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IN RE ESTATE OF MCCONNELL

June 1, 1967

In re ESTATE of Edward R. McCONNELL, also known as Eddie Burl, Deceased


The opinion of the court was delivered by: MATTHEWS

 To the first and final account of the administrator of the estate of the decedent, Edward R. McConnell, the District of Columbia has interposed an objection. The ground of the objection is that the administrator proposes to distribute the decedent's estate to Ernestine V. Prather and Nena Miller Jansen, that they are not heirs at law and next of kin of the decedent, and that the estate in question has escheated to the District of Columbia.

 Born in Pensacola, Florida, on December 19, 1908, the decedent died intestate in the District of Columbia in 1965. His natural father was unknown. His mother left him as an infant with Mamie and Arthur McConnell who reared him as their own child. They gave him the family name of McConnell, and provided for his education, both secular and religious.

 When the decedent was almost five years old he was baptized at St. Michael's Catholic Church in Pensacola, and described as the "adopted child of Arthur McConnell and Mamie McConnell." They are both dead, and it is unknown whether they agreed with the decedent's natural mother that they would formally adopt him. No court record has been found reflecting such an adoption.

 The distributees listed by the administrator in his final account - Mrs. Prather and Mrs. Jansen - are natural children of Mrs. McConnell, and were reared as sisters of the decedent. When the decedent applied for an insurance policy in 1960 he listed Mrs. Prather as the beneficiary, and described her as his sister. The administrator refers to Mrs. Prather and Mrs. Jansen as "half-sisters of the deceased by equitable adoption", and as deceased's only heirs at law and next of kin. On the other hand, the District of Columbia contends that the alleged half-sisters have no interest in the estate, and that it has escheated to the District.

 Florida being the situs of the alleged adoption in this case, the law of that state on equitable adoption has significance. The leading Florida case bearing thereon is Sheffield v. Barry, 153 Fla. 144, 14 So.2d 417, Supreme Court of Florida, 1943. Involved there was a contract between the child's natural mother and the foster parents whereby the foster parents would adopt the child as their own. The child was treated and considered by her adoptive parents throughout their lives as their daughter and was by them represented to the community as being their lawfully adopted daughter. Similarly the adoptive parents represented to the child that she bore such a status. It was not until both adoptive parents were dead that the child learned that no proceedings had ever been instituted to effect the adoption. She sued for specific performance of the adoption contract to entitle her to participate in the intestate estate of her foster father. Under these circumstances, the court recognized the concept of an equitable adoption so as to allow the adoptee to inherit as a natural child.

 It is clear from the case cited that Florida recognizes an equitable adoption. Had Edward R. McConnell, the decedent here, survived his foster parents and proved an adoption contract between his natural mother and his adoptive parents (Arthur and Mamie McConnell), he could have successfully claimed a portion of any intestate estate left by such adoptive parent or parents, even though formal adoption was never consummated.

 However, the situation presented in the instant case is different. The question here is whether the natural children of the foster parent may inherit from the adoptee (Edward R. McConnell) where the statutory proceedings of formal adoption have never been met. In order for Mrs. Prather and Mrs. Jansen to be able to inherit from the adoptee (Edward R. McConnell), it would seem that their natural parent, Mamie McConnell, through whom they claim, must have been able to inherit from the adoptee. The Florida Supreme Court in Sheffield v. Barry made it clear that what it was doing was not establishing an adoption, but, under the maxim "equity regards that as done which ought to have been done," was enforcing the adoption contract to secure for the adopted child a share in the estate of an intestate foster parent.

 The case of Heien v. Crabtree, 369 S.W.2d 28, Supreme Court of Texas, 1963, is factually similar to the case at bar. There Frank and Rosa Frei, husband and wife, had allegedly agreed with the mother of an illegitimate boy that they would legally adopt him. Such an adoption did not take place but the child made his home with Mr. and Mrs. Frei until he was 22 years of age, and was known as R. F. Frei. He died unmarried and intestate, Mr. and Mrs. Frei having predeceased him. The estate of R. F. Frei was claimed by the heirs of Mr. and Mrs. Frei. In affirming a judgment that such heirs take nothing, the Supreme Court of Texas said in part:

 
Here, the heirs of Frank and Rosa Frei are asserting a right of intestate succession to the estate of R. F. Frei. It was their burden to allege a legal right of succession. They could discharge that burden by alleging and proving that R. F. Frei was either a natural child or an adopted child of Frank and Rosa Frei through whom they claim. Admittedly he was neither.

 Another case in point is that of Rumans v. Lighthizer, 363 Mo. 125, 249 S.W.2d 397, at page 401, where the Supreme Court of Missouri said:

 
An equitable adoption functions to enforce the rights of the child under the agreement to adopt. The child is not chargeable with the adoptive parent's failure to record the deed, and the enforcement in equity of the agreement to adopt should not confer additional rights upon the adoptive parent. The right of inheritance from the child is a different right from that of the child to enforce the agreement to adopt. * * * [A] legal or statutory adoption, binding on all persons in accord with the statutory provisions, differs from an ...

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