¶1specially concurring: Petitioners are descendants of their deceased adopting parent under section 49 of the Probate Act. Their status as such descendants is created by section 4-1, subparagraph 5 of the Adoption Act [Jones Ill. Stats. Ann. 19.012(14), subpar. (5)], and not by section 14 of the Probate Act as held by the majority of the court. Subparagraph 5 of section 4-1 is practically identical with section 3 of the Adoption Act of 1874, which it superseded. It makes an adopted child, ‘ ‘ to all legal intents and purposes,” the child of the adopting parents, thereby investing him with all the rights of a natural child or descendant of the adopting parents. Section 14 of the Probate Act is a continuation of section 5 of the Adoption Act of 1874, with the word “descendant” substituted for “child.” It lessens the rights of an adopted child under section 4-1 of the present Adoption Act. It makes an adopted child a descendant of the adopting parent “for purposes of inheritance” only, but denies him the right of inheritance of a natural child in respect to property descending from the lineal or collateral kindred of the adopting parent or property expressly limited to the body of such parent. Section 49 of the Probate Act is, in effect, a continuation of section 11 of the former statute of descent (Laws 1871-1872 page 352), with the word “descendant” substituted for the words “child or grandchild” and “issue.” It is what is sometimes called an anti-lapse statute, enacted for the purpose of preventing property becoming intestate property through the lapse of a devise or legacy to a descendant of the testator who predeceases him. The descendant who takes a devise or legacy of his deceased ancestor under section 49, does not take intestate property but as a substituted devisee or legatee. The general rule is stated in Warren v. Prescott, 84 Me. 483, cited in the majority opinion. In considering statutes substantially the same as those of Illinois, the court said: “. . . when an adopted child takes a legacy given by will to one of his adopting parents, he does not take as an heir at law of the parent’s kindred. He does not ‘inherit’ the legacy from the testator. lie takes as a lineal descendant of the legatee, by force of the statute. . . . Not as a lineal descendant by birth; but as a statutory lineal descendant; and as lawfully in the line of descent as if he were placed there by birth.” (Italics mine.) Since an adopted child taking property under section 49 does not take by inheritance, it necessarily follows that his status as a statutory descendant cannot be controlled by a statute limited to defining his rights of inheritance. This is clearly stated in In re Buell’s Estate, 167 Ore. 295, also cited in the majority opinion. In determining the right of an adopted child to take property devised and bequeathed to her deceased adopting parent, as a lineal descendant of such parent, under statutes substantially similar to ours, the court said (pages 312-313): “The decision in the instant case depends upon the construction of the adoption and anti-lapse statutes and not upon the statutes concerning intestate succession.” Section 4-1, subparagraph 5 of our Adoption Act made petitioners, “to all legal intents and purposes,” the children of their deceased adopting parent. They were, therefore, under Warren v. Prescott, and In re Buell’s Estate, supra, and other cases consistent therewith cited in the majority opinion, statutory descendants of their deceased adopting parent under section 49 of the Probate Act.
336 Ill. App. 322
Harmount v. Michael
Decided January 24, 1949
Appellate Court of Illinois · decided 1949-01-24
Cited by 7 later decisions — most recently February 1965
7 state decisions
Key passage — most relied on by later courts
“"* * * There is no doubt that a child born in lawful wedlock can so take. But, in this particular, does an adopted child possess the same rights? We think so. * * * And, when an adopted child takes a legacy given by will to one of his adopting parents, he does not take as an heir at law of the parent's kindred. He does not `inherit' the legacy from the testator. "He takes as a lineal descendant of the legatee, by force of the statute. * * * Not as a lineal descendant by birth, but as a statutory lineal descendant, and as lawfully in the line of descent as if he were placed there by birth. It is as competent for the legislature to place a child by adoption in direct line of descent as for the common law to place a child by birth there. And that is precisely what the legislature has done, and what it undoubtedly intended to do, when, in strong and emphatic language, it declared that a legally adopted child becomes, to all intents and purposes, the child of the adopters, the same as if he were born to them in lawful wedlock * * *. This conclusion is, in our judgment, as indisputable as a mathematical demonstration." (emphasis supplied.)”
quoted by 2 later decisions, including Parker v. Blaine, 172 So. 2d 268 - In Re Baker's Estate
Relies on Warren v. Prescott
Good law ✅— No negative treatment on recordhow we know
Decided 1949-01-24
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