The deceased, Mary C. Fitts, died a resident of this state. Her estate is here administered, and distribution thereof must be in accordance with the law of this state. Upon the facts stated, it is to be equally divided among her next of kin. P. S., c. 196, s. 1, cl. IV. The appellant, if she is of the next of kin, is entitled to share therein; if not, she takes nothing. She is not next of kin by nature, but claims that relation by force of a decree of a probate court of Massachusetts making her the *Page 517 child by adoption of a brother of the deceased. Not being next by nature, she can be next of kin in law only by force of some statute operating upon the Massachusetts decree of adoption. She is not given that relation by the Massachusetts statute, for that expressly excludes a child adopted as she was from inheriting from the lineal or collateral kindred of her adopted parents. Mass. Acts and Resolves 1871, c. 310, s. 8; Meader v. Archer,65 N.H. 214. As the status of next of kin to the deceased was not created for her in Massachusetts, the question whether, if Massachusetts had attempted to create that relation, such relationship so created would as matter of comity be recognized in this state is not presented. Not having acquired the necessary relationship to the deceased by the Massachusetts decree, she claims to have done so under the New Hampshire statute of adoption. No decree has been rendered by New Hampshire court creating the relationship; and if one had been rendered here at the time of her adoption in Massachusetts, the decree would have been void because of non-residence of the parties. Foster v. Waterman, 124 Mass. 592.
Chapter 181 of the Public Statutes provides for the adoption of child by an inhabitant of this state, by proceedings in the probate court. Sections 5 and 6 declare the effect of such adoption upon the relationship of the child to the adopting and the natural parents of the child. Section 5 is: "The child so adopted shall bear the same relation to his adopting parents and their kindred in respect to the inheritance of property . . . as he would if he were the natural child of such parents," with an exception not material in the present case. If the appellant had been adopted under this statute, she would be next of kin to the deceased because the statute makes that relationship or status result from the decree. There is no other statute upon the subject, and the plaintiff cannot maintain her claim except under it. To sustain her claim, the intent of the legislature in enacting it must have been not only to declare the rights of inheritance resulting from the jurisdiction conferred upon the probate court, but to provide for the right of inheritance of children wherever adopted, with whatever rights acquired by the decree of adoption.
The statute of adoption first passed in 1862 was plainly copied in the main from the Massachusetts statute. Laws 1862, c. 2603; Mass. G. S. (1860), c. 110. It is said of the Massachusetts statute by Chief Justice Gray in Ross v. Ross, 129 Mass. 243, 267: "But it appears to us . . . that the legislature, throughout these *Page 518 statutes, had solely in view adoption by or of inhabitants of this commonwealth, and did not intend either to regulate the manner, or to define the effects, of adoption by and of inhabitants of other states according to the law of their domicile." As this language was used in 1878, after the enactment of the statute here, it is not conclusive of the legislative meaning in adopting similar provisions, but it is an authority of great weight upon the probable legislative purpose. Libby v. Hutchinson,72 N.H. 190, 192; Parsons v. Parsons, 67 N.H. 419.
A statute of Massachusetts passed in 1876 provided that "an inhabitant of another state, adopted as a child in accordance with the laws thereof, shall upon proof of such fact be entitled in this commonwealth to the same rights, as regards succession to property, that he would have enjoyed in the state where such act of adoption was executed," except as the same conflicted with the law of Massachusetts. Mass. P. S., c. 148, s. 9. No such. statute has been passed here; and although the statutes have been three times revised since 1862, the provision for inheritance by adopted children has never been placed in the general chapter upon inheritance, but has always been retained in the chapter upon adoption. It is fairly inferable that the provision has always been regarded here, as in Massachusetts, as relating to the specific subject of adoption under the law of the state, and not as a general provision for inheritance by adopted children.
Since the construction given the language by Judge Gray in 1876, the section has been twice reenacted here without change. While it cannot be assumed that the legislature intended to adopt the Massachusetts construction as in the case of prior judicial construction by the courts of this state (Burgess v. Burgess, 71 N.H. 293; Parsons v. Durham, 70 N.H. 44,45), the fact of such prior judicial construction is evidence entitled to consideration. The language of the section, the purpose of its adoption, its treatment in subsequent revisions, and the judicial construction elsewhere given to the same language, all lead to the conclusion that the legislature in enacting section 4, chapter 2603, Laws of 1862, and section 5, chapter 181, of the Public Statutes, did not understand they were defining the relations of adopting parents and their kindred with children by adoption under the decrees of courts other than our own.
It is to be kept in mind that the question is not whether the appellant has acquired the status of an adopted child of a brother *Page 519 of the deceased intestate, but whether she has acquired the status of next of kin to her so as to be entitled under New Hampshire law to share in the distribution of the estate.
It is held in Ross v. Ross, 129 Mass. 243, and other cases following it (see 16 Ann. Cas. 779), that a status of inheritance created by a decree of adoption of another state will be recognized in the state of distribution, where the creation of such rights by adoption is not in conflict with the laws or policy of the state. In Meader v. Archer, 65 N.H. 214, the defendant, to prevail, must have established a capacity to inherit through his adopted father. No such capacity having been conferred upon him by the decree of adoption under which he claimed, it was not thought necessary to consider the New Hampshire statute. It may be that the question of the effect of the New Hampshire statute was not suggested. This possibility detracts from the value of the decision as an authority. In Estate of Sunderland, 60 Ia. 732, the adopted child was held not to possess rights of inheritance given by the Iowa statute to children there adopted, which were excluded by the foreign statute under which the adoption was claimed. To the same effect is Boaz v. Swinney, 79 Kan. 332.
It is a curious misuse of comity to give to a foreign statute and judgment an effect never intended by the authors of the statute, and thereby to deprive of their property persons who would be confirmed in its possession in the state where the statute was passed and the judgment was rendered. It is said that the foreign adjudication establishes the status of an adopted child, that the right of inheritance is independent of the adoption, and that though the existence of the status is determined by the law of the domicile at the time of its creation, the law of distribution is the law of the domicile of the deceased. Calhoun v. Bryant, 28 S.D. 266. Assuming that there is such a status now known to the law as that of adopted child, the discussion returns to the question: Does the statute of New Hampshire (P. S., c. 181, s. 5) make the appellant by force of the Massachusetts decree next of kin to the deceased? If there were no New Hampshire statute upon the subject, the appellant, not being made next of kin by the Massachusetts decree, could have no possible ground upon which to make such claim. The section of the adoption statute is the only one relating to the subject and was not passed to effect such a purpose. I think the probate court was right and that the appeal should be dismissed. *Page 520