MacCallum v. Seymour's Administrator

MacCallum v. Seymour's Administrator  (95-233); 165 Vt 452; 686 A.2d 935

[Opinion Filed 13-Sep-1996]



       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 95-233


Gail McCallum                                     Supreme Court

                                                  On Appeal from
    v.                                            Franklin Superior Court

Philip Seymour's Administrator,                   March Term, 1996
Janet Seymour


Ronald F. Kilburn, J.

       Sandra E. Levine of Cheney, Brock, Saudek & Mullett, P.C., Montpelier,
  for plaintiff-appellant

       Kenneth Appel, St. Albans, for defendant-appellee

       Jeffrey L. Amestoy, Attorney General, William H. Rice, Assistant
  Attorney General, and Albert H. Coons, Jr., Montpelier, for intervenor
  State of Vermont


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



       DOOLEY, J.   In this case, we are required to decide whether 15 V.S.A.
  § 448, which denies an adopted person's right of inheritance from
  collateral kin, is constitutional.  We conclude that the statute violates
  the common benefits provision of the Vermont Constitution, Chapter I,
  Article 7, and reverse the summary judgment granted by the Franklin
  Superior Court.

       The parties are sisters.  Plaintiff Gail McCallum is the daughter of
  Anita Murphy Seymour and the adopted daughter of Richard Seymour, who
  married plaintiff's mother after the death of plaintiff's father. 
  Plaintiff was adopted in 1952, when she was seven years old, one year after
  her mother's remarriage.  During that same year, defendant Janet Seymour
  was born of Richard and Anita Seymour, and the sisters grew up together as
  part of the Seymour family.

       Richard Seymour died in 1980.  In 1994, his brother, Philip Seymour,
  died intestate leaving no children, spouse or parents.  Both parties sought
  to share in the Philip Seymour estate as "legal representatives of [the]
  deceased brother" of the decedent.  The Franklin Probate

 

  Court, and thereafter the Franklin Superior Court, concluded that plaintiff
  could not share in the estate because of the provisions of 15 V.S.A. § 448:

     Upon the issuance of a final adoption decree the same rights,
     duties and obligations, and the same right of inheritance shall exist
     between the parties as though the person adopted had been the
     legitimate child of the person or persons making the adoption . .
     . .  The same right of inheritance shall exist between the person
     adopted and his issue on the one hand and natural or adopted
     children of the person or persons making the adoption and their
     issue on the other hand as though the person adopted had been the
     legitimate child of the person or persons making the adoption.
     However, THERE SHALL BE NO RIGHT OF INHERITANCE BETWEEN THE PERSON
     ADOPTED AND HIS ISSUE ON THE ONE HAND AND PREDECESSORS IN LINE OF
     DESCENT AND COLLATERAL KIN OF THE PERSON OR PERSONS MAKING THE
     ADOPTION ON THE OTHER HAND.
              
  (Emphasis added.)  Plaintiff does not challenge this construction of the
  statute.  Thus, the only question before us is whether the emphasized
  language of § 448 is constitutional, when applied to a person who was
  adopted as a child.

       Before we look at the legal standards that govern this challenge, it
  is helpful to look further at the statutory scheme and at the changing
  nature of adoption within Vermont and the United States as a whole.  Much
  of the history of the statutory scheme is set out in our recent decision in
  In re Raymond Estate, 161 Vt. 544, 641 A.2d 1342 (1994).  The first statute
  dealing directly with the inheritance rights of adopted persons was enacted
  in 1880. 1880, No. 137, § 6.  It provided that "the same right of
  inheritance shall exist between the parties as though the person adopted
  had been the legitimate child of the person or persons making the
  adoption." Id.  This Court interpreted the statute narrowly in In re
  Walworth's Estate, 85 Vt. 322, 333, 82 A. 7, 11 (1912) to allow the adopted
  person inheritance rights only from the adopting parents. Thus, under the
  1880 statute an adopted person had no right of descent from siblings or
  next of kin in the adoptive family.

       In 1945, the statute was amended to allow an adopted person to inherit
  by descent from "the natural or adopted children of the person or persons
  making the adoption and their issue." 1945, No. 41, § 18, codified as 15
  V.S.A. § 448.  At the same time, the Legislature explicitly

 

  denied inheritance by descent from "predecessors in line of descent and
  collateral kin of the person or persons making the adoption."  Id.  In
  1996, the statute was replaced with a new codification of adoption law
  which eliminates any distinction between adopted persons and natural
  children with respect to the inheritance rights in the adopting family. 
  See 15A V.S.A. § 1-104(1) (effective July 1, 1996).

       The 1945 and 1996 recodifications of the adoption laws embodied
  increased inheritance rights of the adopted person within the adopting
  family.  This liberalization occurred, however, within the context of a
  restrictive statutory scheme.  In a 1966 study, only a few states had
  explicitly restricted the inheritance rights of adopted persons within the
  adopting family, see Comment, Intestate Succession, Sociology and the
  Adopted Child, 11 Vill. L. Rev. 392, 396 (1966) (eight states).  In a few
  others, the relevant statute was silent and court decisions restricted
  inheritance rights of adopted persons, see id. at 397.  In the vast
  majority of states, the inheritance rights of adopted persons were
  identical to those of natural children within the adopting family.  Indeed,
  the modern trend has been to do away with such restrictions, and the
  scholarly writings are nearly unanimous in support of this policy.  For
  example, speaking of the Vermont statute, one legal commentator concluded,
  "The discrimination against the adoptee that occurs in Vermont . . . is
  bound to retard [the] . . . goal [of making him a full fledged member of
  his new family] by making the adopted child feel like a second-class family
  member," and generally described the adopted person's situation as that of
  "a two-headed freak."  J. Rein, Relatives by Blood, Adoption, and
  Association: Who Should Get and Why, 37 Vand. L. Rev. 711, 722, 806 (1984).

       We also find relevant the changing nature of adoption in American and
  Vermont society. When the Legislature first spoke on the inheritance rights
  of adopted persons, adoption was rare and was largely unregulated.  Once
  the parties to the adoption signed the proper instrument, the adoption was
  automatic as long as the probate court found "the law has been complied
  with." 1906 P.S. § 3270.

 

       By 1945, the year after the first liberalizing recodification, there
  were 223 adoption petitions in Vermont.  Vermont Dep't of Pub. Welfare,
  Biennial Report 1946-47, at 19 (1947). The number of petitions grew to 520
  per year in 1987.  See V. Flango & C. Flango, The Flow of Adoption
  Information from the States, at 19 (Nat'l Center on State Courts 1993).  In
  fiscal year 1996, 532 adoption petitions were filed.  R. Squires, Quarterly
  Caseflow Statistics for the Quarter Ending June 30, 1996, at 13 (Supreme
  Court of Vermont July 22, 1996).  This growth mirrors national trends.

       The nature of an adoption proceeding has changed greatly over the
  years.  The 1945 legislation, for example, introduced the requirement, for
  adoption of minors, of an investigation of the adopting home by the
  department of public welfare or a licensed child placing agency and a
  one-year trial period in which the child lives in the adopting home under
  the supervision of the department or the licensed child-placing agency. 
  1945, No. 41 §§ 6, 7.  Public regulation has been introduced to ensure that
  the adoption is in the best interests of the child.  See In re B.L.V.B.,
  160 Vt. 368, 371, 628 A.2d 1271, 1273 (1993).

       Some of the increase in frequency of adoption can be attributed to
  situations, like that present here, where a stepparent adopts a stepchild. 
  Increasing divorce rates and numbers of children born out of wedlock have
  made such adoptions more common in recent years.  See Comment, Intestate
  Succession and Stepparent Adoptions: Should Inheritance Rights of an
  Adopted Child be Determined by Blood or by Law?, Wisc. L. Rev. 321, 340-41
  (1988).

       The attitudes toward adopted children have also changed.  The English
  common law did not recognize adoption.  See L. Huard, The Law of Adoption:
  Ancient and Modern, 9 Vand. L. Rev. 743, 747 (1956).  Moreover, English law
  based descent and distribution solely on the principle of consanguinity,
  that is, the bloodline.  This heritage greatly influenced the reactions of
  American courts to descent and distribution issues for adopted persons. 
  For example, in 1925, the New Mexico Supreme Court wrote:

     Throughout the statutes of the several states consanguinity is

 

     fundamental in legislative fixing of descent and distribution of
     property.  True, the subject is one of legislative will; but
     legislation repudiating or eliminating blood relationship from the
     descent of property would be so abhorrent to every incident of our
     home and family life as to meet with general disapproval.  The
     courts should depart from this elemental guideship only when
     forced to do so by an inexorable statutory demand.  Our statute is
     inexorable in its demand that the estate of one dying shall go to his
     kindred; those of his blood, flesh of his flesh, bone of the bone.
     To such kindred, . . . and only to those who are kin, those of the
     same blood, does the chapter anywhere extend . . . .  The statute
     on adoption must be read into the statute of distribution and
     descent, but it is to be read in only to effectuate the precise terms
     of the statute on adoption . . . .

  Dodson v. Ward, 240 P. 991, 993 (N.M. 1925).  This Court reflected a
  similar attitude in 1924 when we stated of adopted persons that "strangers
  in blood, having no moral claim whatever based on kinship, may be legally
  placed in a class by themselves."  In re Estate of Hagar, 98 Vt. 235, 240,
  126 A. 507, 509 (1924).  In contrast, in 1977, the West Virginia Supreme
  Court found that the terms of a 1938 trust instrument covered adopted
  children, reasoning:

     While there may be testators and trustors who are so concerned
     with medieval concepts of "bloodline" and "heirs of the body" that
     they would truly be upset at the thought that their hard-won assets
     would one day pass into the hands of persons not of their blood,
     we cannot formulate general rules of law for the benefit of
     eccentrics.

  Wheeling Dollar Sav. & Trust Co. v. Hanes, 237 S.E.2d 499, 503 (W. Va.
  1977). As discussed below, the earlier attitudes to descent and
  distribution issues paralleled a view of adopted children as a lower class
  than natural offspring.

       Plaintiff has challenged the denial of her right to inherit from her
  uncle under both the Equal Protection Clause of the Fourteenth Amendment to
  the United States Constitution and Chapter I, Article 7 of the Vermont
  Constitution, which provides:

     That government is, or ought to be, instituted for the
     common benefit, protection, and security of the people, nation, or
     community, and not for the particular emolument or advantage of
     any single person, family, or set of persons, who are a part only
     of that community . . . .

  We choose to decide the case under Article 7.

 

       Unless a fundamental right or suspect class is involved, the inquiry
  under Article 7 is whether the statute is reasonably related to the
  promotion of a valid public purpose.(FN1)  See Lorrain v. Ryan, 160 Vt. 202,
  212, 628 A.2d 543, 550 (1993).  Thus, "[a] statute is unconstitutional, as
  applied, if it treats similarly situated persons differently and the
  different treatment does not rest upon some reasonable consideration of
  legislative policy."  Oxx v. Department of Taxes, 159 Vt. 371, 376, 618 A.2d 1321, 1324 (1992).  Here, the two similarly situated sisters are
  treated differently; the question is whether the difference rests on a
  reasonable consideration of legislative policy.

       Defendant and the Attorney General, as intervenor, rely on two
  policies to validate the different treatment: (1) the Legislature could
  presume that the intent of collateral relatives was that their property
  would pass only within the bloodline; and (2) the adoption of plaintiff
  represented a contract between her and her adoptive father that did not
  affect the interests and expectations of others.  In making these
  arguments, both draw heavily on the opinion of the Georgia Supreme Court in
  Nunnally v. Trust Co. Bank, 261 S.E.2d 621 (Ga. 1979), cert. denied, 445 U.S. 964 (1980), which upheld a Georgia statute that allowed an adopted
  person to inherit only from the adopting parents and provided, "To all
  other persons the adopted child shall stand as if no such act of adoption
  had been taken."  Id. at 623 (quoting 1941 Ga. Laws 305-06).  The court
  upheld the statute, reasoning:

     One aim of this statute is the state's interest in providing
     for the orderly disposition of property.  Through its laws of
     intestate succession, the state has established a method of descent
     based upon the presumed intention of the decedent.  Distinctions
     based upon preferences do exist in this area of the law.  It is
     presumed, by the state, that a person would wish for his or her
     property to pass within his or her bloodline, for example, and to
     children before grandchildren, and so forth.  As long as these
     distinctions are rationally related to the state's interest in seeking
     the most orderly system possible for passing title to property from


     

     one person to another so that the state knows at all times exactly
     what is owned by whom, then the distinctions are constitutionally
     sound.
     . . . .

     . . . However, the state assumes that one would rather have
     his or her property pass within the bloodline rather than have
     people with a bare legal relationship to them share.  We would
     consider this assumption a rational means to dispose of property in
     an orderly fashion.
     . . . .

     . . . The sole question is whether this assumption on the
     part of the state is one rational way to achieve the orderly
     disposition of property.  We conclude that it is.

  Id. at 623-24.

       For two primary reasons, we decline to follow the rationale of the
  Georgia court and conclude that presumed intent is not a reasonable
  consideration of legislative policy.  The effect of the presumed-intent
  rationale is to make statutory discrimination lawful as if it were private
  discrimination.  As plaintiff emphasizes, the rationale would as easily
  validate racial discrimination in addition to validating discrimination
  against adopted persons.

       The United States Supreme Court has been unwilling to rely on presumed
  intent to validate descent and distribution laws that prevent illegitimate
  children taking property by intestate succession.  See Trimble v. Gordon,
  430 U.S. 762, 775 n.16 (1977).  The Court reasoned:

     Appellees characterize the Illinois intestate succession law as a
     "statutory will."  Because intent is a central ingredient in the
     disposition of property by will, the theory that intestate succession
     laws are "statutory wills" based on the "presumed intent" of the
     citizens of the State may have some superficial appeal.  The theory
     proceeds from the initial premise that an individual could, if he
     wished, disinherit his illegitimate children in his will.  Because the
     statute merely reflects the intent of those citizens who failed to
     make a will, discrimination against children in intestate succession
     laws is said to be equally permissible.  The term "statutory will,"
     however, cannot blind us to the fact that intestate succession laws
     are acts of States, not individuals.

          Even if one assumed that a majority of citizens of the State
     preferred to discriminate against their illegitimate children, the



     sentiment would hardly be unanimous.  With respect to any
     individual, the argument of knowledge and approval of the state
     law is sheer fiction.  The issue therefore becomes where the
     burden of inertia in writing a will is to fall.  At least when the
     disadvantaged group has been a frequent target of discrimination,
     as illegitimates have, we doubt that a State constitutionally may
     place the burden on that group by invoking the theory of presumed
     intent.

  Id. (citations omitted) (emphasis added).  "The Constitution cannot control
  [private] prejudices but neither can it tolerate them.  Private biases may
  be outside the reach of the law, but the law cannot, directly or
  indirectly, give them effect."  Palmore v. Sidoti, 466 U.S. 429, 433
  (1984).

       We believe this reasoning applies here.  "[P]resumed intent . . . is
  an unacceptable justification for a decision by the state which the state
  would otherwise be unable to justify." Eskra v. Morton, 524 F.2d 9, 14 (7th
  Cir. 1975).  Although testators may make irrational and discriminatory
  choices in the distribution of their property, "when the choice is made by
  the government, the obligation to afford all persons equal protection of
  the law arises."  Id.

       Adopted persons have historically been a target of discrimination. 
  See Comment, Adoptees' Equal Protection Rights, 28 UCLA L. Rev. 1314,
  1334-39 (1981).  In the years following the legalization of adoption, "the
  adopted child was expected to work harder than a natural child and to repay
  his debt of gratitude."  Id. at 1336, n.132 (quoting B. Tizard, Adoption: A
  Second Chance 5 (1977)).  Even adopting parents frequently view adopted
  children as inferior to natural children.  See Comment, 28 UCLA L. Rev. at
  1337-38.  The message of § 448 is invidious and discriminatory:  "He is a
  member of the family, yet he is not, and the realization of this fact by
  him and other members of the family leaves an area of rejection which is,
  in many instances, more important psychologically than is concern over
  material values." In re Smith's Estate, 326 P.2d 400, 403 (Utah 1958) (J.
  Crockett, dissenting).

       We also conclude that presumed intent is an outdated rationale that is
  not reasonable today.  Equal treatment issues are often exacerbated by the
  passage of time.  In Choquette v. Perrault, 153 Vt. 45, 569 A.2d 455
  (1989), we confronted this problem in ruling on the validity

 

  of Vermont's fence viewer statute under Article 7.  The statute in
  Choquette provided that adjoining landowners were responsible for the cost
  and maintenance of a division fence between the properties to prevent the
  migration of animals across the boundary.  It allowed one landowner to
  construct the fence and force the adjoining owner to share in its cost.  In
  Choquette, the plaintiff, who maintained a herd of cattle, built the fence
  and sued the defendant, the adjoining landowner who had no domestic
  animals, for part of the cost.  In holding the statutory scheme
  unconstitutional in violation of Article 7, we noted:

     In the context of the land-use patterns of the nineteenth
     century, Vermont's fence law served the broad public interest.
     Though not all Vermonters were engaged in agricultural pursuits,
     the land was predominantly open and farmed, and most rural
     landowners were also livestock owners.  This is not the case
     today.  Much of the open farmland that existed at the turn of the
     century has reverted to woodlands or otherwise been developed.
     We can no longer assume that the fence law affects livestock
     owners almost exclusively.  As a result of changing land-use
     patterns, the law more and more often applies to landowners
     without livestock.  In such situations, the fence law is burdensome,
     arbitrary and confiscatory, and therefore cannot pass constitutional
     muster.

  Id. at 53-54, 569 A.2d  at 460.

       The situation here is much like that in Choquette.  In 1880, or even
  in 1945, the Legislature might have concluded that collateral kin would
  expect intestate succession to be limited to the bloodline and exclude
  adopted persons.  That presumption is no longer reasonable in 1996.  We no
  longer rely on antiquated notions of the adoptive relationship as "`a civil
  or contractual, an artificial, as contradistinguished from a natural
  status.'"  In re Raymond Estate, 161 Vt. at 548, 641 A.2d  at 1345 (quoting
  Weber v. Griffiths, 159 S.W.2d 670, 674 (Mo. 1942)).  We must acknowledge
  the vast cultural and social changes that have occurred and their effect on
  adoption practice and the public attitudes about adoption.  See B.L.V.B.,
  160 Vt. at 376, 628 A.2d  at 1276 ("our paramount concern should be with the
  effect of our laws on the reality of children's lives").

       The rationality of the statutory scheme is further eroded by its
  treatment of inheritance

 

  rights with respect to collateral kin of the natural parents of an adopted
  person.  Nothing in the relevant statutory scheme suggests these rights are
  affected by a termination of a natural parent's rights and the subsequent
  adoption of a person.  Thus, we are asked to accept that it is the presumed
  intent of collateral kin in the former family of the person that
  inheritance go to that person, but it is not the presumed intent of
  collateral kin in the current family of the person that the person can take
  by intestate succession.(FN2)  We find the proposition irrational.

       Without the logic of presumed intent, the argument that discrimination
  against adopted persons in intestate succession produces "the orderly
  disposition of property," Nunnally, 261 S.E.2d  at 623, has no force. 
  Property distribution is no less certain or orderly because adopted persons
  must share in that distribution.

       Defendant's second justification for the discrimination produced by §
  448 is that collateral or lineal relatives did not consent to the adoption. 
  Defendant contends that the adoption "contract" creates a legal
  relationship between the adoptive parents and the adopted child, but that
  the contract cannot bind those adoptive relatives who did not have any say
  in the adoption. See In re Eddins' Estate, 279 N.W. 244, 246 (S.D. 1938)
  (adoption statute interpreted as creating contractual relationship that
  limits "mutual rights and duties created by the adoption to the adopted
  child and the adopting parents, so that the right of inheritance cannot
  extend to any of the heirs either lineal or collateral of the adoptive
  parents"); F. Kuhlmann, Intestate Succession by and from the Adopted Child,
  28 Wash. U. L.Q. 221, 235 (1943).

       We find this justification meritless.  Whether or not an adoptee has
  some "contractual" relationship with her adoptive relatives is completely
  irrelevant to the question before us.  See

 

  In re Raymond Estate, 161 Vt. at 548, 641 A.2d  at 1345.  The argument that
  adoptees should not inherit from adoptive relatives who were not parties to
  the adoption contract "ignore[s] the fact that a child's birth always
  imposes a potential heir on the relatives of his biological parents, yet no
  one would suggest that the child should not inherit from his blood
  relatives because they had not consented to his conception."  J. Rein, 37
  Vand. L. Rev. at 721.  Under the intestate succession statute, the
  existence of a legal duty or obligation is not the basis upon which
  relatives inherit from their kin.

       The contractual theory is merely another way of reformulating the
  argument that an adoptee cannot inherit for lack of consanguinity with her
  adoptive kin.  Accepting the premise of the theory, the adopted person has
  parents, but does not have siblings, grandparents or uncles, aunts, and
  cousins.  The contractual theory rests on the same impermissible premise
  undergirding defendant's presumed-intent argument:  that the adopted child
  is a second-class member of her adoptive family.

       After examining the two rationales proffered to validate the statute,
  we conclude that it is not reasonably related to a valid public purpose, at
  least with respect to persons who are adopted during their minority.   We
  recognize that the situation may be "entirely different in the case of one
  adopted after attaining the age of majority," In re Estate of Hagar, 98 Vt.
  at 240, 126 A.  at 509, and expressly do not rule on the constitutionality
  of the statute in that context.

       The superior court's decision to grant summary judgment for defendant
  and deny it to plaintiff was erroneous.

       Reversed; judgment is hereby entered for plaintiff.  15 V.S.A. § 448
  is held to be unconstitutional insofar as it denies adopted children the
  right to inherit from collateral heirs, and plaintiff Gail McCallum is
  declared to be a lawful heir to the estate of Philip Seymour.


                              FOR THE COURT:



                              _______________________________________
                              Associate Justice




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                                  Footnotes

  
FN1.  Plaintiff has argued that adopted persons are a suspect class
  and our standard of review of the statute should be more active.  In view
  of our disposition, we do not reach this argument.

FN2.  We recognize that the rationality of this proposition is greater
  with respect to an in-family adoption, as occurred here.  The parental
  rights of plaintiff's mother were not terminated, and plaintiff has
  presumably maintained contact with the collateral kin of her mother and
  natural father.  Nevertheless, the statute fails to distinguish between
  in-family adoptions and others. The new statute modifies this rule.  See
  15A V.S.A. § 1-105(a).