The rule accepted by the majority in this case is the outgrowth of what seems to me to be an erroneous conception and application of the doctrine that an adopted child may inherit from its natural parents as well as from its adoptive parents. The question as to whether a child adopted for a second time, may inherit from its first adoptive parents was first considered by a court of last resort in Patterson v. Browning, 146 Ind. 160,44 N.E. 993. The court sustained the right to inherit, saying:
"We see no reason why an adopted child may not inherit from its natural parents, and also from its *Page 691 adoptive parents. And if that is so, and we think it is, there is equally no reason why such adopted child might not inherit from both the first and second adoptive parents."
In that case, however, the first adoptive parent had died before the child's second adoption. It was, under the facts, wholly unnecessary to extend the rule with respect to an adopted child's right to inherit from its natural parents, for the child's right to inherit from the prior adoptive parent became fixed upon the latter's death. Nevertheless, the Indiana case has been regarded as authority for the subsequent decisions in which it is held that a second adoption does not bar a child's right to inherit from prior adoptive parents, even though the second adoption is consummated during the lifetime and with the consent of the latter.
This application of the rule has been challenged by the supreme court of Michigan in In re Klapp's Estate, 197 Mich. 615,164 N.W. 381, L.R.A. 1918A, 818, and by the supreme court of Oklahoma in In re Talley's Estate, 188 Okla. 338, 109 P.2d 495, 132 A.L.R. 773. These courts say, in substance, that there is a fundamental distinction between the relationship of a child to its natural parents and its relationship to adoptive parents; that, while, upon adoption, the natural parents lose the right to the custody and the services of the child and shift the burden of the child's care and protection to the adoptive parents, it does not, in fact, cease to be their child; that, in contemplation of statutes of descent, the child's right to inherit is fixed at birth and this right cannot be destroyed by adoption unless expressly provided by statute. These courts say, on the other hand, that the relationship between a child and its adoptive parents is created and maintained solely by statute; that the rights of the adoptive parents over the child, and its obligations to them, are completely abrogated *Page 692 by a second adoption; and that, after a second adoption, there is left no natural or legal tie between the child and its first foster parents to justify preserving (as a sole incident of the adoption) the right to inherit.
While at present this view of the supreme courts of Michigan and Oklahoma may be said to be against the weight of authority, I think it is sound, and that, if followed, it would obviate what may become a very perplexing problem: If a child twice adopted should die intestate and leave an estate of substance, whose child would it be in contemplation of the laws of descent? To say that the child's natural parents or its first adoptive parents are its heirs would put a high premium upon the casting off of natural and legally assumed obligations of parenthood while penalizing the second adoptive parents who have faithfully discharged their responsibility of rearing and caring for the child.
I think that there is no legal or moral justification for holding that a child is entitled to inherit from adoptive parents when, during their lifetime and with their consent, it has again been adopted by others. I therefore dissent.
BEALS, JEFFERS, and MALLERY, JJ., concur with BLAKE, J *Page 693