# Estate of Calhoun

> California Supreme Court · April 26, 1955 · 44 Cal. 2d 378

URL: https://www.frixlaw.com/law-library/cases/9576275

## Case

- **Full name:** Estate of GEORGE A. CALHOUN, Deceased. DAISY OREB, as Administratrix, Etc., Appellant, v. WALTER WILLIAM PETTIT, Respondent
- **Court:** California Supreme Court
- **Decided:** April 26, 1955
- **Citations:** 44 Cal. 2d 378; 282 P.2d 880; 1955 Cal. LEXIS 238
- **Precedential status:** Published
- **Opinion:** Dissent by Traynor
- **Judges:** Edmonds, Traynor
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9576275

## Opinion text

TRAYNOR, J.
I dissent.
The interpretation placed upon the relevant statutes by the majority opinion results in consequences totally at variance with the objective of making the relationship between adoptive parents and their adopted child as close to the natural relationship as possible. (See Adoption of McDonald, 43 Cal.2d 447, 459 [ 274 P.2d 860 ]; In re Santos, 185 Cal. 127, 130 [ 195 P. 1055 ]; 2 Armstrong California Family Law, 1242-1243.) Children who have been raised together as brothers and sisters are set against one another whenever intestate succession from another than their parent is involved, and rights of natural kindred whose existence or identity will frequently be unknown to the adoptive family are allowed to intervene between foster brothers and sisters who have known no others. Although the Legislature has made detailed provisions for the issuance of new birth certificates and the sealing of original records in cases of adoption to promote and protect the adoptive relationship (Health & Saf. Code, §§ 10251-10254), in many cases of intestate succession this policy of secrecy will have to be evaded or the estates of adopted children will perforce escheat to the state. In other cases, natural grandchildren who have been adopted will be permitted to claim as pretermitted heirs of natural grandparents who had no knowledge of their existence or identity. (Prob. Code, § 90.) The statutes do not expressly provide for these results, and in my opinion by adopting the Probate Code in 1931 the Legislature did not accept and approve of the interpretation placed upon the superseded provisions of the Civil Code by In re Darling, 173 Cal. 221 [ 159 P. 606 ],
As the majority opinion points out, by enacting section 257 of the Probate Code, * the Legislature did not change the *389 existing law governing intestate succession by or from adopted children (see also Estate of Hebert, 42 Cal.App.2d 664, 667-668 [ 109 P.2d 729 ]), and that section only governs rights of inheritance between the adopted child and adoptive parents and the adopted child and natural parents. Thus, to determine whether an adopted child may inherit through an adoptive parent or whether natural relatives may inherit from an adopted child through its natural parent, it is necessary to construe the provisions of the Probate Code in the light of the provisions of the Civil Code governing the status of an adopted child.
Section 228 of the Civil Code provides: “A child when adopted, may take the family name of the person adopting. After adoption, the two shall sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties .of that relation.” Section 229 provides: “The parents of an adopted child are, from the time of the adoption, relieved of all parental duties toward, and all responsibility for, the child so adopted, and have no right over it. ’ ’ In interpreting these statutes in In re Darling, supra, the court stated: “The adoption statutes of this state do not purport to affect the relationship of any person other than that of the parents by blood, the adopting parents, and the child. It is the person adopting and the child who, by the express terms of the section, after adoption ‘shall sustain towards each other the legal relation of parent and child and have all the rights and he subject to all the duties of that relation, ’ and it is the parents by blood who, from the time of the adoption, are ‘relieved of all parental duties towards, and all responsibilities for the child so adopted, and have no right over it,’ and are, in the eyes of the law, no longer its parents. The adoption simply fixes the status of the child as to its former and adopted parents. To its grandparents by blood it continues to be a grandchild, and the child of its parents by blood. It does not acquire new grandparents in the persons of thé father and mother of an adopting parent.” ( 173 Cal. 221, 225-226 .) It is immediately apparent that the court in the Darling case failed to give effect to the provision of the statute that the adopted child shall have ‘ ‘ all of the rights” of “the legal relation of parent and child,” and accordingly recognized only a restricted and imperfect “legal relation of parent and child,” Thus a child is entitled to inherit from his grandparent only because he is the child of the deceased child of the grandparent and thus solely *390 because of the parent-child relationship. An adopted child is not given all of the rights of that relationship if he may not also inherit from his adoptive grandparent or through his adoptive parent in any case in which a natural child could do so.
The conclusion that the court erred in its interpretation of section 228 in the Darling case finds further support in legislative history. The forerunner of section 228, after providing that the adoptive parent and child should “bear toward each other the legal relation of parent and child,” and that the child should “enjoy all the legal rights and [be] subject to all the duties appertaining to that relation,” expressly stated “except, however, that if the adopted child leaves descendants, ascendants, brothers or sisters, the party adopting, nor his relatives, shall not inherit the estate of the adopted child. ...” (Stats. 1869-1870, pp. 530-531.) Thus the Legislature clearly recognized that the legal relation of parent and child would result in the child’s becoming a member of the adoptive family for all purposes of inheritance and expressly provided for the exceptions thought desirable, and it must be presumed that it intended to change the law when it deleted the exception in 1872. (In re Trombley, 31 Cal.2d 801, 806-807 [ 193 P.2d 734 ].)
The rationale of the Darling case has never been consistently followed. In other situations involving adopted children it has been recognized that the adoptive relationship necessarily affects the status of the adopted child with respect to third parties. Thus, even in In re Darling it was recognized that if an adopted child is to have “all of the rights” of the parent-child relationship, his children must in turn be allowed to inherit from their adoptive grandfather ( 173 Cal. 221, 225 ; see also Estate of Winchester, 140 Cal. 468, 469-470 [ 74 P. 10 ]), and in Estate of Pierce, 32 Cal.2d 265, 270 [ 196 P.2d 1 ], it was pointed out in discussing the anti-lapse statute (Prob. Code, § 92) that “ ‘The law . . . creating the status is found in section 228 of the Civil Code providing that “after adoption the two shall sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation.” . . . That such adopted child is to be considered an “issue” and a lineal descendant of the adopting parent, has been on several occasions recognized by our courts. ... To exclude adopted children from its scope would be to say that they are not entitled as to the adopting parent, to the full rights of natural *391 children, which is contrary to the express provision of the statute.’ ” (Quoting from Estate of Moore, 7 Cal.App.2d 722, 724 [ 47 P.2d 533 , 48 P.2d 28 ]; see also Estate of Tibbetts, 48 Cal.App.2d 177, 178 [ 119 P.2d 368 ]; Estate of Esposito, 57 Cal.App.2d 859, 865 [ 135 P.2d 167 ].) Although the Pierce, Tibbetts, and Esposito eases recognized the rule of the Darling ease, none of them explained why the provisions of section 228 must be read into section 92 of the Probate Code but be ignored in considering intestate succession through an adoptive parent, and the statutes themselves provide no basis for such a distinction. If section 228 of the Civil Code requires that the adopted child be allowed to take from his adoptive grandparent under the antilapse provisions of section 92 of the Probate Code, it must also require that he be allowed to take by intestate succession. In either situation he can take only because he is a child of the adoptive parent, and if the adoption changes his status with respect to the adoptive grandparent in one situation it must do so also in the other.
If it is true that the Legislature adopted the rule of the Darling case when it enacted the Probate Code in 1931, it might be suggested that the Moore, Tibbetts, and Esposito cases, decided since that time, should be disapproved. The Darling case did not, however, represent a settled rule in this state at the time it was decided (see Estate of Jobson, 164 Cal. 312, 317 [ 128 P. 938 , 43 L.R.A.N.S. 1062 ], expressly leaving the question open), and the cases that have followed it were all decided after the Probate Code was enacted. (Estate of Pence, 117 Cal.App. 323, 333 [ 4 P.2d 202 ]; Estate of Jones, 3 Cal.App.2d 395, 398 [ 39 P.2d 847 ]; Estate of Stewart, 30 Cal.App.2d 594, 596-597 [ 86 P.2d 1071 ]; Estate of Kruse, 120 Cal.App.2d 254, 255-256 [ 260 P.2d 969 ].) Moreover, in 1928, the court rejected the rationale of the Darling case in Estate of Mercer, 205 Cal. 506 [ 271 P. 1067 ], and held that an adopted child of a predeceased spouse could take under the predecessor of section 228 of the Probate Code on the death of the surviving spouse. “Appellant admits that the word ‘issue’ in several places in said section does include an adopted child. Again, an adopted child has been held to be a lineal descendant of the adopting parent. [Citations.] If this be conceded, it argues strongly for the rule that an adopted child is entitled to any legacy the law gives to the children of an adopting parent.” ( 205 Cal. 506, 511 .) Although the Mercer ease has been distinguished from the *392 Darling case on the ground that the adopted child in the Mercer case did not inherit through her predeceased adoptive mother but indirectly from her (see Estate of Kruse, 120 Cal.App.2d 254, 257 [ 260 P.2d 969 ]), this distinction is not justified in the light of the cases that have considered the character of succession under section 228. That section “is as much a part of the law of succession as any other, and those who inherit under it take as heirs of the decedent widow or widower, not as the heirs of the predeceased spouse. ’ ’ (Estate of Watts, 179 Cal. 20, 23 [ 175 P. 415 ].) “The respondent’s relationship to her deceased mother would be the determining factor in establishing her status as an heir of [her stepfather] ; but the title to the property she is entitled to receive by reason of that status would not relate back for its origin, to her mother. It would come directly to her from her stepfather. She would take as . . . [his] heir. ...” (Estate of Marshall, 42 Cal.App. 683, 687 [ 184 P. 43 ]; see also Estate of Jobson, 164 Cal. 312, 314 [ 128 P. 938 , 43 L.R.A.N.S. 1062 ].) Moreover, the Mercer case was not decided on the theory that the adopted child inherited indirectly from her predeceased adoptive parent but on the ground, as noted above, that she was ‘1 entitled to any legacy that the law gives to the children of an adopting parent.”
It thus appears that both before and after the enactment of the Probate Code the cases have been in essential conflict with respect to inheritance by or from adopted children. Given the conflicting theories relied upon in the cases decided before the enactment of the Probate Code and the fact that the last decision before that time was clearly not in harmony with the relationale of the Darling case, it cannot reasonably be said that the Legislature adopted the rule of that case when it enacted the Probate Code. Accordingly, this court is free to resolve the conflict in the decisions in the light of the clearly expressed policy of section 228 of the Civil Code and sections 10251 to 10254 of the Health and Safety Code. Whatever doubt there may have been with respect to that policy in the past, it is clear today that the objective of adoption is the “consummation of the closest conceivable counterpart of the relation of parent and child,” in which the child becomes a member “to all intents and purposes, of the family of the foster parents.” {In re Santos, supra, 185 Cal. 127, 130 ; see also Adoption of McDonald, supra, 43 Cal.2d 447, 459 [274 P.2d 860 ].) Only by treating the adoptive child *393 as a natural child for all purposes of inheritance is that objective obtained.
The order should be reversed.
Carter, J., concurred.
Appellant’s petition for a rehearing was denied May 25, 1955. Carter, J., and Traynor, J., were of the opinion that the petition should be granted.
“ An adopted child succeeds to the estate of one who has adopted him, the same as a natural child; and the person adopting succeeds to the estate of an adopted child, the same as a natural parent. An adopted child does not succeed to the estate of a natural parent when the relationship between them has been severed by the adoption, nor does such natural parent succeed to the estate of such adopted child.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9576275. Public record. Not legal advice.