whom the court had awarded custody of the child, and while still a minor the child was adopted with the consent of the natural father by the second husband of the natural mother, a Florida resident, in an adoption proceeding in Florida?
"2 (a) If the answer to the first question is that the laws of Georgia control, does the following language from the Act of 1941 relating to adoption (Ga. L. 1941, pp. 300, 305; Code, Ann. Supp., § 74-414) operate so as to divest an adopted child, under Georgia law, from inheriting from her natural father:
"`Thereafter, the relation between such person and the adopted child shall be as to their legal rights and liabilities, the relation of parents and child, except that petitioner or petitioners shall never inherit from the child, When the final adoption shall have been granted, the parents of the child shall be divested of all legal rights or obligations from them to the child or from the child to them; and the child shall be free from all obligations of any sort whatsoever to the said natural parents'?
"(b) If not, does the following language from the amendatory act of 1949 (Ga. L. 1949, p. 1157) operate so as to divest the adopted child, under Georgia law, from the right of inheritance from its natural father:
"`Said adopted child shall be considered in all respects as if it were a child of natural bodily issue of petitioner or petitioners, and shall enjoy every right and privilege of a natural child of petitioner or petitioners to inherit under the laws of descent and distribution in the absence of a will and to take under the provisions of any instrument of testamentary gift, bequest, devise, or legacy, unless expressly excluded therefrom'?
"(c) If not, do the two provisions set out in (a) and (b) hereof, when construed together, have such effect?"
The Supreme Court in Sears v. Minchew, 212 Ga. 417 ( 93 S.E.2d 746), answered the above questions and held that in such cases the laws of Georgia are controlling, and, there being nothing in Georgia statutes requiring a holding to the contrary the common-law right of the child to inherit from its natural parent continues.