The Adopted Child and Testamentary Class Gifts

John Richard Steincipher, The Adopted Child and Testamentary Class Gifts, 1 Gonz. L. Rev. 31 (1966).


Although adoption had been established in ancient civilizations as a means of perpetuating the family by the creation of heirs, due to feudalism’s affinity for consanguinity and the subscription to the maxim “Solus Deus facit haerdem, non homo” (God alone makes the heir, not man), this institution was not recognized by the common law. When finally introduced in this country by statute during the middle nineteenth century, disparate views were taken as to the purpose of adoption; some jurisdictions
saw this as being intended for the furtherance of the child’s welfare, while others adhered to the Roman
civil law’s intendment of creating heirs. Even among the latter jurisdictions, inheritance rights were treated quite incidentally, with the primary emphasis being placed upon the qualifications and procedures for adoption.’ The failure to adequately define the adoptee’s status, coupled with the common law’s favoritism of blood relatives in succession matters, invoked immediate resistance to attempts to bring adoptees within class gifts prescribed by private instruments. Even where legislation acknowledged the adoptee’s status as an “heir,” his status as a” child” was often denied.  As stated in Schafer v. Eneu:

Adopted children are not children of the person by whom they have been adopted, and the Act of Assembly does not attempt the impossibility of making them such . . . The right to inherit from the adopting parent is made complete, but the identity of the child is not changed. One adopted has the rights of a child without being a child. . . .

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