Wilson v. Anderson

Annotate this Case

59 S.E.2d 836 (1950)

232 N.C. 212

WILSON v. ANDERSON et al.

No. 528.

Supreme Court of North Carolina.

June 9, 1950.

*839 John H. Small, Charlotte, for plaintiff.

Francis H. Fairley, Charlotte, for defendants.

WINBORNE, Justice.

Decision on the appeals of plaintiff and of defendant turns upon the answer to this question: Do the statutes of descent and distribution, as amended by 1947 Session Laws, Chapter 832, G.S. § 29-1(14) and Chapter 879, G.S. § 28-149(10), apply to an adoption made in the year 1919 under the statute pertaining to adoptions, Chapter 2 of Revisal of 1905, as it then existed? In the light of pertinent statutes, and of decisions of this Court, and of rules for interpreting legislative acts, we are of opinion and hold that this question merits a negative answer.

In this connection, it is appropriate to make these general observations as to the law relating to adoptions. The purpose of an adoption is to change the status of a child in relation to its adoptive parent. The State alone can determine when the relation of parent and child ceases, and in what respects it shall do so. Adoption is a status unknown to common law, and can be accomplished only in accordance with provisions of statutes enacted by the legislative branch of the State government. Under statutes providing for adoption through judicial proceedings instituted by filing a petition to a court of competent jurisdiction alleging certain requisite facts from which the court decrees the status and the right of the child, the court is said to act judicially in rendering the judgment. And the decree of adoption obtained by judicial proceedings is regarded as a judgment of the court, and is given the force and effect of any other judgment. 2 C.J.S., p. 367 et seq., Adoption of Children, §§ 1, 6, 40. See also Truelove v. Parker, 191 N.C. 430, 132 S.E. 295.

*840 Moreover, in reference to other laws, it is said that "All adoption laws and statutes in pari materia therewith in force in a state should be read together * * * as constituting one law." 2 C.J.S., p. 377, Adoption of Children, § 6(b). And here it is appropriate to note that in the year 1919, at the time plaintiff was adopted, the statutes of descent and distribution in this State contained no rules regarding the rights of adopted children in those respects. In this connection, an adopted child cannot usually inherit from relatives of the adoptive parent unless there is an express statute to that effect. 2 C.J.S. p. 453, Adoption of Children, § 63(b). And the decisions of this Court are to the effect that the law in force at the time of the adoption governs the right of the child to inherit; so that under the law as it existed in 1919 a child adopted for the life of the child, acquired by adoption the right to inherit the real estate of the adoptive parent, and to take his personal property, in the event he die intestate, but acquired no right to inherit or to take through him such property of his collateral relative who might die intestate. Grimes v. Grimes, 207 N.C. 778, 178 S.E. 573; Phillips v. Phillips, 227 N.C. 438, 42 S.E.2d 604.

But the General Assembly of 1947 inserted in the statutes of descent and distribution rules in that respect relating to adopted children, as follows:

Chapter 832 of 1947 Session Laws of North Carolina, amending the General Statutes relating to descents, as it pertains to adopted children, provides in Section 1 that Section 29-1 of the General Statutes be amended by adding a new rule to read as follows: "Rule 14. An adopted child shall be entitled by succession or inheritance to any real property by, through, and from its adoptive parents the same as if it were the natural, legitimate child of the adoptive parents."

The act provided that "All laws and clauses of laws in conflict herewith are hereby repealed" and that this "Act shall become effective July 1st, 1947." Sections 2, 3.

And Chapter 879 of 1947 Session Laws of North Carolina amending the General Statutes relating to distribution as it pertains to adopted children, provides in Section 1 that General Statutes be amended by adding to G.S. § 28-149 a new section to read as follows: "10. An adopted child shall be entitled by succession, inheritance, or distribution of personal property, including, without limiting the generality of the foregoing, and recovery of damages for the wrongful death of such adoptive parent by, through, and from its adoptive parents the same as if it were the natural, legitimate child of the adoptive parents." And the act provides that "All laws and clauses of laws in conflict herewith are hereby repealed", and that "This Act shall become effective July 1st, 1947." Sections 2, 3.

Hence, the question arises as to the effect, if any, of these amendments to the statutes of descent and distribution upon the rights of a child adopted under the adoption law as it existed in the year 1919 at the time plaintiff was adopted.

It is appropriate, therefore, to review the statutes of this State, enacted from time to time, providing for the adoption of minor children by judicial proceeding, and declaring the effect of orders of adoption entered in such proceedings.

The statute, Chapter 2 of the Revisal of 1905, pertaining to "Adoption of minor children", in effect on 25 April, 1919, the date on which plaintiff was adopted by Malcolm B. Hunter, gave to the jurisdictional court power to sanction and allow an adoption by an order granting letters of adoption. Rev. § 176. And in Section 177 the statute declared that "Such order, when made, shall have the effect forthwith to establish the relation of parent and child between the petitioner and the child during the minority or for the life of such child, according to the prayer of the petition, with all the duties, powers and rights belonging to the relationship of parent and child, and in case the adoption be for life of the child, and the petitioner die intestate, such order shall have the further effect to enable such child to inherit the real estate and entitle it to the personal estate of the petitioner in the same manner and to the same extent such child would have *841 been entitled to if such child had been the actual child of the person adopting it: Provided, such child shall not so inherit and be so entitled to the personal estate, if the petitioner specially set forth in his petition such to be his desire and intention."

This declaration is in practically the same language used by the General Assembly in the original act providing for adoption of minor children, Laws 1872-3, Chapter 155, Section 3, and as brought forward in the Code of 1883, Section 3.

Thus it appears that the General Assembly declared there that the order of adoption provided for as above stated, shall have two effects: (1) The establishment of the parent and child relationship between the petitioner and the adopted child, with all the duties, powers and rights belonging to such relationship. (2) The grant to the child a limited right of inheritance, that is, the right to inherit the real estate, and to take or share the personal property of the petitioner only.

It is also noted that the provisions of Rev. § 177 were brought forward in almost identical language and incorporated in the Consolidated Statutes of 1919 as Section 185, a part of Chapter 2 relative to proceedings for adoption of minors. C.S. § 185. The Consolidated Statutes of 1919 became effective August 1, 1919. See C.S. § 8107.

Moreover, in 1933 the entire statute, as it appeared in the Consolidated Statutes of 1919, Sections 182 to 191, both inclusive, was repealed and rewritten by the General Assembly. See Chapter 207, P.L.1933. As so rewritten subsection 5 of Section 1 deals with the effect of the order of adoption, and it is in almost the same wording as C.S. § 185. And in subsection 10 of the act it is provided that "All proceedings for the adoption of minors in Courts of this State are hereby validated and confirmed, and the orders and judgments therein are declared to be binding upon all parties to said proceedings and their privies and all other persons, until the orders or judgments shall be vacated as provided by law."

And in 1935 the entire statute, as so rewritten in the 1933 Act, P.L.1933, Chapter 207, was repealed and rewritten by the General Assembly. See Chapter 243, P.L.1935. And as so rewritten the provisions of the 1933 Act, P.L.1933, Chapter 207, in material aspect, particularly subsection 5 of Section 1 and subsection 10 as above set forth, were re-incorporated in almost identical language.

And it is noted that the adoption statute, as rewritten in 1935, Chapter 243, of P.L. 1935, was amended by the General Assembly of 1941. See Chapter 281, P.L.1941. As so amended, in Section 4 of the amended act, subsection 5 of Section 1 of the 1935 Act was rewritten in substantially the same language, except as to the effect of the order of adoption in respect to inheritance, etc. But in Section 8 of this 1941 Act, it is provided that the provisions of Section 4 of the Act shall apply only to adoptions hereafter made. See Phillips v. Phillips, supra.

And, in passing, it may be noted that the statute on adoption of minors became a part of General Statutes on its effective date, December 31, 1943. And it may also be noted that Chapter 885 of the 1947 Session Laws of North Carolina, purporting to rewrite Chapter 48 of the General Statutes relating to "Adoption of Minors" was declared inoperative and void. See In re advisory Opinion House Bill No. 65, 227 N.C. 708, 43 S.E.2d 73.

But the General Assembly of 1949 did rewrite said Chapter 48 of the General Statutes, expressly to incorporate the provisions of said Chapter 885 of 1947 Session Laws, to read as sections of the General Statutes. See Chapter 300 of 1949 Session Laws of North Carolina.

As so rewritten the Act provides in pertinent part: G.S. § 48-3, who may be adopted; G.S. § 48-4, who may adopt children; G.S. § 48-15, The petition for adoption, inter alia, must state: (6) that it is the desire of the petitioners that the relationship of parent and child shall be established between them and said child; and (8) the desire of the petitioners that the said child shall upon adoption, inherit real and personal property in accordance with the statutes of descent and distribution; *842 G.S. § 48-23, "Effect of final order. The final order forthwith shall establish the relationship of parent and child between the petitioners and the child, and, from the date of the signing of the final order of adoption, the child shall be entitled to inherit real and personal property from the adoptive parents in accordance with the statutes of descent and distribution"; G.S. § 48-28(b), "The final order of adoption shall have the force and effect of, and shall be entitled to, all the presumptions attached to a judgment rendered by a court of general jurisdiction"; G.S. § 48-34, "Past adoption proceedings validated.All proceedings for the adoption of minors in courts of this state are hereby validated and confirmed and the orders and judgments heretofore entered therein are declared to be binding upon all parties to said proceedings and their privies and all other persons, until such orders or judgments shall be vacated as provided by law; provided that this section shall not apply to litigation pending on the effective date of this Act in which the validity of a prior adoption proceeding is involved"; and G.S. § 48-35, "Prior proceedings not affected. Adoption proceedings pending on date of ratification shall not be affected, except that the provisions of G.S. § 48-34 shall apply thereto, and such proceedings shall be completed in accordance with provisions of the statutes in effect at the time such proceedings were instituted; provided that the petitioners in proceedings pending on date of ratification may discontinue such proceedings by taking voluntary nonsuits and, upon paying the costs accrued in such discontinued proceedings, may institute new proceedings under the provisions of this Act, in which cases of all of the provisions of this Act shall apply." And the Act provides that all laws and clauses of laws in conflict with this Act are repealed, and that the Act shall become effective upon ratification. It was ratified March 11, 1949.

Thus, an inspection of the foregoing provisions of the various acts amending and rewriting the provisions of the adoption statutes, reveals plainly a legislative intent that each shall have prospective effect.

Statutes are presumed to operate prospectively only. Hicks v. Kearney, 189 N.C. 316, 127 S.E. 205; Board of Com'rs of Moore County v. Blue, 190 N.C. 638, 130 S.E. 743; Sutton v. Davis, 205 N.C. 464, 171 S.E. 738. Indeed, in these acts, respectively, the General Assembly has expressly declared respect for all prior proceedings.

Moreover, this Court, in Grimes v. Grimes, supra, a case similar in factual situation to that in hand, in respect of an adoption prior to August 16, 1924, and speaking of the provisions of C.S. § 185 and Chapter 207, P.L.1933, had this to say: "Since the statute is in derogation of the common law and works a change in the canons of descent, it must be construed strictly and not so as to enlarge or confer any rights not clearly given. The statute gives no power to the adopted child to inherit through the adoptive parent, or from any source other than the `estate of the petitioner.' The statute limits the right to inherit to the property of the adoptive parent, and it cannot be construed to give the adopted child the right to inherit from his father's ancestors or other kindred, or to be a representative of them. By the adoption, the child is not made issue or heir general, nor is he made the kin of the kindred of the adoptive parent. The effect of the adoption is simply to create a personal status between the adoptive parent and the child adopted, so that the adopted child may inherit from the adoptive parent such estate of the adoptive parent as such parent, during his lifetime, might voluntarily have given to such child." [207 N.C. 778, 178 S.E. 574.]

And, continuing in the Grimes case: "The right to inherit property by reason of blood kinship is a natural one. The right to inherit property created by adoption is an artificial one. The status estabished by adoption proceedings is a contractual status, and while one may assume the status of a father to a stranger if he so desires, he cannot impose upon his kindred the status of kinship to such stranger. Adoption is `a judicial act creating between two persons certain relations, purely civil, *843 of paternity and filiation.' Black's Law Dictionary."

Again, "While the statute gives to the adopted child the right to inherit the real estate and to share in the personal estate of the adoptive parent, it leaves the adopted child in the same relationship to all others as he occupied before the adoption. * * * when he asserts his right as an adopted child of his uncle, he does so, not by virtue of the blood, but solely by virtue of the statute."

The case Phillips v. Phillips, supra, treated the subject in respect to an adoption in the year 1924. The opinion of this Court followed the decision in Grimes v. Grimes, supra.

The foregoing review of statutes and decisions leads to the conclusion that the rights of plaintiff are controlled and governed by the provisions of the adoption statute in effect on the date of her adoption, and that under such statute her right to inherit real estate, and to take or share in personal property is limited to that of her adoptive parents, and no other, unless, perchance, the rules shown in the amendments of 1947 to the statutes of descent and distribution enlarge her rights.

In this connection it may be conceded that the General Assembly of North Carolina has power to make and change statutes relative to the descent and distribution of property within the State, and that ordinarily the disposition of the property of a person dying intestate is governed by the statutes in force at the time of his death. But such statutes are subject to the general rules of statutory construction. And when necessary the statute should be considered in connection with other statutes affecting the same subject matter. 26 C.J.S., Descent and Distribution, § 6, pp. 1003-5.

Hence, when the acts of 1947 creating the new rules of descent and distribution relative to rights of an adopted child are read in connection with the statute pertaining to the adoption of minor children in effect at time plaintiff was adopted, it is seen that the right of plaintiff to inherit and take property is prescribed and limited by a court order which has the force and effect of a judgment of a court of competent jurisdiction.

Ordinarily the rule is that parties and their privies are bound by such judgment. Meachem v. Larus & Brothers Co., 212 N.C. 646, 194 S.E. 99.

And it is noted, by way of repetition, that the General Assembly in all of the acts, including Chapter 885 of 1947 Session Laws and the 1949 act, relating to adoption proceeding, hereinabove reviewed, has declared all such orders and judgments to be binding upon all the parties to said proceedings and their privies and all other persons, until vacated as provided by law.

Indeed, in this State a statute will not be given retroactive effect when such construction would interfere with vested rights, or with judgments already entered. Morrison v. McDonald, 113 N.C. 327, 18 S.E. 704; Com'rs v. Blue, supra; Piedmont Memorial Hospital v. Guilford County, 221 N.C. 308, 20 S.E.2d 332.

In Morrison v. McDonald, supra, the principle is epitomized in this headnote: "The legislature has no right, directly or indirectly, to annul in whole or in part a judgment already rendered or to reopen and rehear judgments by which the rights of the parties are finally adjudicated and vested." To the same effect are Com'rs v. Blue, supra, and Piedmont Memorial Hospital v. Guilford County, supra.

Therefore, it is held in the case in hand that the said new rules of descent, G.S. § 29-1(14), and of distribution, G.S. § 28-149(10) are effective prospectively only, and are unavailing to a child adopted under the adoption statute, Chapter 2 of Revisal of 1905.

In the light of the above holding, there is error in the judgment, from which appeal is taken, in so far as it holds (1) that the 1947 amendments to the statutes of descent and distribution control the descent of real estate and the distribution of personal property of which Harry P. Hunter died seized and possessed, and (2) that in respect of the said real estate plaintiff is entitled to an interest therein, taking through her *844 adoptive father, Malcolm B. Hunter, the share he would have inherited had he survived his brother, Harry P. Hunter, deceased. But there is no error in the holding that since plaintiff has no relation of kinship to the deceased she does not participate in the distribution of the personal property of his estate.

Hence, the cause will be remanded for further proceedings in accordance with this opinion.

On plaintiff's appealaffirmed.

On defendants' appealerror and remanded.