Thornton v. Anderson
Thornton v. Anderson
Opinion of the Court
Mrs. Ruebena Thornton executed her will on December 15, 1938. By it she gave her husband $5, bequeathed the rest of her estate to her mother, Mrs. Allie Anderson, and made no reference to or mention of a child or children. She and her husband, O. B. Thornton Jr., on September 24, 1949, legally adopted a minor child, Mary Rebecca Thornton. Her will made no provision in contemplation of that adopting event. The testatrix died March 8, 1950. Mrs. Allie Anderson, the nominated executrix, first probated the will in common form and then offered it for probate in solemn form, and her petition for probate, in part, alleges “that the said Ruebena Thornton, deceased, left as her sole heirs at law her husband, O. B. Thornton Jr., and an adopted child, Mary Rebecca Thornton, of the age of nineteen months.” O. B. Thornton Jr., individually and as next friend of Mary Rebecca Thornton, filed a' caveat' and alleged that the paper offered as Mrs. Thornton’s will should not be probated as such because it had been impliedly revoked by the adoption of Mary Rebecca Thornton subsequent to its execution. The propounder filed a motion to strike the caveat on the ground that it alleged no legal reason why probate should be refused. The proceeding was appealed by consent to the Superior Court of Elbert County. The parties stipulated that the will involved was valid and should be probated in solemn form unless it was revoked by the subsequent adoption of Mary Rebecca Thornton by the testatrix and her husband. The motion to strike the caveat was sustained and the will was duly probated. The exception is to that judgment.
Primarily, two statutes of this State must be examined for
Hilpire v. Claude, supra, involved an Iowa Statute (Code § 3276), which provides that “the subsequent birth of a legitimate child to the testator before his death will operate as a revocation” of his will, and other sections of a separate adoption statute, among which are: Code § 2307, conferring on an adopted child “all the rights, privileges and responsibilities which would pertain to the child if born to the person adopting in lawful wedlock”; Code § 2310, providing that “the rights, duties and relations between the parent and child by adoption, shall, thereafter, in all respects, including the right of inheritance, be the same that exist by law between parent and child”; and Code § 2311, providing “. . But no action of the court in the premises shall affect or diminish the acquired right of inheritance on the part of the child, to the extent of such right in a natural child of lawful birth.” In the reasoning of the Iowa court the following appears: “The reasons for the rule that subsequent birth of a legitimate child to the testator before his death operates as a revocation of his prior will apply with equal force to a subsequent adoption under a statute like ours, containing no exceptions or qualifications, and declaring that the rights, duties and relations between parent and child by adoption shall ‘in all respects, including the right of inheritance, be the same that exist by law between parent and child by lawful birth.’ While these relations and rights are statutory, and may not be enlarged beyond the plain meaning of the statute, that meaning should not be defeated by any strained construction. We conclude that it is the legislative intention to place adopted children upon the same level as children of lawful birth, in all respects.”
And it was said by the Supreme Court of Illinois in Flannigan v. Howard, supra: “By the plain and unambiguous language of the statute, the right of the plaintiff in error to inherit from Bridget Howard is made identical with the right of a child born to her, and when plaintiff in error became her child by adoption, after the making of the will, the effect, in law, was
In Georgia, the rules of inheritance, as fixed by statute, use the words “child” or “children” without mentioning therein an adopted child or children. Nevertheless, in virtue of our adoption statutes, an adopted child or children take under our statute of descent as natural children of lawful birth. For example, under our rules of inheritance, “Upon the death of the husband without lineal descendants, the wife is his sole heir, and upon the payment of his debts, if any, may take possession of his estate without administration.” Code, § 113-903(1). But, under the provisions of our adoption statute and the rights of inheritance conferred by it, an adopted child of the deceased husband, like a lineal descendant of the deceased, will deprive the wife of the right to take his entire estate as sole heir at law, without administration; and this is true because the statute fixing our rules of inheritance must be construed in pari materia with our adoption statute. Alexander v. Lamar, 190 Ga. 656 (10 S. E. 2d, 42). A similar situation exists as to our statute providing for a year’s support to the widow and minor children of a deceased husband and father. Code, § 113-1002, as amended by the act of 1939 (Ga. L. 1939, p. 236). Yet it was held in Pierce v. Harrison, 199 Ga. 197, 198 (3) (33 S. E. 2d, 680) that, “Where, after the death of the grandfather, his equity in a de
Judgment reversed.
Dissenting Opinion
dissenting. By Code § 113-106 any person is empowered to dispose of his property by a will, provided only that such disposition is consistent with the laws and
The amendment of the adoption law (Ga. L. 1949, pp. 1157, 1158) does not even purport to amend or alter the foregoing law to make a will but expressly states that its purpose is to amend the 1941 adoption act (Ga. L. 1941, p. 305) and, by its terms, it deals solely with rights of the adopted child. Since it does not purport to amend Code §§ 113-106 and 113-408, the constitutional requirements as to express amendments found in Code (Ann.) § 2-1916, art. 3, sec. 7, par. 14, Constitution of Georgia; Ga. L. 1945, p. 24) have no application; but if it is to be given the effect attributed to it by the majority opinion, then it becomes an amendment of those Code sections by implication. Laws may be repealed by implication; and if the term, “birth of a child to him,” found in Code § 113-408, is to include the adopted child, as ruled by the majority, then that much of the Code section is, by this amendment, repealed and, in lieu thereof, are inserted, in substance, the words, “the birth of a child to him or the legal adoption of a child by him.” It is the established rule of construction that, before repeal by implication will occur, the later act must be repugnant to and irreconcilable with the former law. If the two will bear a construction that avoids repugnancy, then the former law is not
I would quite readily agree that it would be right and just to provide by law that the adoption of a child would have the same effect as marriage or the birth of a child, but that should be done by plain law enacted by the sole law-making body of the State. The virtue or desirability of such a law is no justification for -obtaining it by tortured construction contrary to established rules to guide construction. The majority opinion will become the law of the land, and this opinion will neither affect the rights of these parties nor change the law as fixed by the majority, but it does give recognition to rules of construction upon which we must depend in the future. For the foregoing reasons I would affirm the judgment of the trial court.
Reference
- Full Case Name
- THORNTON Et Al. v. ANDERSON, Executrix
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- Published