MACCALLUM v. SEYMOUR'S ADMINISTRATOR, 165 Vt. 452 (1996)

686 A.2d 935

Gail MacCallum v. Philip Seymour's Administrator, Janet Seymour

No. 95-233

Supreme Court of Vermont.

Opinion Filed September 13, 1996

1. Constitutional Law — Equal Protection — Particular Cases

In an action where plaintiff, adopted as a child,
challenged, under both the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution and
Chapter I, Article 7 of the Vermont Constitution, the denial
of her right to inherit from her uncle, plaintiff, as an
adopted child, was not in a suspect class. Unless a
fundamental right or suspect class is involved, an inquiry
under Article 7 of the Vermont Constitution is whether the
statute is reasonably related to the promotion of a valid
public purpose. U.S. Const. amend. XIV; Vt. Const. ch. I, art.
7.

2. Descent and Distribution — Statutory Provisions — Adopted
Children

Where two sisters, who were similarly situated except that
one was adopted as a child, were treated differently in
regards to their rights of inheritance from collateral kin,
based on 15 V.S.A. § 488, it could not be argued that the
Legislature could presume the intent of collateral relatives
was that their property would pass only within the bloodline;
presumed intent is not a reasonable consideration of
legislative policy since the effect of the presumed-intent
rationale is to make statutory discrimination lawful as if it
were private discrimination. 15 V.S.A. 448; Vt. Const. ch. I,
art. 7.

3. Descent and Distribution — Statutory Provisions — Adopted
Children

In an action challenging the constitutional application of
15 V.S.A. § 448, where two sisters, who were similarly
situated except that one was adopted as a child, were treated
differently in regards to their rights of inheritance from
collateral kin, the defendant's justification for the
discrimination produced by § 448 was that collateral or lineal
relatives did not consent to the adoption, and the adoption
"contract" creates a legal relationship between the adoptive
parents and the adopted child, which cannot bind those
adoptive relatives who did not have any say in the adoption.
However, the contractual theory rests on an impermissible
premise that the adopted child is a second-class member of the
adoptive family; thus the discriminatory application of
15 V.S.A. § 448 is not reasonably related to a valid public
purpose, and the section is unconstitutional insofar as it
denies adopted children the right to inherit from collateral
heirs. 15 V.S.A. § 448; Vt. Const. ch. I, art. 7.

Appeal from summary judgment motion granted by superior court
based on 15 V.S.A. § 448, which denies an adopted person's right
of inheritance from collateral kin, to determine whether statute
was constitutional. Franklin Superior Court, Kilburn, J.,
presiding. Reversed.
Page 453

Sandra E. Levine of Cheney, Brock, Saudek & Mullett, P.C.,
Montpelier, for Plaintiff-Appellant.

Kenneth Appel, St. Albans, for Defendant-Appellee.

Jeffrey L. Amestoy, Attorney General, William H. Rice,
Assistant Attorney General, and Albert H. Coons, Jr., Montpelier,
for Intervenor State of Vermont.

Present: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

Dooley, J.

In this case, we are required to decide whether
15 V.S.A. § 448, which denies an adopted person's right of inheritance from
collateral kin, is constitutional. We conclude that the statute
violates the common benefits provision of the Vermont
Constitution, Chapter I, Article 7, and reverse the summary
judgment granted by the Franklin Superior Court.

The parties are sisters. Plaintiff Gail MacCallum is the
daughter of Anita Murphy Seymour and the adopted daughter of
Richard Seymour, who married plaintiff's mother after the death
of plaintiff's father. Plaintiff was adopted in 1952, when she
was seven years old, one year after her mother's remarriage.
During that same year, defendant Janet Seymour was born of
Richard and Anita Seymour, and the sisters grew up together as
part of the Seymour family.

Richard Seymour died in 1980. In 1994, his brother, Philip
Seymour, died intestate leaving no children, spouse or parents.
Both parties sought to share in the Philip Seymour estate as
"legal representatives of [the] deceased brother" of the
decedent. The Franklin Probate Court, and thereafter the
Franklin Superior Court, concluded that plaintiff could not
share in the estate because of the provisions of
15 V.S.A. § 448:

Upon the issuance of a final adoption decree the same
rights, duties and obligations, and the same right of
inheritance shall exist between the parties as though the
person adopted had been the legitimate child of the person or
persons making the adoption . . . . The same right of
inheritance shall exist between the person adopted and his
issue on the one hand and natural or adopted children of the
person or persons making the adoption and their issue on
the other hand as though the person adopted had been the
legitimate child of the person or persons making the adoption.
However, there shall be no right of inheritance between
the person adopted and his issue on the one hand and
predecessors in line of descent and collateral kin of the
Page 454
person or persons making the adoption on the other
hand. . . .

(Emphasis added.) Plaintiff does not challenge this
construction of the statute. Thus, the only question before us
is whether the emphasized language of § 448 is constitutional,
when applied to a person who was adopted as a child.

Before we look at the legal standards that govern this
challenge, it is helpful to look further at the statutory scheme
and at the changing nature of adoption within Vermont and the
United States as a whole. Much of the history of the statutory
scheme is set out in our recent decision in In re Raymond
Estate, 161 Vt. 544, 641 A.2d 1342 (1994). The first statute
dealing directly with the inheritance rights of adopted persons
was enacted in 1880. 1880, No. 137, § 6. It provided that "the
same right of inheritance shall exist between the parties as
though the person adopted had been the legitimate child of the
person or persons making the adoption." Id. This Court
interpreted the statute narrowly in In re Walworth's Estate,
85 Vt. 322, 333, 82 A. 7, 11 (1912), to allow the adopted person
inheritance rights only from the adopting parents. Thus, under
the 1880 statute an adopted person had no right of descent from
siblings or next of kin in the adoptive family.

In 1945, the statute was amended to allow an adopted person
to inherit by descent from "the natural or adopted children of
the person or persons making the adoption and their issue."
1945, No. 41, § 18, codified as 15 V.S.A. § 448. At the same
time, the Legislature explicitly denied inheritance by descent
from "predecessors in line of descent and collateral kin of the
person or persons making the adoption." Id. In 1996, the statute
was replaced with a new codification of adoption law which
eliminates any distinction between adopted persons and natural
children with respect to the inheritance rights in the adopting
family. See 15A V.S.A. § 1-104(1) (effective July 1, 1996).

The 1945 and 1996 recodifications of the adoption laws
embodied increased inheritance rights of the adopted person
within the adopting family. This liberalization occurred,
however, within the context of a restrictive statutory scheme.
In a 1966 study, only a few states had explicitly restricted the
inheritance rights of adopted persons within the adopting
family. See Comment, Intestate Succession, Sociology and the
Adopted Child, 11 Vill. L. Rev. 392, 396 (1966) (eight states).
In a few others, the relevant statute was silent and court
decisions restricted inheritance rights of adopted persons. See
id. at 397. In the vast majority of states, the inheritance
rights of adopted persons
Page 455
were identical to those of natural children within the adopting
family. Indeed, the modern trend has been to do away with such
restrictions, and the scholarly writings are nearly unanimous in
support of this policy. For example, speaking of the Vermont
statute, one legal commentator concluded, "The discrimination
against the adoptee that occurs in Vermont . . . is bound to
retard [the] . . . goal [of making him a full fledged member of
his new family] by making the adopted child feel like a
second-class family member," and generally described the adopted
person's situation as that of "a two-headed freak." J. Rein,
Relatives by Blood, Adoption, and Association: Who Should Get
What and Why, 37 Vand. L. Rev. 711, 722, 806 (1984).

We also find relevant the changing nature of adoption in
American and Vermont society. When the Legislature first spoke
on the inheritance rights of adopted persons, adoption was rare
and was largely unregulated. Once the parties to the adoption
signed the proper instrument, the adoption was automatic as long
as the probate court found "the law has been complied with."
1906 P.S. § 3270.

By 1945, the year after the first liberalizing
recodification, there were 223 adoption petitions in Vermont.
Vermont Dep't of Pub. Welfare, Biennial Report 1946-47, at 19
(1947). The number of petitions grew to 520 per year in 1987.
See V. Flango & C. Flango, The Flow of Adoption Information from
the States, at 19 (Nat'l Center on State Courts 1993). In fiscal
year 1996, 532 adoption petitions were filed. R. Squires,
Quarterly Caseflow Statistics for the Quarter Ending June 30,
1996, at 13 (Supreme Court of Vermont July 22, 1996). This
growth mirrors national trends.

The nature of an adoption proceeding has changed greatly over
the years. The 1945 legislation, for example, introduced the
requirement, for adoption of minors, of an investigation of the
adopting home by the department of public welfare or a licensed
child-placing agency and a one-year trial period in which the
child lives in the adopting home under the supervision of the
department or the licensed child-placing agency. 1945, No. 41,
§§ 6, 7. Public regulation has been introduced to ensure that
the adoption is in the best interests of the child. See In re
B.L.V.B., 160 Vt. 368, 371, 628 A.2d 1271, 1273 (1993).

Some of the increase in frequency of adoption can be
attributed to situations, like that present here, where a
stepparent adopts a stepchild. Increasing divorce rates and
numbers of children born out of wedlock have made such adoptions
more common in recent years. See Comment, Intestate Succession
and Stepparent Adoptions: Should Inheritance Rights of an
Adopted Child be Determined by Blood or by Law?, Wis. L. Rev.
321, 340-41 (1988).
Page 456

The attitudes toward adopted children have also changed. The
English common law did not recognize adoption. See L. Huard,
The Law of Adoption: Ancient and Modern, 9 Vand. L. Rev. 743,
747 (1956). Moreover, English law based descent and distribution
solely on the principle of consanguinity, that is, the
bloodline. This heritage greatly influenced the reactions of
American courts to descent and distribution issues for adopted
persons. For example, in 1925, the New Mexico Supreme Court
wrote:

Throughout the statutes of the several states consanguinity
is fundamental in legislative fixing of descent and
distribution of property. True, the subject is one of
legislative will; but legislation repudiating or eliminating
blood relationship from the descent of property would be so
abhorrent to every incident of our home and family life as to
meet with general disapproval. The courts should depart from
this elemental guideship only when forced to do so by an
inexorable statutory demand. Our statute is inexorable in its
demand that the estate of one dying shall go to his kindred;
those of his blood, flesh of his flesh, bone of the bone. To
such kindred, . . . and only to those who are kin, those of
the same blood, does the chapter anywhere extend . . . . The
statute on adoption must be read into the statute of
distribution and descent, but it is to be read in only to
effectuate the precise terms of the statute on adoption . . ..

Dodson v. Ward, 240 P. 991, 993 (N.M. 1925). This Court
reflected a similar attitude in 1924 when we stated of adopted
persons that "strangers in blood, having no moral claim whatever
based on kinship, may be legally placed in a class by
themselves." In re Estate of Hagar, 98 Vt. 235, 240, 126 A. 507,
509 (1924). In contrast, in 1977, the West Virginia Supreme
Court found that the terms of a 1938 trust instrument covered
adopted children, reasoning:

While there may be testators and trustors who are so
concerned with medieval concepts of "bloodline" and "heirs
of the body" that they would truly be upset at the thought
that their hard-won assets would one day pass into the
hands of persons not of their blood, we cannot formulate
general rules of law for the benefit of eccentrics.

Wheeling Dollar Sav. & Trust Co. v. Hanes, 237 S.E.2d 499, 503
(W. Va. 1977). As discussed below, the earlier attitudes to
descent and
Page 457
distribution issues paralleled a view of adopted children as a
lower class than natural offspring.

Plaintiff has challenged the denial of her right to inherit
from her uncle under both the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution and
Chapter I, Article 7 of the Vermont Constitution, which
provides:

That government is, or ought to be, instituted for the
common benefit, protection, and security of the people,
nation, or community, and not for the particular emolument
or advantage of any single person, family, or set of persons,
who are a part only of that community . . . .

We choose to decide the case under Article 7.

Unless a fundamental right or suspect class is involved, the
inquiry under Article 7 is whether the statute is reasonably
related to the promotion of a valid public purpose.[fn1] See
Lorrain v. Ryan, 160 Vt. 202, 212, 628 A.2d 543, 550 (1993).
Thus, "[a] statute is unconstitutional, as applied, if it treats
similarly situated persons differently and the different
treatment does not rest upon some reasonable consideration of
legislative policy." Oxx v. Department of Taxes, 159 Vt. 371,
376, 618 A.2d 1321, 1324 (1992). Here, the two similarly situated
sisters are treated differently; the question is whether the
difference rests on a reasonable consideration of legislative
policy.

Defendant and the Attorney General, as intervenor, rely on
two policies to validate the different treatment: (1) the
Legislature could presume that the intent of collateral
relatives was that their property would pass only within the
bloodline; and (2) the adoption of plaintiff represented a
contract between her and her adoptive father that did not affect
the interests and expectations of others. In making these
arguments, both draw heavily on the opinion of the Georgia
Supreme Court in Nunnally v. Trust Co. Bank, 261 S.E.2d 621 (Ga.
1979), Cert. denied, 445 U.S. 964 (1980), which upheld a Georgia
statute that allowed an adopted person to inherit only from the
adopting parents and provided, "To all other persons the adopted
child shall stand as if no such act of adoption had been taken."
Id. at 623 (quoting 1941 Ga. Laws 305-06). The court upheld the
statute, reasoning:
Page 458

One aim of this statute is the state's interest in providing
for the orderly disposition of property. Through its laws of
intestate succession, the state has established a method of
descent based upon the presumed intention of the decedent.
Distinctions based on preferences do exist in this area of law.
It is presumed, by the state, that a person would wish for his
or her property to pass within his or her bloodline, for
example, and to children before grandchildren, and so forth.
As long as these distinctions are rationally related to the
state's interest in seeking the most orderly system possible
for passing title to property from one person to another so
that the state knows at all times exactly what is owned by
whom, then the distinctions are constitutionally sound.

. . . .

. . . However, the state assumes that one would rather
have his or her property pass within the bloodline rather
than have people with a bare legal relationship to them
share. We would consider this assumption a rational means
to dispose of property in an orderly fashion.

. . . The sole question is whether this assumption on the
part of the state is one rational way to achieve the orderly
disposition of property. We conclude that it is.

Id. at 623-24.

For two primary reasons, we decline to follow the rationale
of the Georgia court and conclude that presumed intent is not a
reasonable consideration of legislative policy. The effect of the
presumed-intent rationale is to make statutory discrimination
lawful as if it were private discrimination. As plaintiff
emphasizes, the rationale would as easily validate racial
discrimination in addition to validating discrimination against
adopted persons.

The United States Supreme Court has been unwilling to rely on
presumed intent to validate descent and distribution laws that
prevent illegitimate children taking property by intestate
succession. See Trimble v. Gordon, 430 U.S. 762, 775 n.16
(1977). The Court reasoned:

Appellees characterize the Illinois intestate succession
law as a "statutory will." Because intent is a central
ingredient in the disposition of property by will, the theory
that
Page 459
intestate succession laws are "statutory wills" based on the
"presumed intent" of the citizens of the State may have
some superficial appeal. The theory proceeds from the initial
premise that an individual could, if he wished, disinherit his
illegitimate children in his will. Because the statute merely
reflects the intent of those citizens who failed to make a
will, discrimination against illegitimate children in
intestate succession laws is said to be equally permissible.
The term "statutory will," however, cannot blind us to the
fact that intestate succession laws are acts of States, not of
individuals. Under the Fourteenth Amendment this is a
fundamental difference.

Even if one assumed that a majority of the citizens of the
State preferred to discriminate against their illegitimate
children, the sentiment hardly would be unanimous. With
respect to any individual, the argument of knowledge and
approval of the state law is sheer fiction. The issue therefore
becomes where the burden of inertia in writing a will is to
fall. At least when the disadvantaged group has been a
frequent target of discrimination, as illegitimates have, we
doubt that a State constitutionally may place the burden on
that group by invoking the theory of "presumed intent."

Id. (citations omitted) (emphasis added). "The Constitution
cannot control [private] prejudices but neither can it tolerate
them. Private biases may be outside the reach of the law, but
the law cannot, directly or indirectly, give them effect."
Palmore v. Sidoti, 466 U.S. 429, 433 (1984).

We believe this reasoning applies here. "[P]resumed intent .
. . is an unacceptable justification for a decision by the state
which the state would otherwise be unable to justify." Eskra v.
Morton, 524 F.2d 9, 14 (7th Cir. 1975). Although testators may
make irrational and discriminatory choices in the distribution
of their property, "when the choice is made by the government,
the obligation to afford all persons equal protection of the
laws arises." Id.

Adopted persons have historically been a target of
discrimination. See Comment, Adoptees' Equal Protection Rights,
28 UCLA L. Rev. 1314, 1334-39 (1981). In the years following the
legalization of adoption, "the adopted child was expected to
work harder than a natural child and to repay his debt of
gratitude." Id. at 1336, n.132 (quoting B. Tizard, Adoption: A
Second Chance 5 (1977)). Even adopting parents frequently view
adopted children as inferior to
Page 460
natural children. See Comment, 28 UCLA L. Rev. at 1337-38. The
message of § 448 is invidious and discriminatory: "He is a member
of the family, yet he is not, and the realization of this fact
by him and other members of the family leaves an area of
rejection which is, in many instances, more important
psychologically than is concern over material values." In re
Smith's Estate, 326 P.2d 400, 403 (Utah 1958) (Crockett, J.,
dissenting).

We also conclude that presumed intent is an outdated
rationale that is not reasonable today. Equal treatment issues
are often exacerbated by the passage of time. In Choquette v.
Perrault, 153 Vt. 45, 569 A.2d 455 (1989), we confronted this
problem in ruling on the validity of Vermont's fence viewer
statute under Article 7. The statute in Choquette provided that
adjoining landowners were responsible for the cost and
maintenance of a division fence between the properties to
prevent the migration of animals across the boundary. It allowed
one landowner to construct the fence and force the adjoining
owner to share in its cost. In Choquette, the plaintiff, who
maintained a herd of cattle, built the fence and sued the
defendant, the adjoining landowner who had no domestic animals,
for part of the cost. In holding the statutory scheme
unconstitutional in violation of Article 7, we noted:

In the context of the land-use patterns of the nineteenth
century, Vermont's fence law served the broad public interest.
Though not all Vermonters were engaged in agricultural
pursuits, the land was predominantly open and farmed, and
most rural landowners were also livestock owners. This is
not the case today. Much of the open farmland that existed
at the turn of the century has reverted to woodlands or
otherwise been developed. We can no longer assume that the
fence law affects livestock owners almost exclusively. As a
result of changing land-use patterns, the law more and more
often applies to landowners without livestock. In such
situations, the fence law is burdensome, arbitrary and
confiscatory, and therefore cannot pass constitutional muster.

Id. at 53-54, 569 A.2d at 460.

The situation here is much like that in Choquette. In 1880,
or even in 1945, the Legislature might have concluded that
collateral kin would expect intestate succession to be limited
to the bloodline and exclude adopted persons. That presumption
is no longer reasonable in
Page 461
1996. We no longer rely on antiquated notions of the adoptive
relationship as "`a civil or contractual, an artificial, as
contradistinguished from a natural status.'" In re Raymond
Estate, 161 Vt. at 548, 641 A.2d at 1345 (quoting Weber v.
Griffiths, 159 S.W.2d 670, 674 (Mo. 1942)). We must acknowledge
the vast cultural and social changes that have occurred and
their effect on adoption practice and the public attitudes about
adoption. See B.L.V.B., 160 Vt. at 376, 628 A.2d at 1276 ("our
paramount concern should be with the effect of our laws on the
reality of children's lives").

The rationality of the statutory scheme is further eroded by
its treatment of inheritance rights with respect to collateral
kin of the natural parents of an adopted person. Nothing in the
relevant statutory scheme suggests these rights are affected by
a termination of a natural parent's rights and the subsequent
adoption of a person. Thus, we are asked to accept that it is
the presumed intent of collateral kin in the former family of
the person that inheritance go to that person, but it is not the
presumed intent of collateral kin in the current family of the
person that the person can take by intestate succession.[fn2] We
find the proposition irrational.

Without the logic of presumed intent, the argument that
discrimination against adopted persons in intestate succession
produces "the orderly disposition of property," Nunnally, 261
S.E.2d at 623, has no force. Property distribution is no less
certain or orderly because adopted persons must share in that
distribution.

Defendant's second justification for the discrimination
produced by § 448 is that collateral or lineal relatives did not
consent to the adoption. Defendant contends that the adoption
"contract" creates a legal relationship between the adoptive
parents and the adopted child, but that the contract cannot bind
those adoptive relatives who did not have any say in the
adoption. See In re Eddins' Estate, 279 N.W. 244, 246 (S.D.
1938) (adoption statute interpreted as creating contractual
relationship that limits "mutual rights and duties created by
the adoption to the adopted child and the adopting parents, so
that the right of inheritance cannot extend to any of the heirs
either lineal or collateral of the adoptive parents"); F.
Page 462
Kuhlmann, Intestate Succession by and from the Adopted Child, 28
Wn. U. L.Q. 221, 235 (1943).

We find this justification meritless. Whether or not an
adoptee has some "contractual" relationship with her adoptive
relatives is completely irrelevant to the question before us.
See In re Raymond Estate, 161 Vt. at 548, 641 A.2d at 1345. The
argument that adoptees should not inherit from adoptive
relatives who were not parties to the adoption contract
"ignore[s] the fact that a child's birth always imposes a
potential heir on the relatives of his biological parents, yet
no one would suggest that the child should not inherit from his
blood relatives because they had not consented to his
conception." J. Rein, 37 Vand. L. Rev. at 721. Under the
intestate succession statute, the existence of a legal duty or
obligation is not the basis upon which relatives inherit from
their kin.

The contractual theory is merely another way of reformulating
the argument that an adoptee cannot inherit for lack of
consanguinity with her adoptive kin. Accepting the premise of
the theory, the adopted person has parents, but does not have
siblings, grandparents or uncles, aunts, and cousins. The
contractual theory rests on the same impermissible premise
undergirding defendant's presumed-intent argument: that the
adopted child is a second-class member of her adoptive family.

After examining the two rationales proffered to validate the
statute, we conclude that it is not reasonably related to a valid
public purpose, at least with respect to persons who are adopted
during their minority. We recognize that the situation may be
"entirely different in the case of one adopted after attaining
the age of majority," In re Estate of Hagar, 98 Vt. at 240, 126
A. at 509, and expressly do not rule on the constitutionality of
the statute in that context.

The superior court's decision to grant summary judgment for
defendant and deny it to plaintiff was erroneous.

Reversed; judgment is hereby entered for plaintiff.
15 V.S.A. § 448 is held to be unconstitutional insofar as it denies
adopted children the right to inherit from collateral heirs, and
plaintiff Gail MacCallum is declared to be a lawful heir to the
estate of Philip Seymour.

[fn1] Plaintiff has argued that adopted persons are a suspect
class and our standard of review of the statute should be more
active. In view of our disposition, we do not reach this
argument.

[fn2] We recognize that the rationality of this proposition is
greater with respect to an in-family adoption, as occurred here.
The parental rights of plaintiff's mother were not terminated,
and plaintiff has presumably maintained contact with the
collateral kin of her mother and natural father. Nevertheless,
the statute fails to distinguish between in-family adoptions and
others. The new statute modifies this rule. See
15A V.S.A. § 1-105(a).
Page 463