The appellant having been legally adopted in Massachusetts, under adoption laws similar to those in this state, that adoption should be recognized here. Ross v. Ross, 129 Mass. 243; Van Matre v. Sankey,148 Ill. 536; Calhoun v. Bryant, 28 S.D. 266. "There is . . . no doubt as to the general principle that the status acquired by adoption in a state or country having jurisdiction will be recognized both for the purpose of the descent of real, and the distribution of personal, property in other states or countries, at least in those whose laws provide for adoption." 1 Whart. Conf. Laws (3d ed.) 568.
Section 8, chapter 310, of the Acts and Resolves of Massachusetts of 1871, in force at the time of the adoption, and now, so far as the inheritable rights of the appellant in this case are concerned, provides that "a child or person so adopted shall be deemed for the purpose of inheritance, and all other legal consequences of the natural relation of parent and child, to be the child of the parent or parents by adoption, as if born to them by lawful wedlock, except that he shall not take property expressly limited to the heirs of the body or bodies of the parents by adoption, nor property from the lineal or collateral kindred of such parents by right of representation." Section 5, chapter 181, of the Public Statutes of New Hampshire, is follows: "The child so adopted shall bear the same relation to his adopting parents and their kindred in respect to the inheritance of property and all other incidents pertaining to the relation of parent and child as he would if he were the natural child of such *Page 511 parents, except he shall not take property expressly limited to the heirs of the body or bodies of the adopting parents, and if he dies under age or intestate, leaving property received by gift or inheritance from his natural kindred, such property shall be distributed as if there had been no decree of adoption."
It will be seen that by the statute of Massachusetts, where the appellant was adopted, she cannot inherit any of the estate of Mary C. Fitts, who was the sister of her adoptive father; but under the statute of this state, she is entitled to inherit a portion of that estate if she can be here treated as an adopted child. The question for decision, therefore, is whether the capacity of the appellant to inherit as an adopted child is governed and limited by the law of Massachusetts, where she was adopted, or by the law of this state, where the one from whom she seeks to inherit personal property had her domicile at the time of her death. The legality of the adoption is decided by the law of the state where the adoption took place; but that relation or status having been established, what the adopted child shall inherit should be determined in the case of personalty by the lex domicilii of the owner at the time of his decease, and real estate by the lex rei sitae. 14 Cyc. 21.
Ross v. Ross, supra, is regarded as the leading case upon this subject in this country; but the courts do not interpret the language of the opinion alike, and it is found cited upon both sides of the question under discussion. The case did not really call for a decision of the principle involved here, as will be seen by consideration of the facts, which were as follows: A child was adopted in Pennsylvania under a statute of adoption similar to Massachusetts, and subsequently the adoptive parents and child moved to Massachusetts, and the adoptive father died there, intestate, leaving real estate. The laws of Massachusetts and Pennsylvania gave an adopted child the same rights in the estate of the adopting father. Under that situation, the court decided that the adopted child was entitled to inherit the real estate of his adopting father. The only decision required was whether Massachusetts would recognize the adoption in Pennsylvania, for the rights of inheritance of the adopted child were the same in each state; therefore, any statements made by the court in that opinion bearing upon the question in dispute in this case are dicta. We do not understand, however, that Chief Justice Gray intended his opinion to convey the idea that an adopted child is to inherit in accordance with the laws of the state where he was adopted, without regard to the laws of *Page 512 the state where he is seeking to enforce his rights of inheritance, for he states: "It is a general principle, that the status or condition of a person, the relation in which he stands to another person, and by which he is qualified or made capable to take certain rights in that other's property, is fixed by the law of the domicile; and that this status and capacity are to be recognized and upheld in every other state, so far as they are not inconsistent with its own laws and policy."
The appellees cite and rely upon Meader v. Archer, 65 N.H. 214. In this case it appears that the defendant, as an adopted child, could not inherit under the Massachusetts law. Whether he could under the New Hampshire statute does not appear to have been considered. The appellees in their brief say that the following cases are practically to the same effect as Ross v. Ross, supra: Melvin v. Martin, 18 R. I. 650; Smith v. Kelly,23 Miss. 167; Finley v. Brown, 122 Tenn. 316; Gray v. Holmes,57 Kan. 217; Van Matre v. Sankey, supra. The above statement in relation to these cases is, generally speaking, true. In each of them the laws governing the descent and distribution of property to adopted children were the same in the state of the forum as they were in the state where the adoption took place; but it is apparent from reading the opinions that if the laws of the states had been different or inconsistent, the laws of the forum would have controlled.
In Van Matre v. Sankey, supra, the court ruled that a child legally adopted in Pennsylvania could inherit real estate owned by her adoptive father in Illinois, because the laws of Illinois and Pennsylvania relating thereto were the same; but the opinion plainly indicates that if the laws of Pennsylvania had been inconsistent with the laws of Illinois, those of the latter state would have governed. Keegan v. Geraghty, 101 Ill. 26, recognized the principle that in the descent of real estate the lex rei sitae should govern, without regard to the law of the state where the adoption took place. In that case the plaintiff was entitled to inherit by representation from collateral kindred of the adopting parent the realty in question, under the laws of Wisconsin, the state of adoption, but not in Illinois, where the real estate was situated, and it was held that the plaintiff could not recover, as the laws of Illinois must control. The court in the opinion said: "According to the principle laid down in the case of Ross v. Ross, supra, as we understand and accept it, the rights of inheritance acquired by the adopted child under the law of Wisconsin will be recognized and upheld in this state only so far *Page 513 as they be not inconsistent with our law of descent, so that if, by our own statute of adoption, the petitioner could not take in this case under our statute of descent, then she cannot take no matter what may be the law of Wisconsin in respect to the rights of an adopted child."
The appellees rely upon Estate of Sunderland, 60 Ia. 732. In this case the appellant, who was adopted in Louisiana, was entitled to inherit the real estate in controversy under the laws of Iowa, where it was situated, but not in Louisiana, and the court held that the laws of the latter state must control. The case, however, is sui generis. The adoption was by special act of the legislature of Louisiana, and the court ruled that the rights of the adopted child were defined and fixed by the special act of adoption.
In Shick v. Howe, 137 Ia. 249, cited by both parties, the adoption was in New York, the domicile of the owner of the property that the adopted child sought to inherit was in Iowa, and it appears that the rights of inheritance of the adopted child, so far as this case was concerned, were substantially the same in New York as in Iowa, both giving the adopted child the right of inheritance; but the court in the opinion construes the Iowa statute and bases the decision upon it, holding that the adopted child is entitled to receive the property under their statute. The laws of this state, the domicile of Mary C. Fitts at the time of her death, should govern in the distribution of her personalty, and the persons entitled to take the estate should be ascertained by our laws of distribution.
Ennis v. Smith, 14 How. 400, held that personal property, in case of intestacy, is to be distributed by the law of the domicile of the intestate at the time of his death; and the court states that "the rule prevails, also, in the ascertainment of the person who is entitled to take as heir or distributee. It decides whether primogeniture gives a right of preference, or an exclusive right to take the succession; whether a person is legitimate or not to take the succession; whether the person shall take per stirpes or per capita, and the nature and extent of the right of representation." The rule laid down in the above case as to the distribution of personality is fully recognized and upheld in this state. Goodall v. Marshall, 11 N.H. 88; Leach v. Pillsbury, 15 N.H. 137; Mann v. Carter, 74 N.H. 345, 349.
In Harrison v. Nixon, 9 Pet. 483, Justice Story held that who is meant by the words "heir-at-law" in a wilt disposing of personality is to be ascertained by the law of the domicile of the testator, and *Page 514 the estate is to be distributed in accordance with that law. "It is an established doctrine, not only of international law but of the municipal law of this country, that personal property has no locality. It is subject to the law which governs the person of the owner, as well in respect to the disposition of it by act inter vivos, as to its transmission by last will and testament, and by succession upon the owner dying intestate." Parsons v. Lyman, 20 N.Y. 103. "The nature of the interest of legatees is . . . regulated by the law of the testator's domicile." 2 Whart. Conf. Laws (3d ed.) 1291. "The primary probate jurisdiction of wills, and of everything pertaining to the settlement of estates, is exclusively in the place of the domicile of the deceased." Leonard v. Putnam, 51 N.H. 247, 250.
A marriage legal in one state is legal in every state; but the distributive share of the wife in her husband's estate is not ascertained by the law of the state where the marriage took place, but by the law of the husband's domicile at death. This principle is universally recognized and is not questioned by the appellees. On the other hand, they say that the status of marriage has no analogy to adoption, because it is a very ancient custom. Whatever may be said as to the status of marriage and adoption, the rights of inheritance as to both relations are governed largely by statute in this country; and no logical reason has been advanced, and none occurs to us, why the rights of a married woman in her husband's personalty should be determined in accordance with the laws of his last domicile, and the rights of an adopted child in relation to personalty by the laws where the adoption occurred, regardless of the domicile of the owner at the time of his death. "The law of the state where the marriage is consummated establishes the `relationship' of one to the other as husband and wife or parent and child, which is universally recognized, but the mere incidents flowing from that `status' or relationship are controlled by the law of the domicile of the parties or the situs of the property. The interest of the wife in the husband's property, whether she take as heir or otherwise, is wholly a creation of statute law precisely as is the right of inheritance between parent and child natural or adoptive, and we see no reasonable ground for distinction between the two as to the principle under discussion." Calhoun v. Bryant, supra.
Rights of inheritance in property do not accrue until the death of the owner; and the rights of an adopted child to inherit cannot be fixed and determined when the adoption takes place, for such *Page 515 rights may be changed, modified, or repealed by the legislature of the state. They are separate and distinct from the act of adoption. What an adopted child shall inherit is not ascertained by the law in force at the time of the adoption, but at the death of him from whom he seeks to take. The relationship of an adopted child to his adopting parents is not subject to change; the inheritable capacity of such child may, however, be changed at any time. Consequently, the rights of the adopted child to inherit property should be determined when and where inheritance is sought, in accordance with the ordinary rule.
In Dodin v. Dodin, 16 N. Y. App. Div. 42, the question was whether the adopted child could inherit. As the law was at the time of the adoption, she could not; but such right was granted to adopted children after her adoption and prior to the death of her adopting father. The court in the opinion said: "The adoption pursuant to the act of 1873 created the relation of parent and child. . . . This being the existing relation between them, the status of the child in respect to her inheritable capacity was distinct from and independent of the act of adoption, and was subject to legislative control. The endowing her with the former by a later statute had no effect upon the act of adoption. It merely modified the law of descent as applied to children before then adopted, as well as those who should thereafter be placed in that relation."
The recent case of Sorenson v. Rasmussen, 114 Minn. 324, held that a statute giving the same right of inheritance to adopted children that natural children enjoyed applied to children adopted before the passage of the act, and the court stated: "Rights by inheritance in an estate do not accrue until the death of the owner intestate. A law providing for the future descent of property is prospective. The statute in question, at its passage, related to future inheritances by adopted children. It conferred or took away no present right. A law of inheritance making a change in the prior law as to adopted children — a numerous, permanent, existing class of persons — does not differ in principle from a law making a change in the rules of inheritance of property by force of the relationship of husband or wife or through the relationship between other classes, and no different rule of construction of a statute effecting such change is required." To the same effect are Theobald v. Smith, 103 N. Y. App. Div. 200, and Gilliam v. Trust Co., 186 N.Y. 127.
The most recent case upon the subject under discussion is Calhoun v. Bryant, supra, in which the court in a well considered opinion *Page 516 held that in the descent of realty the lex rei sitae controlled. The conclusion of the court is as follows: "We believe the reasoning of these cases, as well as the great weight of authority, sustains the broad proposition that adoption in another state or country, between persons who might lawfully enter into the same relationship under the law of the former, will be recognized, but that the incidents growing out of such relationship, such as the right of inheritance of real property, will be governed by the law of the situs of property."
The latest textbooks upon the subject of domestic relations recognize the rule that the descent of personalty to adopted children is controlled by the lex domicilii of the owner. The status of "an adopted child is determined by the law of the state of the adoption; but his right of inheritance, as an adopted child, by the law of the domicile of the deceased." Peck Dom. Rel., s. 106; Spencer Dom. Rel., s. 465; Rodgers Dom. Rel., s. 460.
The uniform administration of the law of descent demands that, as to personalty, the law of the owner's domicile at death shall control the inheritable rights of adopted children, the same as of husband and wife, or of other classes. The determination of this case in conformity with the claim of the appellees would result in distributing personalty of one domiciled at her decease in this state, and subject to our laws, in accordance with the laws of Massachusetts.
The appellant, being legally related to the intestate in the same degree as the appellees, would inherit per capita, not per stirpes, and can therefore take only one fourth of the estate. Nichols v. Shepard,63 N.H. 391.
Appeal sustained: decree of probate court set aside.
WALKER, YOUNG, and PEASLEE, JJ., concurred.