MR. JUSTICE LEWE delivered the opinion of the court.
This is an appeal from an order of the circuit court on appeal from the probate court. In the probate court the blood relatives of Barbara Leichtenberg, deceased, were adjudged to be her heirs. Victor Mueller objected to the declaration of heirship made by that court and appealed to the circuit court, which held that the decedent left, as her sole heir and next of kin, Victor Mueller. James J. Remich and other blood relatives of the decedent, hereinafter called "Remich," appealed to this court.
In 1918 John Leichtenberg and Barbara, his wife, residents of Chicago having no children, filed a petition
In September 1920 the Muellers filed a petition in Washington county, Wisconsin, to adopt their child Victor. The Leichtenbergs gave their written consent to the adoption. The order of adoption provided, among other things, that "the said child Victor Mueller shall be fully restored to his natural parents as though no prior adoption had ever been made." John Leichtenberg died before his wife, and Barbara Leichtenberg left her surviving lineal and collateral kindred. Both of the Leichtenbergs died after the adoption of Victor Mueller by his natural parents.
Remich contends that Victor Mueller, being a twice-adopted child who only lived with his first adoptive parents two weeks and was then readopted by his natural parents, cannot inherit from his first adoptive parents where no property vested in him before the adoption. This precise question has never been determined by the courts of review of Illinois.
In support of his contention Remich relies on In re Estate of Talley (Harris v. Burgess), 188 Okla. 338,
In In re Estate of Talley, 188 Okla. 338, 109 P.2d 495, it appears that Thomas Talley and wife Cynthia adopted a boy aged fourteen. The boy and his father, his only living parent, gave their written consent to the adoption. Five years later the natural parent filed a petition for adoption. The Talleys and the boy filed written consents. The adoption order provided that the former adoption decree "become null and void and for all intents and purposes as if the same had never been made and entered by this court." Cynthia Talley died after the boy was readopted by his father. The boy filed an application to vacate the final decree of distribution in the Cynthia Talley estate, claiming a share in the estate based on the rule that an adopted child omitted, but not intentionally, from the will of an adoptive parent, inherits by the laws of intestacy. The court, at page 496, said: "But suppose, as in this case, there is a second adoption prior to the death of either of the first adoptive parents. Does the child still inherit from one of said former adoptive parents who thereafter dies ... It is obvious that cases are not in point wherein the second adoption takes place after the death of the first adoptive parents. In such a situation the inheritance occurs at the instant of death, if at all. At that time there is no second adoptive parent. There may never be any. The estate vests. It is immaterial whether later a second adoption occurs. Under such circumstances it has been held, and we think rightly so, that the adopted person inherits from the first adoptive parent." (Citing Russell's Adm'r v. Russell's Guardian, 14 Ky. Law Rep. 236; and Patterson
In In re Estate of Klapp, 197 Mich. 615, 164 N.W. 381, Harlan Austin, aged three, was adopted by Cyrus Klapp and his wife. Upon the death of the adoptive mother the child was adopted a second time by the Pulsiphers. Upon the death of Cyrus Klapp, the first adoptive father, the question of heirship arose. The court said, at page 381: "Assuming that the second proceeding is valid, I am of the opinion that, when it was signed and assented to by the parties and approved by the probate court, it ipso facto had the effect of revoking or superseding the order made in the first proceeding. When the original order was revoked, it carried with it all the reciprocal rights and duties which sprang into existence when the order was made. Thereafter the first adoptive father was no longer entitled to the custody of the child; neither was he entitled to its services. He was no longer obligated to care for, educate and support the child. If the new adoption destroyed these rights and obligations, why did it not destroy the child's right to inherit, since that right was dependent for its existence upon the same assent, the same agreement, which created the other relations? When the reciprocal rights and duties and the right to inherit are all created by the same instrument, signed by the parties and approved by the probate court, by what process of reasoning can the conclusion be reached that a new and second order will put an end to all the rights, duties and incidents of the contract except the right to inherit?"
In In re Estate of Zaepfel, 102 Cal.App.2d 774, 228 P.2d 600, Sylvia Jones, the petitioner, was born in Connecticut. Afterward her parents were divorced. The father married the decedent, Helen N. Zaepfel, who
In In re Estate of Hack, 166 Minn. 35, 207 N.W. 17, John Hack by special act of the legislature adopted Catherine Hack. This act was repealed ten years later. Thereafter John Hack died, leaving all his property to John W. Hack. Three children of Catherine Hack
Victor Mueller asserts that the preponderance of authority in other jurisdictions supports his contention that a child adopted a second time retains its right to inherit from its first adoptive parents, even though the first adoptive parents are living at the time of the second adoption.
In the instant case the trial judge in the circuit court rested his decision on In re Estate of Tilliski, 390 Ill. 273. In that case the adoptive parent of Sarah A. Martin died before the death of her natural mother, Mary E. Tilliski. The sole question there was whether an adopted child could inherit a child's share of the estate of her mother. The court held that the right of an adopted child to inherit from its natural parents is not lost by becoming the adopted child of another. We do not regard the question decided in In re Estate of Tilliski as being determinative of the issue presented in this case, for the reason that Mueller claims the right to inherit from his first adoptive parent who died long after his adoption by his natural parents.
In support of his position Victor Mueller also cites Holmes v. Curl, 189 Iowa 246, 178 N.W. 406; Dreyer v. Schrick, 105 Kans. 495, 185 Pac. 30; Hawkins v. Hawkins, 218 Ark. 423, 236 S.W.2d 733; Villier v. Watson, 168 Ky. 631, 182 S.W. 869; and In re Estate of Egley, 16 Wn.2d 681, 134 P.2d 943.
In Holmes v. Curl, 189 Iowa 246, 178 N.W. 406, a minor child was adopted by written articles as provided by the Iowa statute. The sole surviving parent consented. The father of the child readopted it while the former adoptive parents were alive. The court held that the adoption was for the benefit of the child and
In In re Estate of Egley, 16 Wn.2d 681, 134 P.2d 943, it appears that in 1923 the Egleys adopted a child nineteen months of age. When four and a half years old the child was adopted by the Carstens. Mr. Egley died in 1936 and Mrs. Egley in 1941. The adopted child claimed she was entitled to inherit from her first adoptive father and mother who died long after the second adoption. The court held that the right to inherit cannot be set aside by a subsequent adoption, citing Patterson v. Browning, 146 Ind. 160, 44 N.E. 993.
In Hawkins v. Hawkins, 218 Ark. 423, 236 S.W.2d 733 the question presented was whether an adopted child having been later adopted can inherit from its first adoptive parents. There the court was persuaded by the reasoning in Villier v. Watson, 168 Ky. 631, 182 S.W. 869. In the Villier case, Paul Villier, a divorced man, sought to adopt two children aged seven and twelve respectively. Their parents were dead and the children were in the custody of their grandfather Henry Watson. A decree of adoption was entered in 1906. After the children had resided with Villier for about four years, Henry Watson, the grandfather, readopted them with Villier's consent. Villier died in 1915. The court said, at page 872: "All the authorities agree, that the fact of adoption does not lose the adopted child's right of inheritance from his parents. With this right existing, it would be difficult to see why a child could not inherit from two or more persons who might by adoption bestow that right upon him. If
In the view which we take of this case it is unnecessary to consider the other points raised.
For the reasons stated, the judgment order is reversed and the cause is remanded with directions to
Judgment order reversed with directions.
KILEY, P.J. and FEINBERG, J., concur.